Monday, July 10, 2006

Clinton impeachment revisited yet again

Sandy Levinson

I note that Cass Sunstein begins his reply to Marty Lederman by writing that "[t]he Clinton impeachment was clearly unconstitutional, but very few conservative law professors (or lawyers) were willing to say so, at least in public." I find it interesting that Sunstein is willing to use the word "clearly" in this context, since, with respect, I don't find it so clear. It certainly seems to be plausible to believe that Clinton committed perjury. I suppose the argument is that this doesn't count as a "high crime and misdemeanor." That may be so, but if and only if one adopts an originalist methodology vis-a-vis the meaning of the Impeachment Clause, a methodology notably rejected by most of Clinton's supporters (and, I think, by and large by Sunstein). And, as I have argued elsewhere (and will be arguing in my forthcoming book), it is almost zany, given the responsibilities of the modern President, to argue that we are stuck for some years with a discredited president simply because he did not commit acts that would have counted in 1787 as a "high crime and misdemeanor."

I think that Sunstein may be impugning a lot of our conservative colleagues in the legal academy by seeming to suggest that they "knew" that Clinton was being railroaded but were too smitten by partisan politics to say so. This, of course, is precisely what people like Charles Cooper used to say about William J. Brennan and his supporters, that they willfully subordinated what hthey knew to be the "true" Constitution to their liberal agenda. I think that part of the reality of modern constitutional interpretation--or constitutional politics--is that sincere lawyers can have radically divergent views of what the Constitution allows or prohibits. Indeed, I take it that this is one of the reasons that Professor Tribe terminated his treatises, that the chasm among constitutional perspectives is just too great, at present, to bridge. (Mark Tushnet, incidentally, has a very interesting meditation on Tribe's decision in the just-published issue of Constitutional Commentary (though it has a 2005 date on the cover.)

I concede in advance that there were many good aspects to the Clinton presidency, and I would certainly have voted for him in 2000 had he been eligible for a third term. That being said, I also continue to believe that liberals are paying a very high price for rallying around Clinton the way we/they did and basically limiting impeachment to something so clearly egregious (and provable) as Richard Nixon's conduct in Watergate.

Sunstein also suggests that all of us must accept some reasonably strong version of the law/politics distinction. As Jack Balkin and I have argued, this may make sense if we are talking about "low politics," i.e., tailoring one's position precisely to fite the political interests of one's political preferences in the next election. But it makes very little sense if we are talking about "high politics," i.e., basic visionis of how best to structure the political order, especially with regard to an issue like the conflicts between natinal security, civil liberties, and basic issues of separation of powers.

In any event, I very much appreciate the debate between Marty and Cass.


The Clinton Impeachment was 100% Constiututional. In the debates over the Impeachment Clause, phrases such as "coruption", "maladministration" and "neglect of duty" were raised before "high crimes and misdemeanors" was settled on.

And in the First Congress’ “removal” debate, Madison maintained that the wanton removal from office of meritorious officers would be an act of maladministration which would render the President subject to impeachment.770 Other comments, especially in the ratifying conventions, tend toward a limitation of the term to criminal, perhaps gross criminal, behavior.771 While conclusions may be drawn from the conflicting statement, it must always be recognized that a respectable case may be made for either view.

If merely cashiering someone merited impeachment, surely perjury and obstructing justice, engaging in phone sex with a WH Intern(which any foreign power could have tapped to threaten nat'l security), arrogantly lying about it on national tv and all of Clinton's other dirty deeds merited Impeachment,

As for Brennan, he willfully abused the Constitution and should have been impeached also. To know that the Constitution allows for capital punishment and still rule that it outlaws it, is such a blatant disregard of the law that it defies any concept of "good behavior".

No person shall be held to answer for a CAPITAL, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of LIFE or limb.

Every state in the Union praticed capital punishment. For Brennan to rule that he 8th amednment outlawed it is so blatant a distortion of the Constitution that it merits removal. I mean, one can disagree on the due process clause or the commerce clause. But the capital punishment issue is so clear only one's deisre to impose their own social agenda on the country can explain such devious action as Brennan and Marshall's 8th amendment jurisprudence(not to mention the Court's current liberals+Kennedy).

Where is the evidence that liberals' having rallied around Clinton have limited "impeachment to something so clearly egregious (and provable) as Richard Nixon's conduct in Watergate"? Certainly their having rallied around Clinton is not what is preventing Bush's impeachment for crimes more egregious and more provable than Nixon's. But if it is not preventing Bush's impeachment, then how can one say that it will prevent some future president's? Impeachment will always depend on the politics of the Congress.

Every state in the Union praticed capital punishment. For Brennan to rule that he 8th amednment outlawed it is so blatant a distortion of the Constitution that it merits removal.

Presumably Brennan's position was supported by a majority of the then-sitting justices?

"Indeed, I take it that this is one of the reasons that Professor Tribe terminated his treatises, that the chasm among constitutional perspectives is just too great, at present, to bridge."

Really? I thought there was a more obvious explaination for an author canceling publication of his latest work immediately after having been exposed as having committed plaigarism in previous works. But perhaps it's ungracious of me to think that way...

Davis X,

In 1972, unfortunately, his position was supported by a majority.(They would have merited impeachment as well) But post 1976, Brennan and Marshall continued to rule that the eath penalty was banned by the 8th amendment even though a majority did not support that, and the plain text of the Constitution defnitely did not support it.

For such blatant disregard of the law, I would have supported impeachment.

In 1972, unfortunately, his position was supported by a majority.(They would have merited impeachment as well)

Why is whatever commands a majority in the House grounds for impeachment, but whatever commands a majority of the Supreme Court not thereby law?

Was Marbury wrongly decided or something?

Do you even understand how the Constitution works?

It is law for the time being when SCOTUS decides. However, that doesn't mean they mad ethe correct decision. Or would you say that PLESSY is the law becuase it got an 8-1 majority. What about SCOTT or KOREMATSU? The point is that SCOTUS makes mistakes.

So, when they make a mistake, if its egregious enough, one way for Congress to check their power is through impeachment.

What does the phrase "good behavior" mean to you? Is showing a blatant disregard for the text of the Constitution and openly admitting that you're trying to impose your own social agenda on the nation "good behavior"?

Therefore, the Furman decision was the law, but I would have supported impeachment of Brennan and Marshall for their "bad behavior". I don't see what you can't understand?

As for Marbury, Marshall did not blatantly disregard the text like Brennan and Marshall did. That case, though, has its own problems.

It was more of a political decision than a legal one, Marshall should have recused himself, the SC gad already issued Writs of Mandamus prior and continued to isse said Writs after, etc... It was basically and attempt my Marshall to preserve the SC's independence in the face of the Jeffersonian anti-Judges effort and it was effectively a truce between the court and the president. Marshall used the jurisdiction issue to weasel his way out of a tough situation, and I can't say I blame him.

I can't say I find any of these contributions particularly illuminating. As for Brennan and capital punishment, it is a clear case (against him) if and only if one is an originalist. If one is not an originalist (and, as a matter of descriptive fact, most lawyers and judges are not), then it is certainly open to argue that after-acquired information and analysis could lead one to decide that capital punishment violates constitutional norms as they have evolved. (I know that the last word is extremely loaded, but one can understanding nothing about the actualities of the American constitutional order by pretending that there has been no "evolution," whether or not evidence of "intelligent design," in our system. The point is not that one must agree with Brennan, but only that it is calumny to state that he "knew" he was behaving unconstitutionally. that was untrue of William J. Brennan. It is equally untrue, say, of Clarence Thomas, some of whose opinions are at least as astrounding to many analysts as were Brennan's.

Note, incidentally, that one does not have to agree that Clinton "clearly" merited impeachment in order to disagree with Professor Sunstein's assertion that his impeachment was "clearly" unconstitutional. My point is that there can be, for better and worse, good-faith disagreement about some very basic issues of constitutional meaning.

sandy levinson


I agree that here can be disagreement about provisions. Just what is covered by free speech? what is commerce? incorporation doctrine? what is necessary and proper? etc... that's fine.

there really is no room for debate on capital punishment, unless, as you stated, one openly admits that they are ignoring the text and deciding based on their own admittedly extratextual standards that only they know and that have no basis whatsoever in the text that was ratified by the people.

If you acceot that as a legitimate technique, then the Constitution becomes meaningless and you have judges deciding cases based on what they think the law should be, not what it is. You may be ok with tis with guys like Brennan that agree with you, but I don't think you;d be too happy if Clarence Thomas or Nino Scalia started deciding establishment clause cases or abortion cases based on their evolving standards.

And Brennan and Marshall DID openly admit that they were flouting the text and going with their own views. Marshall said in a speech in Philly that he could care less what the text says because no black people voted for it and because it was written by a bunch of racist, sexist slaveowners.

I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever "fixed" at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite "The Constitution," they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago

The 5th AMendment specifically contemplates capital punishment. It would make no sense to include capital punishment if it was banned by the 8th amednment. Capital punishment was well practiced in colonial and early US history. To think that the framers banned it is an activism of the highest order.

I think Sarah W's point can be summed up as follows.

