Another example would be the argument that we didn’t need the 14th Amendment because its section 1 principles were immanent in the 13th

A good many of those who drafted and ratified the 14th are included in those who thought it unnecessary for that reason.
 

"The interesting question is how the New Deal achieved legitimacy (which it did) without amendments."

The interesting answer is: It didn't. Not constitutional legitimacy, anyway. Perhaps democratic legitimacy, but that's to say that we're in a post-constitutional state, the legitimacy of our government cut loose from the Constitution. But the state is not complete, the Constitution still represents a powerful icon of legitimacy, even if it's a hollow icon, deprived of any substance.

It's a very real source of friction in our system, the reality of post constitution, democratic legitimacy, coupled with the continuing illusion that the written constitution is still the basis on which our government operates. One of these days, I think, the disconnect between practice and text will just become too great to sustain, and the icon will have to be smashed.

That won't be a peaceful day.
 

In fact, that's why 'living' constitutionalism ultimately doesn't work, doesn't persuade: It's a theory of democratic legitimacy masquerading as a theory of constitutional legitimacy. That's why living constitutionalists simply can't bring themselves to admit that parts of the New Deal just flat out weren't constitutionally legitimate: They were politically legitimate, and that's what living constitutionalists really care about.
 

This comment has been removed by the author.
 

It's a theory of democratic legitimacy masquerading as a theory of constitutional legitimacy.

It's both at the same time. The fact that the country operated under different interpretations of the same language for many years before the New Deal does not and can not prevent us today from adopting our own, changed understanding of that same language. Lochner is no more legitimate than Wickard (and neither is Charles River Bridge).

Moreover, separating "democratic legitimacy" from "Constitutional legitimacy" makes no sense in a republican government resting on the sovereignty of the people. Any theory of our government has to account for both.
 

if we the people choose to modify the specific contract of the constitution and do so by the prescribed method .. or do so by majoritorian acceptance .. imo ..the original intent of the framers doesn't matter .. what matters is that the contract has been modified and the new contract is in place. it seems to me those who still resist the new deal can't accept the fact the contract has been changed ..and the changes have been accepted by collective generations of majorities since their enactment.

if "we the people" accept the system as constitutional does the carping of an entrenched minority of obscurantists deprive our collective and continued acceptance of it's legitimacy ??

isn't acceptance of majority rule a tenet of citizenship in a representative democratic constitutional republic ??
 

What originalism needs is a song for its themes. I've been thinking of South Pacific's "Some Enchanted Evening" as the melody with a first line:

"Some semantic meaning ... "

as a start. It may be difficult working in original intent, meaning, understanding, expectatation and other variations and referencing the founding fathers. The song may have to address slavery, the Civil War amendments, Reconstruction, the New Deal and Bush v. Gore. This could be a living originalism song by adding verses for similar subsequent major events. Why, this might even challenge "This Land Is Your Land, This Land is My Land" to describe what "We the People" think of when constitutional meaning becomes an issue. Perhaps a new musical aggravation [sick!] will surface called "Dead Hand of the Past." This can be followed by a Broadway musical "(Wo)Men in Robes" by Mel Brooks. Can't you just hear it,

"Some semantic meaning ...."
 

"Moreover, separating "democratic legitimacy" from "Constitutional legitimacy" makes no sense in a republican government resting on the sovereignty of the people. Any theory of our government has to account for both."

No, it does make sense, because they are different modes of legitimacy, with different implications. A theory of our government, a constitutional republic with representative democracy, has to account for both modes, because such a government is supposed to be legitimate in both modes at the same time. But that doesn't mean that it WILL be, and any theory of legitimacy which can't find any popular action illegitimate is only accounting for one of those modes, and abandoning the other.

What I'm saying is that living constitutionalism is less a theory of constitutions than a way of obscuring, perhaps most of all from living constitutionalists, that while we may still have representative democracy, we're losing our claim to be a constitutional republic.

We're transitioning to something more like England's 'constitutional' system, but haven't yet openly made the break.
 

Part 2: "Some Semantic Meaning ... "

Here's a verse in "Some Enchanted Evening" that might be retained:

"Who can explain it?
Who can tell you why?
Fools give you reasons,
Wise men never try."

No offense intended at the originalist/living constitutionalist posters and commenters at this Blog (and elsewhere) and all those searching for the Holy Grail of Constitutional interpretation for whom the following original verse may apply:

"Once you have found her,
Never let her go.
Once you have found her,
Never let her go!"
 

any theory of legitimacy which can't find any popular action illegitimate is only accounting for one of those modes, and abandoning the other.