There can be legitimate disagreement over the interpretation of many if not most of the provisions in the Constitution.

On the other hand, when you use your personal policy preferences to interpret a vague constitutional provision (e.g. C & P) to overturn the relatively plain meaning of another Constitutional provision, that action should be an impeachable offense.

there really is no room for debate on capital punishment, unless, as you stated, one openly admits that they are ignoring the text and deciding based on their own admittedly extratextual standards that only they know and that have no basis whatsoever in the text that was ratified by the people.

Sarah, no one but some originalists think that having any other view of constitutional interpretation is the same thing as, "openly admit[ting] they are ignoring the text." We, for I am one, think many different things about the proper relationship between a particular interpretation and the text, but no one (that I know of) thinks the text is to be ignored, or that it isn't relevant. Also, the reasoning of the last paragraph of your most recent comment is exactly the reasoning Dworkin demolishes in his Comment in A Matter of Interpretation.

NB: I like the egalitarianism of the blogosphere, wherein a rising 3L tries to defend famous law professors.


Please explain to me, in a way that doesn't totally ignore and distort the plain meaning of the text how the 8th amendment could have banned cruel and unusual punishment when the 5th amendment clearly allows for it in multilpe references?

The 5th mentions being deprived of life. If the 8th banned the death penalty, why would "life" be mentioned as something you can be deprived of? The DP clause would just have mentioned liberty and property then because the 8th amendment forclosed the possiblity of life being deprived.

It mentions in the jeopardy clause being subject to loss of life or limb. Again, why would anyone be subject to loss of life if the death penalty was banned by the 8th amendment?

Same with capital offenses. How could there be any capital offenses if the 8th banned them?

Do you think the 8th banned the death penalty from the time of ratification or do you think the 8th banned it starting around say 1972 or so. Do you buy in to the Trop v Dulles evolving standards?

I think even Brennan would acknowledge that the 8th DID NOT ban the death penalty upon ratification and that it was never intended to do so.

His, and other liberals' argument is that while it might not have done so in 1791, it contains some aspirational or evolutionary component that at a certain point in time, determined by our Platonic Guardians at 1 First Street, will be activated and will ban the death penalty.

It's like in War of the Worlds, the ban on the death penalty was always part of the 8th amendment but it was hidden from plain view deep underground until the time approached for it to reveal itself, as determined by the Supreme Court.

I understand this approach to the Constitution that liberals have. It's called the Living Constitution. I know why they have it. It's because the Constitution doesn't embody all of their policy preferences and social agenda items, and they know that they can't implement them as part of the democratic process because they aren't poular enough. So, they turn to the Courts to do their bidding for them.

I cannot accept that approach as it removes any meaning from the Constitution and gives unlimited power to any 5 Justices who happen to be on the Court at a given point in time.

Think what would happen if conservative judges perverted the plain meaning of some other amendments in the fashion liberals have? Would you like the results they'd reach?

I can't see how Brennan's 8th amendment jurisprudence is anything OTHER than ignoring the plain meaning of the the text and inserting his own extratextual views on dignity and morality in its place.

There is absolutely no textual warrant whatsoever to make the claim that the 8th amendment bans the death penalty. None. There is plenty of extratextual warrant and "aspirational" warrant if one says that they look to things other than the text. But once you admit that, you admit that you are above the Constitution and that it means what you want it to mean, not the People have said it means.

If that's your thing, fine. But don't try to pretend that you're not ignoring the text.

Jacob Ziffel,

Exactly. If a Judge interprets "speech" in a certain manner, or that something is implicated by the commerce clause, that's one thing.

If a Judge decides that the Govt can ban the posession of arms, or that the 8th amendment bars capital punishment, or that a state can bar women from voting, or that the President can serve three terms, or that a state can issue a bill of attainder or apply laws ex post facto-all things that the Constitution clearly and unambiguously contradicts, then yes, that is an impeachable offense.

To me, the 8th amendment is perfectly clear that it does not ban capital punishment, It's not really even up for debate. Joseph Story and John Marshall would have scoffed at the mere notion of it. as would Hamilton and Madison and all the rest of the framers.

It's just as clear the 19th amendment guaranteeing women the right to vote or the bill of attainder clause, or the 35 year age minimum for the President.

What if someone said, well, that 35 year thing doesn't really mean 35. You have to realize that it has an evolutoinary quality to it. It speaks to overarching principles and human dignity. The text changes with the times and the standards of decency. Based on life expectancy, 35 back in 1787 is equivalent to 50 today. So, any one under 50 is ineligible to run for President.

That would be just as activist as what Brennan, Marshall, Stevens, Ginsburg, Souter, Breyer, Kennedy and all the other liberals have done.

If you want to ignore the text, fine, that's your right. But at least have the courage of your convictions to admit it when you and don't pretend that you're doing anything but that.

SLevinson's reveals again his classically innovative contemplation of Scotus as a modern institution, a truly refreshing approach. However, I typically find surprise at his conclusions. I offer no riposte on the Clinton matter pro or con. I wonder if it would be useful to read again the Sunstein hypothetical posted by Cass in his first contribution in this discussion at item 2b, where Sunstein appears to describe the Article II "broad power to protect national security" as a likely SG argument in a putative case calling for Scotus to rule on admissability of tainted evidence, evidence gathered based methods developed pursuant to "some of the ludicrous passages in the 2002 memorandum by OLC on coercive interrogation, and...other over-the-top OLC arguments, in the same general period" (ibid.). Sunstein goes on to describe the likelihood that Scotus' vote distribution in such a case might be 1, 2, 3 or more justices would support admissability of tainted evidence: I.e., I understand Sunstein to be addressing the probablility of there being a case soon before Scotus in which coerced evidence was the basis of a detainee appeal of a military tribunal conviction, and welding this to the likelihood, say, Alito, Roberts, and maybe another Justice or two, would vote for ignoring the taintedness, how many Justices would join such a view likely depending upon how narrowly defined.

I am in agreement apparently with both MLederman and CSunstein in the proposition as framed by Sunstein ibid. that circ.2002 a distinctly tangential modality of counsel began to emerge in OLC position papers.

But my followon hypothetical addressing the Levinson view of a thoroughly modern Scotus would be, ?should any Scotus Justice who voted support for torture be disciplined? I can imagine the counterargument about the chilling effect of politicizing Scotus, Sarah; I pose the question to draw some intersects among the thoughts of the three guest posters here.

Personally, if there were such a Scotus vote, at that time I might begin to consider SLevinson's enduring suggestion that Scotus Justices' terms should be reconfigured to a finite length, say, fifteen years, a span of as many as four presidency terms. Which is to say, I would find having a Justice who supports torture to be sufficiently outside of the humanist constitution as to render Scotus itself less respectable.

I hoped Sunstein was discussing one of the other intricate threads in that post, perhaps the reframing of privacy rights postFISA and postHamdan; but I suspect Sunstein's concern is one many of us share here and his hypothesis was about the torture memos, and, perhaps, the increased use of signing statements beginning also in 2002.

There is NOTHING unconstitutional about torturing terrorists as part of a war. I defy anyone to cite me text that does so.

Here's Story on Interpretation:

Where the words are plain and clear, and the sense distinct and perfect arising on them, there is generally no necessity to have recourse to other means of interpretation. It is only, when there is some ambiguity or doubt arising from other sources, that interpretation has its proper office

Nothing but the text itself was adopted by the people. And it would certainly be a most extravagant doctrine to give to any commentary then made, and, a fortiori, to any commentary since made under a very different posture of feeling and opinion, an authority, which should operate an absolute limit upon the text, or should supersede its natural and just interpretation.

It is obvious, that there can be no security to the people in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text; but the words are to be bent and broken by the "probable meaning" of persons, whom they never knew, and whose opinions, and means of information, may be no better than their own? The people adopted the constitution according to the words of the text in their reasonable interpretation, and not according to the private interpretation of any particular men(Story was referring to the Framers as "particular men" here. Imagine his feelings on someone coming along 200 years later and offering their provate interpretation)

In discussing textualism, Dworkin draws a distinction (as does Scalia, as he acknowledges in his reply (Matter of Interpretation, 144))between "semantic intent," meaning what the speaker intended to say or write, and the expectation a speaker has for the consequences of what he or she said. The textualist follows semantic intent, or they could deal with scrivener's errors and other problems that Scalia can in fact handle. But arguing from the fact that the Constitution twice mentions the use of the death penalty to the conclusion that the 8th amendment can't forbid it is an argument from intended consequences, not what the framers intended to say. Such an argument is contrary to textualism.

I also would like to note that I find things like, "It's because the Constitution doesn't embody all of their policy preferences and social agenda items, and they know that they can't implement them as part of the democratic process because they aren't poular enough. So, they turn to the Courts to do their bidding for them." to be the opposite of constructive conversation.

it doesn't matter what the framers expected. It matters what thext said and what was ratified.

The text of the 5th amendment, as ratified, clearly gives the govt power to use capital punishment/death penalty. Do you dispute that? I think it's impossible to do so an it can't be done in an intellectually honest matter.

It's perfectly textual. You make no sense.

The 8th bars the govt from inflicting cruel and unusual punishments. Regardless of the whether the death penalty is cruel, it is clearly not unusual and it was not unusual when the 8th was ratified. In fact, the death penalty had enjoyed wide spread use in all of the states that ratified the 8th.

To say that a Constitution would be ratified that simultaneously grants the power of capital punishment and bars the power of capital ounishment is a fallacy. It could not have happened.

There is not even one scintilla of evidence that anyone at the time of ratification or frmaing thought the 8th bans the death penalty. On the contrary, the evidence we do have is from ratifiers who voiced concern tha the prohibition might be interpreted too broadly and utilized to do just what liberals want to use it for.

Even liberals admit that it is a recent development that the 8th bans the death penalty.

Textually and based on the clear rules of interpretation as laid down by everyone from Hamilton to Madison to Marshall to Story, it's not even up for dispute that the 8th amendment bans the death penalty. If you had raised that argument in front of the Marshall Court or the Framers and the early Congress, you would have been summarily dismissed.

There really is no debate unless one changes the terms of the debate as the liberals have. Then there is a debate.

My only point is that liberals should acknowledge that they've changed the terms of the debate and not hide from the fact. Be proud of your liberalism. Show courage. Admit you've gone beyond the text. Admit that you use extratextual concepts. Admit that the plain meaning is not of dispositive value to you. Why can't liberals just admit it?

Some have, and I commend them for it, but most don't, and it's a shame.

What does a textualist/originalist have to say about the Air Force, which is not mentioned in the Constitution whereas the Army and Navy are mentioned with some specificity? Off we go, into the wild blue yonder of a living, flying Constitution.

I would say that textually the Air Force is unconstitutional. There should be an amendment added to give Congress power to provide for an Air Force. It would be unanimously approved and ratified within days. That's how the process SHOULD work. As described in Article V.

However, I realize that won't happen and given that the AF has been around for 50 years, is widely accepted and has not been challenged, I would leave it as it is under the de minimus non curat lex doctrine.

By the way,

I won't to leave the impressin I only pick on liberals. The conservative Justice's 11th amendment decisions(Seminole Tribe, Alden v Maine etc...) are just as unwarranted and activist as the liberal Justice's 8th amendment ones. Both clearly contradict the plain meaning of the text.

However, on the whole, the liberals are more frequent offenders and to a much greater qualitative difference than the conservatives. But I'll criticize both when the ydeserve it.

it doesn't matter what the framers expected. It matters what thext said and what was ratified.

I agree.

The text of the 5th amendment, as ratified, clearly gives the govt power to use capital punishment/death penalty.

I agree that it assumes that the death penalty will exist. I disagree that it gives any such power, nor could you possibly think the text says so, unless you think everything the Constitution assumes exists is Constitutionally required to exist.

The 8th bars the govt from inflicting cruel and unusual punishments. Regardless of the whether the death penalty is cruel, it is clearly not unusual and it was not unusual when the 8th was ratified. In fact, the death penalty had enjoyed wide spread use in all of the states that ratified the 8th.

Assumes on no basis at all that when the Framers wrote "cruel and unusual" they meant "those things, and only those things which we currently consider cruel and unusual or would so consider if they existed." Why can't you accept that people disagree that the text meant that? If the Framers had wanted to put in place some free-floating amorphous principle, would they have written things so differently from the way they actually did?

I'm really just repeating an essay back to you, can I recommend once again that you read A Matter of Interpretation, especially Dworkin's Comment therein?

The bottom line is that you have a fundamentally different theory of what the Constitution means and how it works than I do. That's fine. Your entitled to your opinion

Of course because the Govt has the power to do something doesn't mean they are required to use it. Duh. The govt has the power to indict, it doesn't mean they are required in every case. They have the power to declare war. It doesn't mean they are required to do so.

The Govt only has powers that are granted to it by the Constitution. The Constitution clearly grants and recognizes the power of the Govt to issue Capital sentences, if they choose to do so.

I never said, the death penalty is mandatory. That's absurd. It isn't in states either. If MA wants to abolish the death penalty, by all means they have every right to do so. But if TX wants to maintain the death penalty, the SCOTUS has no authority or right whatsoever to bar them from doing so.

When did I ever say the death penalty is required? Our argument is this: You claim the Constitution forbids the govt or the states to use the death penalty, if they so choose. I claim the opposite and that there is no textual basis for your claim but that there is an extratextual basis involving "aspirational" arguments, "evolving standards of decency" and other things that give carte blanche to judges to rule as they desire.

You've yet to provide any textual basis to support your claim. Cite me the Constitutional text that forbids the govt or the states from using the death penalty. You can't.

They didn't put some amorphous principle in. The 8th amendment comes directly from the common law and the Revolution of 1688. Blackstone explicitly defined it. All the framers knew what it meant. It's basic ConLaw that when a term of art is used or reference is made to a term from the common law, that the term is to be construed according to its commonly known meaning, not some greater pronciple it embodies or some evolving standard.

A better question for you would be, if the framers wanted to ban the death penalty, why didn't they simply "Congress shall pass no law providing for a pnishment of death" or "The right to life shall not be violated, and no capital punishments shall be issued" or an unabiguous wording? How come they didn't do that? They did it in all the other amendments.

If you take your approach that when the framers said A, they really meant B, or what A might mean in 200 years, then the entire Constitution is worthless. Words and phrases cease to have meaning and the Constitution means whatever Bill Brennan says it means, not what the text was ratified to mean.

Let's use your approach and imagine a conservative activist Court. Imagine Justice Scalia writing for the Court:

Even though it is apparent that at the time of the ratification of the 5th and 14th amendments, the term "person" was not understood to include zygotes, embryos, or fetuses, "evolving standards of decency" and our continuing quest to fulfill human dignity and allow each person to define themselves according to sweet mysteries of life, have led us to conclude that the time has come for a reassessment.

The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death.

Therefore, consistent with the 5th and 14th amendments guaranteeing all persons a right to life, and our fulfilling of the promise made to all Americans, we hold that Roe v Wade and PP v Casey were grievously wrong decisions and we correct those mistakes by hereby invalidating all state laws permitting abortions and will now now call on those states to enforce and respect the dictate of the 14th amendment. Further we hold that as per the 5th amendment, the federal govt is also hereby compelled to use its powers to end the practice of abortion. In sum, the 5th and 14th amendments now compel a nationwide ban on abortion.

We shall not again canvass the reasons that led to that conclusion. We emphasize only that foremost among the "moral concepts" recognized in our cases and inherent in the Clause is the primary moral principle that the State must treat its persons in a manner consistent with their intrinsic worth as human beings -- and take all measures to prevent acts degrading to human dignity. A judicial determination whether the practice of abortion comports with human dignity is therefore not only permitted, but compelled, by the Clause.

It is So Ordered.

Would liberals like that opinion? Would they hail it as a masterpiece of human dignity and freedom? It was cribbed almost word for word from Brennan's death penalty opinions and Dworkin's idea of aspirational meaning.

As a textualist, that opinion would be as offensive to me as the Roe opinion was, perhaps worse. If Justice Scalia were to write such an opinion, he, along with any Justice who joined him should be impeached immediately. In fact, Justice Scalia has explicitly said as much and has stated that becuase he is a textualist, he does not have the authory to write an opinion like that, even though he would most assuredly want to if it was up to him.

Your approach provides no brakes, nothing to constrain a Judge. Under yours and Dworkin's and Brennan's approach, the only thing holding judges back is their own shame.

Under my approach, it's the text of the Constiutution that constrains them. You don't like what the text say? Then amend it as per Article V. It's been done.

I just wish you'd acknowledge it openly.

Per Story:

§ 1896. The next amendment is: "Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted." This is an exact transcript of a clause in the bill of rights, framed at the revolution of 1688.2 The provision would seem to be wholly unnecessary in a free government, since it is scarcely possible, that any department of such a government should authorize, or justify such atrocious conduct.3 It was, however, adopted, as an admonition to all departments of the national government, to warn them against such violent proceedings, as had taken place in England in the arbitrary reigns of some of the Stuarts.

and he goes on to discuss the punishment for treason and explicitly state the power of Congress to authorize death by hanging.

The fatc the Constiutution explicitly reocgnizes the legality of the death penalty is also seen in the treason clause with regards to blood of forfeiture and attainder of blood.

If you knew your history, tthis was in reference to England where someone would be convicted of treason, attained and then after he ws killed, all his assets would be frozen and his heirs displaced of any property. It explicitly involved a death sentence being carried out.

Now, I ask you, and be honest, if the 8th amendment abolished the death penalty, what's the point of that clause? If Congress was banned from using it, why worry about stuff like that. The fact that they put that in shows that COngress had the power to issue death sentences and that was needed to protect abuses against relatives after the traitor was killed.

If you read your histiry, numerous men were hung as triators throughout early US History, no one ever suggested the 8th amndment barred it.

It's a recent invention. Really since the 60s or so.

Again, if you want to feel that way, it's fine, but it's not textually warranted and you can't really claim that it is. And if you're ok with deciding cases that way, then I hope for your sake that Stevens and Ginsburg stay healthy and that Hillary wins in two years. Because if they don't, and if the conservatives on the court start deciding cases according to your approach, I have a feeling you'll be begging for them to go back to textual model and plain meaning model.