Yes, and our system has precisely that legitimacy. You don't agree because you don't accept that the application given to the principles might change. That, however, is not the required; the whole point is to keep the Constitution flexible enough to last the ages. The Founders succeeded.
 

In these endless exchanges about orignalism as a means of interpreting the constitution, there is something missing---actually 50 missing pieces: state constitutions.

The fact is this: not one of the 50 state constitutions is interpreted on an "originalist" level. In truth, "horizontal federalism" as a means of interpretation is used far more frequently by state supreme courts, to say nothing of the habit of these courts of following the lead of the U. S. Supreme Court.

One would think (or wish) that the proponents of originalism would at least take a look at what has not happened on the state level, which effects most of our lives far more than what happens at the federal.

dah
 

Brett wrote: “We're transitioning to something more like England's 'constitutional' system, but haven't yet openly made the break..

I wonder about that. Surely, the reality is that the break was made with the Declaration of
Independence.

But the US Constitution was framed largely by people who were English gentlemen, many of whom were lawyers steeped in the common law tradition. Unsurprising therefore that when they set about framing a constitution they used English concepts which they proceeded to modify as they thought necessary – but thinking in English terms.

For example, your Bill of Rights was very largely based on our earlier Bill of Rights. The “no test” article was informed by their knowledge of the English Test Acts restricting public office (and even a university education) to communicants of the established church.

When they drafted both the constitution itself and their first laws, the framers used the then style of drafting of English legislation and assumed that the judicial system would adopt the remedies and the same process of reasoning as used by the courts with which they were familiar.

Thus what we call the “prerogative remedies” – habeas corpus, certiorari, mandamus, etc, made the transition from remedies granted by the Monarch’s judges in exercise of royal powers vested in the royal courts to remedies vested in the judicial branch.

In fact, the UK Courts, in particular the Privy Council, have looked to the US Courts for guidance on interpreting entrenched constitutions. Many former colonies were granted independence with written constitutions and there are still constitutional appeals to the Privy Council.

US Supreme Court cases are very frequently cited as persuasive authority. Likewise with the jurisprudence in relation to the human rights guarantees entrenched by the Human Rights Act.

What has instead happened in the USA is that the traditional common law incremental approach of the judicial process has been disrupted by the novelty (not to say heresy) of originalism. Had it remained where it belonged, as a fringe movement in academia, who knows?

But over the last 20 years the heresy has been espoused as part of the effort inspired by the Powell Memorandum [http://www.progressiveu.org/powell_memo] to shift the US judicial balance to the right in favour of business and against the individual.

Originalism was to be the snake oil against the environmentalists, consumerists and others who might disrupt the money making machine. Neither environmentalism nor consumerism were particular concerns of your founding fathers.

20 years on, where has this shift to the right taken the Courts ? In 2002 in The Queen on the Application of Abbassi & Another -v- The Secretary of State for Foreign Affairs [2002] EWCA Civ. 1598, a judgment of the English Court of Appeal, the Court said:

"The United Kingdom and the United States share a great legal tradition, founded in the English common law. One of the cornerstones of that tradition is the ancient writ of habeas corpus, recognised at least by the time of Edward I, and developed by the 17th Century into "the most efficient protection yet developed for the liberty of the subject" (per Lord Evershed MR, Ex p Mwenya [1960] 1 QB 241, 292, citing Holdsworth's History of English Law, vol 9 pp.108-125). The court's jurisdiction was recognised from early times as extending to any part of the Crown's dominions: "for the King is at all times entitled to have an account why the liberty of any of his subjects is restrained wherever that restraint is inflicted" (Blackstone, Commentaries (1768) vol 3 p.131, cited by Lord Evershed MR, ibid, p.292; see also the recent review of the authorities by Laws LJ, R (Bancoult) v Foreign Secretary [2001] 2 WLR 1219, 1236). The underlying principle, fundamental in English law, is that every imprisonment is prima facie unlawful, and that: "...no member of the executive can interfere with the liberty... of a British subject except on the condition that he can support the legality of his action before a court of justice" (R v Home Secretary ex p Khawaja [1984] 1 AC 74, 110, per Lord Scarman; citing the classic dissenting judgment of Lord Atkin in Liversidge v Anderson [1942] AC 206, 245 and Eshugbayi Eleko v Government of Nigeria [1931] AC 662, 670). This principle applies to every person, British citizen or not, who finds himself within the jurisdiction of the court: "He who is subject to English law is entitled to its protection." (per Lord Scarman, ibid p.111). It applies in war as in peace; in Lord Atkin's words (written in one of the darkest periods of the last war): "In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace." (Liversidge v Anderson [1942] AC 206, 245 at p.244)
As one would expect, endorsement of this common tradition is no less strong in the United States. In Fay v Noia (1963) 372 US 391, 400, Justice Brennan referred to:
" the 'extraordinary prestige' of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence... It is 'a writ antecedent to statute, and throwing its root deep into the genius of our common law... It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift remedy in all cases of illegal restraint or confinement...'" (adopting the words of Lord Birkenhead LC, in Secretary of State v O'Brien [1923] AC 603, 609).
…The position of detainees at Guantanamo Bay is to be considered further by the appellate courts in the United States. It may be that the anxiety that we have expressed will be drawn to their attention. We wish to make it clear that we are only expressing an anxiety that we believe was felt by the court in Rasul. As is clear from our judgment, we believe that the United States courts have the same respect for human rights as our own.”

6 years on, I question whether the English Courts would still feel able to say that the habeas corpus remains available as a swift and effective remedy in the USA.

For my part, I conclude that the Powell-inspired shift to the right has brought with it an excessive deference (not to say subservience) to the executive and a notable emasculation of your civil liberties.

More generally, as Justice Brennan and others foresaw, ascertaining the intent of the framers is often well-nigh impossible. In the recent “right to bear arms” case I rather thought the Justices were floundering a bit on the issue of “original intent” and to what extent such hypothetical intent could be modified for present circumstances.

We shall see how long the heresy holds sway. The law evolves incrementally and even if it were possible for a new administration to shift the judicial balance, I suppose it might take 50 years or more to put matters right.
 

Someone, maybe MF, once encouraged people to read the "Tyrannicide Brief" by Geoffrey Robertson ... a bit on subject given Mourad's discussion ... anyway, good book.

I'm amused and concur with Shag's musical interlude. I find these discussions a bit tedious, if amusing, in the search for the Holy Grail. One can get a bit patronizing really about all the effort that goes into it that seems too makeweight after a while.

This is not to say the discussions aren't somewhat worthwhile, but the lengths taken seem akin to sci fi fans debating some subject, and at some point, as attached to reality.
 

We shall see how long the heresy holds sway.

a most eloquent and informative post m. mourad ...
 

Joe, I do enjoy these and other posts, as well as the comments on the subject, as they all add (perhaps too voluminously) to a critical subject for which there may be no final resolution that all, or nearly close to all, may eventually agree upon.

It's somewhat like mysteries of the Universe that earthlings try to decipher, scientists and non-scientists included. If there is a supreme being out there observing what we earthlings are doing, might that supreme being take some nasty steps if we get too close to her secrets?

I look upon all this somewhat like the riddle:

If one could jump half the distance from point A to point B, and then continue tojump half the remaining distance, again and again, how many jumps would it take to reach point B?

The answer to this riddle plus understanding infinity and the true measure of Pi along with finding the Holy Grail of Constitutional interpretation may be judged by standards of a game of horseshoes: Close enough wins. Let the quests continue. I think Jack Balkin is ahead by a nose, but that can change.
 

You may read a sentence,
You may read a sentence
inside a crowded text.
And somehow you know,
You know even then,
That sometime you'll need to
know just what it meant.

Some semantic meaning,
In your head it's hidin'
You may think it's hidin'
Inside the crowded text,
But time after time,
As strange as it seems,
The meaning that's hiding
S'only found in your dreams.
 

PMS Chicago:

In the words of George Gershwin,

"S'Wonderful, S'Marvelous .... "

or Cole Porter,

"It's delightful, it's delicious, its’s delectable, it’s delirious, it’s de limit, it’s de-lovely " (and thankfully, not DePalma).

Maybe we can get Alec Baldwin (who did South Pacific walk-throughs on PBS) for the tryout. But we do need more verses setting forth the semantic battlefield of the originalists versus the living constitutionalists. And maybe a verse or two of FDR’s New Deal and George W’s Fast Re-Shuffle with Roberts and Alito. It can only go from verse to worse.
 

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