Beware blowback.

i'm going to assume that the framers never anticipated the exact advances that have occurred since 1791. i cannot imagine that jefferson, madison, et. al. had airline travel, the internet, etc., in mind when they debated and drafted the constitution. for that reason, one must view the constitution as a living document, rather than a staid piece of parchment that must be taken at its strict word.

but i am willing to concede that textualists frequently have a very good point. as ms. weddington says, "you don't like what the text say. then amend it as per article V".

so changing the subject just a very little bit, let's take a look at the issue of the right of gay marriage that textualists have said is made up of whole cloth by liberals who are out to ignore the specific wording within the constitution. i will concede that there is nothing in the constitution that says the exact words that gay people have the right to marry, but then again, when read strictly, as textualists prefer, there is quite a reasonable argument to be made that there are portions of the constitution that says they do; therefore, the issue is not whether gays are trying to change the constitution to allow them to marry, but that others are trying to change it to say that they can't.

let's start with the preamble, which states, "we the people...". there is no strict definition of the term "people". i would submit that you do not need such a definition, as we all know what people are, and we all know know that in this context, "we the people..." refers to we, the citizens of the united states. while there are those who do not approve of alternative lifestyles other than heterosexuality, i dare say that nobody will reasonably make the legal argument that gays are not people; therefore, "we the people..." includes them.

the next step in this argument is to concede that people have the right to marry anyone they should happen to fall in love with. i don't believe that anyone would deny or make the legal argument that people do not have that right -- at least when it comes to heterosexuals.

which brings us to the ninth amendment, which states, "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people". assuming that "we the people..." refers to all people, including gays, a literal, textual reading of the ninth amendment, can reasonably be said to include the rights of gays to marry, inasmuch as the right of all people to life, liberty and pursuit of happiness is specifically stated in the constitution, and "we the people..." is not further defined to state that the definition of people does not include gays.

the point for you textualists out there is that the eighteenth century could not possibly envision the issues of the twenty-first. even if you want the constitution read literally, the words themselves are still subject to individual interpretation, and under this argument and approach, if you want to take every word literally, then the right to gay marriage is right there in the constitution itself. as far as i am concerned, it could not be more clear.

Finally, imagine some other conservative rulings using the living constitution.

US v Goodridge 2009


Seeing as how Congressional findings have shown that homosexual couples tend to have compartively larger disposable incomes, spend money in multiple states through travel, have businesses or jobs that involve them conducting transactions across state lines, affect the flow of goods and services across state lines and impact interstate commerce in many other ways, we hold that consistent with Wickard v Filburn, all of these effects when taken in the aggregate do have a substantial effect upon interstate commerce, and consisten with the evolving nature of the commerce clause and the continuing quest for dignity and morality, and therefore Congress was well within its authority to ban Homosexual marriage and relationships and criminalize them nationwide. US v Lopez overruled.


This living constitution is great. The commerce clause means what I want it to mean.


Tawrence v Lexas 2011


Based on the evolving standards of decency and the fact the Constitution does not mean today what it meant in 1868, and we must adapt it to the times, we hold that among the priveleges of a US citizen guaranteed by the 14th amendment is the right of citizens to discriminate against homosexuals in all facets of life. Romer v Evans and Lawrence v Texas overruled.

Gomes v Utah 2010

While the "assistance of counsel" may have meant one thing in 1791, today it means something different. Consistent with evolution and the changing times, we hold that assistance of counsel does not mandate a lawyer, but rather provides for a minimum of advice to the accused. The State has fulfilled its obligation once it has granted the accused one meeting with anyone, attorney or not, that explains the nature of the charge and lays out what options he has going forward. Gideon v Wainwright overruled.


I could go all day. Do you really like the living constitution now? Or it's only ok when it's your guys that have 5 votes? What happens if Rush Limbaugh's guys get 5 votes? Will you like the living constitution then?


while your thoughts are admirable and while from a policy view i may well agree with you, what you state just isn't there.

1st, the preamble has been unanimously held to be non-justiciable. It has no legal effect, it's more of an introduction to the text. Like a Whereas... part of a resolution. If you make the Preamble law then everyone has an unlimited right to liberty. I don't think so. And keep in mind the preamble also explicitly mentions "our posterity". How do you think the 40,000,000 members of our posterity who have aborted under Roe v Wade feel about that part? Would you accept Justice Scalia overruling Roe and abolishing abortion based on the Preamble? Didn't think so.

2nd, no one has a "right to marry who they love". If i'm a 40 yr old guy and I love a 12 yr old girl, I can't marry her. If I happen to love 5 women equally, I can't marry all of them. If I happen to love my sister I can't marry her. There's more examples I could give.

The right to marry is not in the Constitution. If Sen. Obama proposes legislation that says "All citizens shall have the right to marry whoever they love" and it gets 2/3 approval in Congress and 3/4 in the States, then it's in there. Until then, sorry.

3rd, the 9th amendment is an extremely tricky one. Read your way, we have unlimited rights. Clearly it did not mean that. There's much debate over just what it does mean, but the SC has pretty much ignored it for 200 years and it appears to be near impossible to enforce in any practical manner.

Again, the Constitution does not ban gay marriage. It leaves it to the states. VT has already passed a civil unions bill. Good for them. Any state is free to approve of gay marriage. There's nothing in the text to stop them from doing so. But there's also nothing in the text to require them to do so. It's called a democratic republic and a federal system. It generally works.

There is NOTHING unconstitutional about torturing terrorists as part of a war. I defy anyone to cite me text that does so.

Hi, Sarah. The combination of Article VI,
Common Article 3 of the Geneva Conventions, the War Crimes Act of 1996, and the Hamdan decision would seem to make the torture of detainees in the Global War on Terror a federal offense. Murder most foul is not unconstitutional. The best we can hope for is that it would be against the law.

Applying textualism/originalism to the true meaning of "commerce" (see Justice Thomas on the true meaning of "commerce"), how might the US economy have developed?

Applying textualism/originalism to the Second Amendment's right to keep and bear arms, where does the word "reasonable" appear to regulate a suitcase dirty bomb? Is it okay for me to carry a sword that is visible wherever I wish to go?

ms. weddington, i think you missed my point, at least to a small extent, when you said "read your way..." in referring to the ninth amendment. my post was not necessarily advocating a certain reading of the ninth amendment and the constitution as a whole, but merely a statement that the "plain" meaning of the text can be susceptible to several reasonable interpretations, even taking "plain" or "simple" or "clear" meaning into account. for instance, the view that the failure to specifically define marriage within the constitution could very well and reasonably be interpreted as meaning that the definition and rights of marriage are one of those rights reserved for the states to define and legislate, just as i think it is reasonable to argue that the right of gay marriage is already in the constitution, as set forth in my prior post.

yes, the preamble is just that, but then again, most comprehensive legislation has a first section providing definitions of terms contained within the body of the substantive law. couldn't the preamble be read that way, especially since "we the people..." is not defined elsewhere within the text.

by the way, could it be that the reason the ninth amendment has been ignored by the justices is that it pretty much has not been invoked by the litigants before them? who's to say that the ninth amendment does not mean exactly what it says, and that there are pretty much unlimited rights reserved to "we the people...", provided the rights asserted are reasonable (i.e., the expectation of privacy within one's own home) and/or otherwise supported by law and custom. for instance, i don't think anyone is asserting the right of an adult to marry a small child, a creature of another species, etc., and the arguments being made by some that this is what liberals are trying to establish are simply either misguided, or downright ignorant.

Sarah, I said: I agree that [the Constitution] assumes that the death penalty will exist. I disagree that it gives any such power, nor could you possibly think the text says so, unless you think everything the Constitution assumes exists is Constitutionally required to exist.

You responded that (paraphrasing) of course you don't think the death penalty is constitutionally required, just that the Constitution doesn't, via the 8th Amendment, prohibit any state from executing any one in conformity with due process of law.

That was not responsive to my point, which was that the following claim, which you made, is false on its face: "The text of the 5th amendment, as ratified, clearly gives the govt power to use capital punishment/death penalty....I think it's impossible to [dispute that and] it can't be done in an intellectually honest matter."

Under my approach, it's the text of the Constiutution that constrains them.

Justice Scalia is not unique in starting with the text. Every Justice starts from the text. It's only when the text supplies no obvious answer that the fun begins.

If Justice Scalia were to write such an opinion, he, along with any Justice who joined him should be impeached immediately.

If Justice Scalia were to write such an opinion, it wouldn't bother me any more than his current opinions do. His current opinions reflect his political preferences, nothing more. Though he pretends otherwise, he has NOT identified a "neutral principle" which constrains his interpretations.* He is just as guilty -- probably more so -- as others when it comes to imposing his own value preferences on the Constitution. He's just a little less honest than some in the way he does that.

*Originalism is particularly poor at its supposed job of constraining interpretation. The fact is, we know very little about what the Framers intended in most cases. This leaves a Justice free to impose his/her own values on the attitudes of 1790. Or, worse yet, to pick and choose quotes from his/her preferred writer of that era.

You don't like what the text say? Then amend it as per Article V.

This is no arguement at all because it cuts both ways: You don't like how the Court interprets the Constitution? Then amend it as per Article V.


with all due respect, you're not making sense.

Article I gives the Govt power to punish treason. EVeryone knew that the punishment for treason was death and it was carried out numerous times with no objection as to it legality. It further talk about corruption of blood and forfeiture only lasting while the guilty is alive. It would only say that because it knew that guilty would be executedand the govt was forbidden from extending the punishment to his heirs after they killed him.

Amendment V in 3 separate provisions mentions capital punishment. for it to mention that the Govt had to have the power to implement it otherwise the text is an abusrdity and makes no sense.

Again, you can't seriously contend that as farmed and ratified in 1787-1791, the Constituion forbids the death penalty. You CAN contend that times change and based on evolving standards it does. But as a matter of truth, I doubt even the staunchest liberal judge would claim that the Constitution outlawed capital punishment from the start and that the Govt never had any power to implement it.

Mark Field,

Of course it doesn't bother you becuase you don't believe in a Constitution apparently. You believe in Judges telling you what the Constitution means, rather than the Constitution telling Judges what it means.

As for Scalia, you're way off base. Do you think he supports flag burning? Do you think he supports all of the protections that he's given to criminals in his 6th amendment cases, that he'd approve of them if it were up to him? As a devout Catholic I'm sure he isn't too fond of the death penalty, but he votes to uphold it. Do you think he wanted to set Hamdi free? He goes wit hthe text a bunch of times. Sometimes he doesn't I'll grant you. But he does a better job of it than most.

We know plenty about what the framers intended. There's detailed notes about the Convention, the ratifying conventions, the Federalist and Anti Federalist papers, the early SC decisions, the notes of the early Congresses, the works of Madison, Hamilton, Jefferson, etc.... We know plenty about what they intended.

We don't know everything. For example, what did they think of partial birth abortion? That's why they put in Article V. If we don't know about it or if something new pops up, you can put it in.

Of course it doesn't bother you

This mis-states what I said. What I said was that your hypothetical opinion by Scalia wouldn't bother me any more than his current opinions do.

you don't believe in a Constitution apparently

The funny thing is, in my view it's the originalists who don't believe in the Constitution. At least not in the sense that John Marshall meant when he said, "We must never forget that it is a constitution we are expounding." My Constitution was intended to endure for ages to come and to be adapted to the various crises in human affairs.

You believe in Judges telling you what the Constitution means, rather than the Constitution telling Judges what it means.

I believe, as I said, that every Justice begins with the text. Contrary to popular myth, though, documents do NOT "speak for themselves". They have to be interpreted. Originalists interpret no less than anyone else. They just pretend that they don't. In fact, a believer in an evolving Constitution is no less constrained by the text than an originalist -- the constraint just comes from the history and meaning of words today rather than 1790.

There's detailed notes about the Convention, the ratifying conventions, the Federalist and Anti Federalist papers

You mean we should look at the legislative history? Sounds like a good idea....

The volume of paperwork isn't relevant here. If you really believed in originalism, you'd take seriously the principle: that the relevant factor is the intent of those who enacted the Constitution.

We have writings by a relative handful of the million or so adult white males who lived at that time. It's mere pretense to suggest that we know what they intended, if anything at all, about the specific issues which arise 200 years later. As I said above, originalism, whatever it may be in principle, is in practice merely the pretext by which some Justices impose their values on the rest of us.

As for Scalia, you're way off base.

At this point, the evidence is beyond a reasonable doubt. It's not even worth debating.

Sarah, I think the broadest claim I have made in this thread is that you were wrong to say:

there really is no room for debate on capital punishment, unless, as you stated, one openly admits that they are ignoring the text and deciding based on their own admittedly extratextual standards that only they know and that have no basis whatsoever in the text that was ratified by the people.

I have at no point asserted or implied what my view on whether or not the 8th Amendment forbids the execution of prisoners is.

You say that Article I gives the Govt power to punish treason. Since the only mention of treason in Article I is as an exception to the speech and debate clause, you're once again mistaking a presupposition for a grant of power. But that's a nitpicky point, because Article III, Section 3 does give Congress the power to punish treason, with the caveats about acceptable punishment that you mention.

Now, that section lists two punishments, and no others, which can't be applied to traitors. Surely this means Congress can decree that the punishment for treason is being racked and concurrently being forced to choose which of your friends, lined up in front of youk, will be shot. Wait, some amendment limits the ability of Congress to do that. But it's impossible, you say, that that same amendment limited Congress's ability to impose death as a punishment for treason. This is allegedly true because executions were carried out, and their legality not challenged. But that is anything but a textualist argument. Rather, it's an argument that the intentions some group has for what the consequences of their words should be is binding on everyone else in interpreting those words.

Sarahweddington writes:

As a devout Catholic I'm sure he isn't too fond of the death penalty, but he votes to uphold it.

If anything is clear, it is that Scalia, as a distinctly pre-Vatican II Catholic, is a devotee of the death penalty and feels no tension at all when he upholds it. He may indeed feel some tension when protecting flag burning or the confrontation rights of child molesters, but there is no reason at all to believe that this is true with regard to the death penalty. See "God's Justice and Ours," First Things, May 2002, at 17-23.

I missed this at first:

The right to marry is not in the Constitution.

I'm sure Mr. Justice McReynolds will be devastated to learn that he deserves to be retroactively impeached for saying that it was. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

thank you mark field.

i am never afraid to admit that i am wrong. just for kicks, i looked up and read meyer v. nebraska. i guess i was wrong when i said there is nothing in the constitution which permits gay marriage. under the "we the people..." logic espoused in my above posts, i guess there is...

thank you, mark field.

i am not afraid to admit when i am wrong, and to have my mistakes pointed out to me. just for kicks, i read meyer v. nebraska. in one of my previous posts, i noted that i was aware that the constitution does not specifically permit the institution of gay marriage. after having read meyer v. nebraska, and using the "we the people..." logic espoused in my earlier posts, i can now see that i was wrong. thank you, mark

Mark Field,

All those documents are relevant because not only did the framers write the Constitution, they also ENACTED it to use your words. All of the framers who signed the document went on to ratify it in their state conventions. They weren't just some guys spouting off in a tavern.

So, unlike you, when Madison or Hamilton has something to say about what the text means, I pay attention. I pay a heck of a lot more attention than when Bill Brennan or David Souter says what it means. Those two enacted nothing. nada. zilch.

Look, I perfectly understand the living constitution. I just disagree with the concept. I guess we'll have to leave it that as you won't convince me and I won't convince you.

washerdreyer, you are correct. I meant Article 3 when I mentioned treason. But the point remains.

As to the rest of your point, again you make little sense. The 8th amendment had an understood meaning. It was taken directly from the 1688 Bill of Rights. Blackstone and various other Englishmen wrote extensively on it. Most states had a simliar clause in their own constitutions. The framers all read Blackstone, they all knew the common law. They all knew what the phrase meant.

Putting someone on the rack, drawing and quartering, disemboweling, they were all prime examples of cruel and unusal punishments that were forbidden. Everyone knew that and no one would dispute it.

Death by hanging, by contrast, was not a cruel and unusual punishment. Not one of the framers or ratifiers would have understood it to be so. Not one.

again, you ignore the fact that the phrase has a meaning and it was well understood by those who enacted it.

It's good to see that you agree that the govt was given the power to impose capital punishment in the Constitution.

You may not like the meaning of the 8th amendment, you may disagree with the policies it allows, but it's there and it hasn't been repealed.

You're free t oadvocate a new amendment that does ban capital punishment. If it should pass, then the death penalty would be banned. Until then, the plain text is clear.

If you can't understand that or don't see that, or don't want to see that, I'm afraid I can't help you.

Mark Field,

Who made a known bigot and anti semite like Jim McReynolds the alpha and the omega of the Constitution? If Jimbo says it's there, it's there? Uh huh.

McReynolds also said that the right to contract was in the Constitution and would have upheld the Lochner line of cases. Just because some SC Justice says something's in the Constitution doesn't make it so.

There is no right to marry in the Constitution. There is in Judge made law. Just like the right to abortion, right sodomy, right to a bunch of other things.

Again, the fundamental difference bewteen us is that your constitution has no fixed meaning, it changes with the times, and it's up to some robed tyrant to tell us what it means. If that's how you want it, fine.

Your Marshall quote is inapt. He was referring to allowing the powers granted to the govt to be adapted to fit the times, it had nothing to do with judicially declaring new rights, not even close. He was basically saying that the text should not be read in so strict a manner that it cripples tha ability of the govt to act. I agree. That quote has nothing to with new rights.

FWIW, Madison and many of the Republicans disagreed with Marshall's opinion vehemently and thought he was way off base.

Oh how I pray for the day when Justices Scalia and Thomas can command majorities and correct the plethora of errors of the past.

"oh how i pray for the day when justices scalia and thomas can command majorities and correct the plethora of errors of the past".

translated for the rest of us --

"oh how i pray for the day when activist judges with views that i approve of will legislate views that i approve of from the bench"

Actually, phg, Scalia and Thomas won't legislate views I agree with from the bench.

Scalia would give 1st amendment protection to flag burning. I think that's an absurd reading of the first amendment.

Thomas would give CA the right to allow ppeople ot grow pot in their backyard. I disagree with that.

Both would uphold the right of the state of CA to permit abortion on demand. I disagree with that.

There's lots of opinions or views of theirs I'd disagree with, but I know that they'd do a much better job of being faithful to the text than the liberals have.

You don't mind it now because the judges on the court are legislating according to your views. But when the time comes, you'll be complaining about judges ignoring the text and seeing what happens when we give judges the power to make law rather than state law.

after having read meyer v. nebraska, and using the "we the people..." logic espoused in my earlier posts, i can now see that i was wrong. thank you, mark

Glad to be of help. But your best argument for gay marriage is, of course, Loving v. Virginia, 388 U.S. 1. You might also find interesting the CA equivalent, Perez v. Sharp, 32 Cal. 2d 711, 198 P. 2d 17 (1948), because the concurrence of Justice Edmonds rests on 1A grounds.

All those documents are relevant because not only did the framers write the Constitution, they also ENACTED it to use your words.

My point was that the Framers may have been some of the enacters, but they were not the only ones. We can't judge the overall intent of the enactment unless we can understand the intent of more than, perhaps, 1/10,000 of them.

Your statement is technically wrong in any event, because you included the writings of the anti-Federalists in your list. They don't get to be included as "enacters".

Finally, perhaps you didn't know this, but my comment about legislative history was pointedly directed at Justice Scalia, who refuses to rely on legislative history for the interpretation of statutes but is more than willing to pick and choose his sources among the equivalent records surrounding the adoption of the Constitution.

So, unlike you, when Madison or Hamilton has something to say about what the text means, I pay attention.

I pay a great deal of attention to what they have to say. I just don't consider that their statements determine the outcome.

Who made a known bigot and anti semite like Jim McReynolds the alpha and the omega of the Constitution? If Jimbo says it's there, it's there? Uh huh.

I used an opinion written by Justice McReynolds intentionally in order to avoid hearing how poor "liberals" are at being "faithful to the text". He was, in any event, speaking for the Court -- an extraordinarily conservative one, by any measure -- so your aspersions on him personally are pretty much wasted.

More fundamentally, however, you are missing the key point. Words like "liberty" do not have a "plain meaning". They are broad concepts which include within them multitudes, if I may bastardize Walt Whitman. The Court gives meaning to such words by deciding what specific rights are included within the general protection.

How it does so leads us to this:

the fundamental difference bewteen us is that your constitution has no fixed meaning

As I pointed out above, meaning can be fixed in 1790 or in 2005. Whichever year you choose, there is no difference in the amount of "fixed". In fact, the meaning of words is MORE fixed today if for no other reason than we actually have the ability to discover it; in contrast, our ability to discover relevant meanings in 1790 is severely restricted. This results in originalists having MORE room to impose value preferences than someone who fixes meaning in the present.

Your Marshall quote is inapt. He was referring to allowing the powers granted to the govt to be adapted to fit the times, it had nothing to do with judicially declaring new rights, not even close.

Rights and powers are flip sides of the same coin. Most originalists interpret governmental powers as of 1790. Where's Brett when I really need him?

Somebody utter my name?

It's all very well and good to say that we can fix the meaning in 1790, or today, and claim there's no reason to prefer one over the other.

But every day is a new "today", (While there's only one 1790) so if we fix it "today", we haven't really fixed it at all. It's going to get "fixed" anew with every new day.

If it's to be fixed in any real sense, it has to be fixed at some date in the past, and the only dates for which there is any policy neutral reason to pick, are dates such as when a particular clause was drafted, or ratified, or some such. Not, "The date when the courts happened to agree with me." Which is what "today" boils down to as a practical matter.

Then you have a genuinely fixed meaning, and having Article V actually makes some kind of sense, and we can have meaningful debates about whether we should change the Constitution in some respect or not, because that decision won't have been usurped by a few guys in black robes.

Mark Field,

As I said before, it's obvious we're talking past each other. We have fundamental differences when it comes to what a constitution means to us, and that's fine. It's no skin off my back.

I'll only note that James Madison and Joseph Story and John Marshall all noted that the text is to be interpreted according to its plain meaning in line with the intention of the parties. That's was basic common law interpretation and was referred to by all 3 as the "the accepted rules of construction". I'll go with them, if you don't mind.

Again, words DO have meaning. LIberty does have a meaning. It's in Blackstone, it's in Story. It's all there. You may not agree with how they defined it and what the accepted definition was, but it's there/ If you want to defnie it differently, use Article V and change it.

In any event, it doesn't really matter what liberty means because the Constitution doesn't give anyone a right to liberty. All it says that you can't be deprived of it without Due Process. So your comment on liberty is menaingless.

And Due Process has a meaning as well. Hamilton said it has a "precise techincal import" All the framers knew what it meant. And it had nothing to do with the substantive due process scam that the Court has foisted on us.

The Anti Federalists count because they let us know what the enacters meant. But they are never dispositive over the ratifiers.

If the statements of the enacters don't dtermine the meaning for you, what does? How do you determine the meaning if you have no fixed standard? You use the living constitution approach of Bill Brennan and the court's liberals obviously. Like I said, that's fine, but count me out of it.

The problem is that Liberals think the Constitution embodies their ideology. They think "If I think it's a good policy, it must be in the Constitution". They've lost the ability to participate in the democratic process because they've become so dependednt on the courts to implement their policies.

Look at gay marriage and how the NYT acted shocked that gays and their supporters would have to convince the people to pass gay marriage. It was almost as if they couldn't belive that in a domcracy the concept of getting laws passed and not running to the courts actually still existed.

The Constiitution is not perfect. It allows things you might not agree with. Until 1920, it allowed women to be denied the right to vote. Until 1865 it allowed slavery. It still allows the death penalty.

The way to get the Constitution to include the things you want it to is not through judges, it's through article V.

Madison said as much in his veto of the roads bill:

I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.

There is a mode for improvements. And it isn't judges forcing their policies on the public. It's the people using Article V to improve it themselves.

Somebody utter my name?

Yeah, but apparently in vain. You're supposed to be taking Sarah to the woodshed for suggesting that the powers granted in the Constitution can be interpreted broadly, but the rights reserved cannot. I'm just a diversion.

But every day is a new "today", (While there's only one 1790) so if we fix it "today", we haven't really fixed it at all. It's going to get "fixed" anew with every new day.

Fair enough in one sense, of course. But if any particular justice were to pick a modern date and stick with it, that would constrain him just as much, if not more, than 1790 "constrains" an originalist. As the Court slowly changed personnel, its interpretations would move forward with the times, but each justice would still be "constrained".

Nor are these the only ways to "constrain" judges. Common law reasoning does so, almost certainly more than originalism, as do other interpretive theories. Demanding a specific one is less important than seeing that a justice recognizes some constraint.

the only dates for which there is any policy neutral reason to pick, are dates such as when a particular clause was drafted, or ratified, or some such.

And this is where the disagreement comes in. NO date is "policy neutral", not 1790, not today. Originalists are making policy choices just as much as any other justices.

The date of passage is not used for statutory construction because it's "policy neutral", but because using that date reinforces an important policy: the power of the legislature as representative of the people.

The same policy doesn't work when applied to a Constitution. The fundamental policy of the Constitution was to establish a republic, that is, a system of goverment in which sovereignty rests in the people and decisions are made by majority rule. Freezing the Constitution in time subverts that most basic principle -- you and I can hardly consider ourselves part of a sovereign people or participating in a democracy if all the important decisions were made hundreds of years before we were born.

Constitutions are, as I paraphrased John Marshall above, intended to endure for the ages and to adapt to the crises of human affairs. They are written in general terms and lack the basic characteristics of statutes (e.g., excessive detail). The surest way to destroy a Constitution would be to fix it in time. That's nobody's policy.

Mark Field,

James Madison, Joeseph Story, Alexander Hamilton, and John Marshall ALL disagree with you.

Here's Madison:
“the sense in which the Constitution was accepted and ratified by the
Nation . . . be not the guide in expounding it, there can be no security for a consistent
and stable [government], more than for a faithful exercise of its powers.”
quoted in BERGER, supra note 7, at 4. Similarly, in a letter of 1821, Madison
wrote that the “true meaning” of a constitutional provision is “the sense in
which it was understood by the nation at the time of its ratification.” 3
[hereinafter MADISON LETTERS].

So there is a fixed time, the time of ratification(ie 1789, 1791 and 1868)

More Madison:

Madison insisted that his recourse
to original understanding was legitimate: “In controverted
cases, the meaning of the parties to the instrument, if to be collected
by reasonable evidence, is a proper guide. Contemporary and concurrent
expositions are a reasonable evidence of the meaning of the

Again, what the framers and ratifiers understood it to mean is what it means, not what it means to someone 200 years in the future.


Hamilton, on the other hand, argued that the “grammatical,”
“popular,” and “obvious” meaning found “in the instrument itself,
according to the usual & established rules of construction” was controlling,

Again, the plain meaning of the text, as it was commonly understood.


§ 400. I. The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties. Mr. Justice Blackstone has remarked, that the intention of a law is to be gathered from the words, the context, the subject-matter, the effects and consequence, or the reason and spirit of the law. 3 He goes on to justify the remark by stating, that words are generally to be understood in their usual and most known signification

§ 401. Where the words are plain and clear, and the sense distinct and perfect arising on them, there is generally no necessity to have recourse to other means of interpretation

§ 405. II. In construing the constitution of the United States, we are, in the first instance, to consider, what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole, and also viewed in its component parts. Where its words are plain, clear, and determinate, they require no interpretation; and it should, therefore, be admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence, or to guard against some fatal evil.

In examining the constitution, the antecedent situation of the country, and its institutions, the existence and operations of the state governments, the powers and operations of the confederation, in short all the circumstances, which had a tendency to produce, or to obstruct its formation and ratification, deserve a careful attention. Much, also, may be gathered from contemporary history, and contemporary interpretation, to aid us in just conclusions. 7

I can go on and on, the point is that there was an accepted way to interpret the text, pretty much everyone agreed upon it, and while they all had minor quibbles with each other, not one person ever said any thing to the effect of "The text has no fixed meanings. The words used are really just statement of amorphous, free flowing concepts like liberty that need to be interpreted according to the world view of the liberal beltway elite of the day" Nothing even close to that.

Again, you're free to disagree with Madison, Hamilton, Jefferson, Story, Marshall, Kent, Tucker and every other well known authority on the Constitution, but I see through you;re act, and you're not fooling me.

The Fifth Amendment prohibits, among other things, a person's being "twice put in jeopardy of . . . limb" for the same offense. At the time the Bill of Rights was adopted, cutting off ears and branding were common punishments. Does the reference to limbs in the Double Jeopardy Clause, combined with an "originalist" reading of what punishments are cruel and unusual, endorse or authorize the present day infliction of mayhem upon a convicted offender?

Sarah, nothing in your quote from Story would cause the slightest problem for me or for Justice Brennan. Story is describing standard principles of common law construction. I agree with them all.

I say the same for your quote from Hamilton. He's just re-stating the "plain meaning rule" and adding the usual rules of construction.

I've said this 3 times now: EVERY Justice starts with the text. There is no disagreement on this, never has been.

Your quote from Madison's letter to James Jackson is out of context. Here's the full quote:

"That most of us carried into the Convention a profound impression, produced by the experienced inadequacy of the old Confederation, and by the monitory examples of all similar ones, ancient and modern, as to the necessity of binding the States together by a strong Constitution, is certain. The necessity of such a Constitution was enforced by the gross and disreputable inequalities which had been prominent in the internal administrations of most of the States. Nor was the recent and alarming insurrection, headed by Shays, in Massachusetts, without a very sensible effect on the public mind. Such, indeed, was the aspect of things, that, in the eyes of all the best friends of liberty, a crisis had arrived which was to decide whether the American experiment was to be a blessing to the world, or to blast forever the hopes which the republican cause had inspired; and what is not to be overlooked, the disposition to give to a new system all the vigour consistent with Republican principles was not a little stimulated by a backwardness in some quarters towards a Convention for the purpose, which was ascribed to a secret dislike to popular Government, and a hope that delay would bring it more into disgrace, and pave the way for a form of Government more congenial with monarchical or aristocratical predilections.

This view of the crisis made it natural for many in the Convention to lean more than was, perhaps, in strictness, warranted by a proper distinction between causes temporary, as some of them doubtless were, and causes permanently inherent in popular frames of Government. It is true, also, as has been sometimes suggested, that in the course of discussions in the Convention, where so much depended on compromise, the patrons of different opinions often set out on negotiating grounds more remote from each other than the real opinions of either were from the point at which they finally met.

For myself, having, from the first moment of maturing a political opinion down to the present one, never ceased to be a votary of the principle of self-government, I was among those most anxious to rescue it from the danger which seemed to threaten it; and with that view, was willing to give to a Government resting on that foundation as much energy as would insure the requisite stability and efficacy. It is possible, that in some instances this consideration may have been allowed a weight greater than subsequent reflection within the Convention, or the actual operation of the Government, would sanction. It may be remarked, also, that it sometimes happened, that opinions as to a particular modification or a particular power of the Government had a conditional reference to others, which, combined therewith, would vary the character of the whole.

But whatever might have been the opinions entertained in forming the Constitution, it was the duty of all to support it in its true meaning, as understood by the nation at the time of its ratification."

Madison was describing how the Framers disagreed with each other at the Convention but were obligated to accept it as a compromise. He was not, here at least, setting forth a permanent rule of construction.

Your third quote from Madison was from a speech he gave in Congress in 1791. I don't find his comments all that relevant, for the simple reason that no other source of construction was available to him or anyone else at that time. Even so, his statement generally reflects a common law rule of construction and I agree with it to that extent.

In this particular case, Madison was opposing the Bank of the United States. As we all know, he lost that battle. I'd say that his defeat was pretty good evidence that he was, in this case, wrong about the contemporary construction. His contemporaries may also have disagreed with his principles of construction, but I don't have time to look that up right now.

I can't find your first quote from a reputable source online (freerepublic doesn't count), so I won't comment more than to say that Madison's opinion with respect to the Bank seems inconsistent with his statements here. Be that as it may, if Madison insisted on original intent analysis, I disagree.

I should note that even if Madison himself did apply an original intent analysis, that was simply using the understanding of what for him was more or less the present day. To that extent, I have no problem with him doing so.

Finally, I should clarify one aspect of my agreement with Story, Hamilton, and, in part, Madison. They all refer to the intent of "the parties". Without getting into the debate whether states or people are "parties" to the Constitution, I don't think that the parties today are the same as they were in 1790. For that reason alone, it makes no sense to freeze the interpretation at that moment in time.

James Madison is an awkward person to use as a polestar with regard to "uncompromising" fidelity to his own theory of what the Constitution required. He strongly opposed the First Bank of the US as "unconstitutional." Later, as President, he signed the Charter of the Second Bank. He in no way indicated that he had reconsidered his original position and found it deficient. Instead, he explicitly “waiv[ed] the question of the constitutional authority of the Legislature to establish an incorporated bank, as being precluded, in my judgment, by the repeated recognitions under varied circumstances of the validity of such an institution, in acts of the Legislative, Executive, and Judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation.” what this means, obviously, is that he accepted a notion of a "living Constitution," though he obviously did not use that term, whose meaning could NOT be limited to "original intent." So the obvious question is whether those who would impeach Justices Marshall and Brennan (for starters) would also retroactively impeach James Madison for signing the Second Bank bill. (Of course, you could always argue that Madison was simply wrong in his initial position and that Hamilton was right, but that, equally obviously, merely points to the impossibility of deriving any unambiguous" original intent or meaning" with regard to controversial issues on which Framers disagreed.)

Thank you Prof. Levinson for expanding on my too-cryptic reference to "Madison's opinion with respect to the Bank".

I also wanted to add that it's never very persuasive for an originalist to cite a few selected authorities. As I said above, a real originalist would make some effort to determine as many views as possible in the effort to ascertain the collective intent of those who enacted the Constitution.

Efforts have, in fact, been made to understand the original understanding regarding how the Constitution should be construed. A good starting point is H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985). It's available online at

Mark Field is just lying. Not every Justice starts with the text. They may start with what they want the text to mean, but they don't start with what it actually means.

I have some simple questions for him in that regard:

1: What does "cruel and unusual punishments" mean? What was the common understanding of that term in 1791?

2: What does "due process of law" mean? What the commonly understood and unanimously acceoted understanding of that term in 1791 and in 1868?

All of the above phrases had concrete meanings. Every one knew what they meant. There wasn't really any debate.

Liberals have twisted them beyond recognition to the point that they now mean whatever Liberals want them to mean.

Again, it's amazing how liberals will just ignore the words of the men who framed and ratified the Constiutution to substitute their own notions of what the Constiutuion should mean. They refuse to participate in the democratic process and depend on activist liberal judges to give them rights.

They know they'd never get the people to approve of abortion on demand or gay marriage or sodomy or affirmative action or banning the death penalty or flag burning or letting criminals off on technicalities so they have to have their liberal judges do it for them.

I love Blackmun's "the liberty guaranteed by the 14th amendment is broad enough to encompass abortion" what was he smoking? There is no liberty guaranteed by the 14th amendment.

The due process clause is merely procedural. Everyone at the time knew that. It was so unanimous that John Bingham, the drafter of the 14th himself didn't even need to discuss it becuae there was no need. As he himself said "it was settled long ago".

Blackmun just gives ipse dixit that becuase he says it, it's so. He cites nothing in the text to back him up. Wow, Harry, really persuasive there. He offers not one iota of evidence to support his claim.

And he offers nothing that would provide any justified reason for saying that if the guaranteed liberty includes abortion on demand, there's really nothing it doesn't include. He gives no principled reason for distinguishing between abortion and any other "liberty" that someone may want ot exercise. IOW, the framers in 1868 granted the right of unfettered freedom. Preposterous.

Furthermoer, abortion is the only right that is only available to one gender. Only women have it. What happened to the equal protection clause liberals are so fond of? Can any liberal name one right that only men have? Is speech, press, religion, arms, counsel, self-incrimination, trial by jury, confrontation of witnesses, etc... segregated by sex? No.

But for some reason, in 1868, when abortion wasn't even really a big issue, the framers decided to amend the Constitution to grant women, who barely had any rights as it was, who could be banned from voting and barred from working, the right to abortion on demand? Sure. No one has yet been able to explain how an amendment that did not give women the right to vote or the right work somehow DID give them the right to abortion on demand? It's really a logical fallacy.

Mark Field and his liberal detractors can keep on spewing their distortions and lies, but they have to be quaking in their boots. As soon as Stevens or Ginsbyrg leaves(hopefully sooner rather than later), the conservatives will have a majority and all these liberals decisions will fall by the wayside.

Then liberals will actually have to win their battles at the ballot box and not in the courtroom. And of course, they'll lose most of the time and probably be crying about how unfair things are. That 5th vote can't happen soon enough.

And for John, yes the 8th amendment does allow for branding and ear clipping. It deosn't require it, but it does not bar it either. However, I doubt either of those would ever be put in use today. Why? Because of the democratic process that liberals are so afraid of. Not there is anything in the Constitution that prevents it from happening.

And by the way, the SCOTUS has ADMITTED that it ignores the text. It has openly confessed that its decisions have nothing to do with the text but rather with what a bunch of unelected, misinformed judges desired the law to be in contrast to what the law was.

From the unanimous decision in U of Michigan v Ewing. A Court that included Brennan, Marshall, Stevens and BLackmun, by the by.

[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments. [120]

IOW, the Court confessed that their entire due process jurisprudence(abortion, incorporation, sodomy, unemumerated rights, privacy rights, etc...)has NOTHING to do with the meaning of the text or the history of that text. It has NO RELATION to it whatsoever. They came clean.

You can continue to argue with the me, but the Court itself has admitted that it disregarded the plain menaing and context and history of the language of the Constitution in favor of some subjective meaning that they themselves have attached to it.

They admitted that it is entirely Judge-made law, entirely based on the pronouncements and wishes of unelected, unaccountable Judges, held in place by stare decisis concerns.

So, Mark Field, you have been exposed as either a liar or a fraud, or both. The Court's own statements put the lie to the distortions you've been peddling.

i have been alternately fascinated, amused and disgusted by the posts herein, but i have now found the single most ridiculous statement i have ever seen on this blog. I quote:

"Furthermoer (sic), abortion is the only right that is available toone gender. Only women have it. What happened to the equal protection clause liberals are so fond of".

On behalf of liberals everywhere (although I do not consider myself to be especially liberal), I will not stand in the way of any man (over the age of consent) who seeks to terminate medically his own pregnancy via abortion.


you totally miss the point. only a woman has the right to kill her baby in the womb. the baby is as much the father's as it the mother's. but the father can;t kill his baby in the womb. only a mother has the right to terminate a pregnancy.

i asked you to name one right that only belongs to a man. you still haven't done so. There is no other right besides the right to abortion that only belongs to a segregated group of people. there aren't any male only rights, any black only rights, any white only rights. but there is a woman only right. the right to abortion is the only right in the entire Constitution that fits that category.

let me ask you this. let's say a man get's a woman pregnant. a few months in to the preegnancy, he decides that he's not ready to be a father, that he can't handle the responsiblity, that he has to much going on his life, job, whatever.

So, he decides that he wants to "terminate" his pregnancy by renouncing all obligations and responsibilities he has to the baby. he wants a male abortion where he absolves himself of all financial and legal responsiblity to the child. should he be able to do so? should that right be guaranteed to him by the Constitution? If not, why not? And what is the difference between what he's asking for and the right that a woman already has? after all, he's not killing anyone, he's just absolving himself of financial obligations.

if a mother wants to get an abortion, should the father be able to file an injunction to stop her from so doing in order to save the life of his child? if not, why not?

i look forward to your answers to the above questions

Dialogue seems to have come to a screeching halt, so I'm just going to talk to the ether about the most bizarre of the many strange claims for originalism: that "liberals" are afraid of the democratic process and (implicitly) that originalism is more democratic. This is wrong in so many ways that I'm not sure I have time or space to mention them all.

Let's start by getting the issue straight. The "more democratic" claim seems to rest on the belief that courts should defer to legislatures, and that the more often courts strike down statutes, the less democratic they are in their behavior. This belief is itself confused and wrong in several ways which I'll mention below.

Let's start with principle (always a good starting point). Originalism is a technique for resolving ambiguities in the text of the Constitution. It's a "how" doctrine; it competes with other "how" doctrines like common law reasoning, natural rights theory, etc.

The key point is this: nothing in originalism says anything at all about how often an originalist would vote to strike down a statute. It might be more often, it might be less; the doctrine itself doesn't say.

In fact, if originalism were to become Court doctrine today, it's easy to see that the Court would be striking down many more statutes than it would under other doctrines. The task of undoing 200 years of jurisprudence would demand that.

Even without that problem, originalists might strike down statutes which "liberals" would uphold. Let's consider a purely hypothetical case in which an originalist Court might strike down a statute where a "liberal" Court might uphold it.

Suppose that the city of New London, CT were to pass, by majority vote, a law permitting it to take, by eminent domain, private property for fair value and then convey that property to a private developer for an urban renewal project. Sounds silly, I know, but it is just a hypothetical.

A "liberal" Court might uphold the actions of the local majority based upon a series of judicial decisions, both state and federal, allowing such laws. That is, it might apply precedent. An originalist Court would, instead, look to the text of the 5th Amendment. Gliding past some technical problems (the 5th Amendment didn't apply to the states in 1790), and tendentiously distinguishing the historical record justifying similar takings, an originalist might -- believe it or not -- vote to strike down the democratically enacted statute.

Thus, both theoretically and practically, nothing about originalism guarantees that it will be more deferential to legislatures.

Nor is it true that overruling a statute is always undemocratic. Sometimes it is, of course, but not always. An obvious example is Baker v. Carr (one person, one vote). No one could seriously argue that the "rotten boroughs" common in 1790 made the system more democratic than it is today. Lots of other obvious examples might be cited (e.g., whites only primaries, free speech cases) in which an originalist would force society to continue to accept the highly undemocratic practices of the 1790s. The democratic system itself couldn't change these practices precisely because it was (duh) undemocratic -- that's how the problem persisted for 175 years until 1964.

Now let's talk about individual rights. This appears to be the area which generates the loudest yelps from originalists, who want to limit the right to liberty so that it doesn't include abortion or gay marriage.

Few originalists will admit it, but their doctrine in this area gives them considerable problems with the equal protection jurisprudence of the last 50 years. From an originalist perspective, it's real hard to justify Brown. It's downright impossible to justify, say, Loving v. Virginia (see Marcossen, Original Sin), and many other civil rights cases.

Both the desire to restrict the right to liberty and the equal protection issue are directly related to the misunderstanding which permeates originalism when it comes to individual rights and democracy.

Why do we have a Bill of Rights? Some people like to quote James Madison, so I'll let him explain the problem:

"Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is cheifly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents." Madison to Jefferson, Oct. 17, 1788.

In other words, the problem of individual rights in a republic is (mostly) a problem of majority tyranny. If this is the case -- Madison says it is and I agree with him -- then telling "liberals" to rely on the democratic process is not just pointless, it's fraudulent. Even more so is this true for minorities -- the sad history of Jim Crow demonstrates that beyond a shadow of a doubt.

If democracy itself can't provide a remedy to the problem of majority oppression, if the problem is, instead, inherent in democracy, then another solution is needed. Thomas Jefferson gave it when he replied to Madison:

"In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent & kept strictly to their own department merits great confidence for their learning & integrity. In fact what degree of confidence would be too much for a body composed of such men as Wythe, Blair & Pendleton?" Jefferson to Madison, Mar. 15, 1789. See also Federalist 81.

Ironically, then, the original intent of at least some Founders was that the Courts would enforce individual rights. Originalists who deny this are denying their own doctrine.

phg, I'd just remind you (if you need it) that the Constitution nowhere protects the right of men to vote, but the 19A does protect the right of women. The 15A operates similarly with respect to blacks and whites.

How, and whether, you use this information is up to you.


i appreciate the hand, but really at this point, i've had enough on this thread. ms. weddington obviously knows everything. the rest of us don't know anything.

i have a flight leaving for montana in a few hours, where i'm going to stare at the mountains, breathe some clean air, laugh and joke with some old friends over a few beers, and live life the way it's supposed to be -- without somebody telling me what i'm supposed to think, and frankly, living and not thinking about the constitution, and those who pervert it for their own purposes, whatever they may be (in truth, not ms. weddington who appears to sincerely believes in what she believes in).

i've enjoyed the give and take, but it's time to move on to more important things. keep up the good fight. i'll be back after getting my head screwed back on correctly, and will check in.


Have a great trip! I envy you.

I just noticed a typo in my long post. The reference to Federalist 81 should have been "78 and 81".

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