Balkinization: A Theory of Constitutional Workarounds

Comments:

"The last step is to ask whether the workarounds, with all their costs, are less costly or less arduous than using Article V. If they are, this does not mean that the Constitution is fine just the way it is. Rather, it means that workarounds may be a better solution than Article V."

Except, of course, that if you're not using Article V for changes which call for a genuine amendment, you don't have a constitution anymore.

We have to ask, not just whether a work-around is better in a specific given situation, but instead whether a general rule of using work-arounds rather than amendments is better than a general rule of resorting to amendment.

Because work-arounds aren't used just when they're the better approach, they replace amendment. They're WHY the Constitution hasn't been effectively amended in decades. (I say 'effectively' because the judiciary was only too glad to render the last amendment ratified toothless.)

# posted by

Brett : 12:14 PM

I agree with Jack that there are indeed non-amendatory "workarounds" available for "last-minute" rulemaking. Given the predictability of such rulemaking, which was certainly engaged in by Bill Clinton, it then becomes an interesting political question why, at least to my knowledge, no one with any political clout promoted such legislation.

Indeed, since it is my impression that Congress is merely in recess right now (rather than formally adjourned, so that it would take the President to bring it back into session), why don't Pelosi and Reid show some backbone by threatening legislators with having to return to DC in order to block the particular rule?

What is particularly valuable about Jack's (and Mark Tushnet's) interest in "workarounds" is that it forces us to figure out whether any parts of the Constitution are truly hard-wired. I'm assuming, for example, that there is no way, at least short of the particular circumstances of a civil war, to change the allocation of power in the Senate without an amendment.

# posted by

Sandy Levinson : 12:30 PM

Sandy:

Do you mean that we could amend the Constitution to change the apportionment of votes in the Senate? I thought the only way we can do that is to have another constitutional convention.

Would be nice. . .

# posted by

pinkerd : 12:59 PM

You could amend the Constitution to abolish the Senate, which you might as well do, if it was going to have the same basis for representation as the House.

I think we do need to clarify what constitutes a "work-around". If you object to the current length of the transition period, no 'work-around' is necessary, since the date of the election can legitimately be changed by legislation: The length of the transition is a legislative, not constitutional, matter.

The term 'work around' should be reserved for instances where constitutional features are actively circumvented, such as compacts to effectively undo the electoral college.

# posted by

Brett : 1:23 PM

Professor Balkin: "The equivalent of transaction costs are the costs of putting together the coalition to create the workaround, plus the costs of monitoring the bargain, preventing defection, and so on."

What you list are not equivalents of transaction costs, but explicit examples of the generic term. Perhaps you were writing informally. Or do I misunderstand the concept?

One of the primary errors of Coasian analysis is that transactions have not only costs but advantages. Transactions mean interactions, which in turn can lead to systems of mutually beneficial interactions over time, as opposed to a single transaction at one moment in time. Coasian discussions tend to omit any such systemic interactional advantages. Put differently, Coase's views privilege the dominant competition narrative and ignore the undeniable existence of cooperation as a fact of all forms of life.

Another problem with Coasian analysis comes closer to agreeing with Brett's poorly phrased complaints: removing transaction costs does not change right into wrong. Coase reaches absurd conclusions in part by relying on the underlying presumption that the only values that can be validly discussed are those that can be represented financially [e.g., equating the affirmative harm done to the physician by the noisy confections manufacturer with the "harm" "done by the doctor" in obtaining from the larger societal body protections from the noisy confections manufacturer.]

# posted by

Robert Link : 1:26 PM

Brett's arguments here and elsewhere treat the Constitution as a rigid document rather than the flexible one it was intended to be. As John Marshall explained it, a Constitution is “the act of a people, creating a government, without which they cannot exist as a people. The powers of this government are conferred for their own benefit, are essential to their own prosperity, and are to be exercised for their good, by persons chosen for that purpose by themselves. The object of the [Constitution] is not a single one which can be minutely described, with all its circumstances. The attempt to do so would totally change its nature and defeat its purpose. [The Constitution] is intended to be a general system for all future times, to be adapted by those who administer it, to all future occasions that may come within its own view. From its nature, such an instrument can describe only the great objects it is intended to accomplish, and state in general terms the specific powers which are deemed necessary for those objects. To direct the manner in which these powers are to be exercised, the means by which the objects of the government are to be effected, a legislature is granted. This would be totally useless if [the Constitution defined every specific detail the legislature could enact].”

# posted by

Mark Field : 1:38 PM

Sandy's problem is that we have a no longer accountable lame duck President overseeing a completely unaccountable executive bureaucracy legislating contrary to the intent of a newly elected government and presumably the voters who elected it.

Beyond Brett's apt critique that the entire project of non-Article V constitutional "workarounds" is itself contrary to the idea of constitutional government, I do not see why a constitutional workaround is applicable. There is no provision of the Constitution granting the Executive legislative power to workaround.

The only reason we have this problem is that the New Deal Court invented a "workaround" for the "hardwired" provisions of Article I which expressly grants Congress plenary power to legislate.

To paraphrase Reagan, workarounds are not the solution, they are the problem.

# posted by

Bart DePalma : 2:41 PM

Brett:

[Prof. Balkin]: "The last step is to ask whether the workarounds, with all their costs, are less costly or less arduous than using Article V. If they are, this does not mean that the Constitution is fine just the way it is. Rather, it means that workarounds may be a better solution than Article V."

Except, of course, that if you're not using Article V for changes which call for a genuine amendment, you don't have a constitution anymore.

Brett: The whole point of the post was that such changes don't require any Constitutional amendment. What the legislature gives, it can just as easily take away....

Cheers,

# posted by

Arne Langsetmo : 7:21 PM

"Brett: The whole point of the post was that such changes don't require any Constitutional amendment. What the legislature gives, it can just as easily take away...."

Give a safe cracker enough C-4, and he doesn't require a combination, either. There are 'work arounds' which don't deserve to be called such, like changing the election date if you don't like how long the transition is. That's not working around anything, it's just legitimate change.

And there are 'work arounds', like getting the judiciary to pretend that all commerce is interstate, which are quite deserving of the name, and only fail to require constitutional change because they involve violating that constitution, instead.

# posted by

Brett : 7:30 PM

Brett:

The term 'work around' should be reserved for instances where constitutional features are actively circumvented, such as compacts to effectively undo the electoral college.

Why would such compacts "effectively undo the electoral college"?

Given states were allocated the decision as to how to select electoral voters (including by poker game or astrological sign), wouldn't your beef about the way any state did this be with the state that did so, rather than with violations of the 'intent" of the Constitution?

Cheers,

# posted by

Arne Langsetmo : 7:46 PM

@Brett,

Do you think it fair to describe your complaints as faintly partisan? Or are you equally upset by extra-constitutional measures such as the 2001 and 2002 AUMF, a pair of workarounds for the Constitutionally prescribed methods of declaring war?

# posted by

Robert Link : 8:09 PM

@Mark Field, PMS_Chicago, et al,

Have you read Coase's "The Problem of Social Cost"? (Warning, the link is a pdf.) If so, I'd be interested to read thoughts on my micro-critique upthread. In a nutshell, I see that particular paper as question begging social darwinist apologetics.

# posted by

Robert Link : 8:13 PM

My chief complaint about the electoral college compact is non-constitutional in nature: It's an unreliable lash-up, with serious problems of defection likely, since the only way a state party to such a compact influences the outcome is by assigning it's electors in a fashion unpopular with that state's electorate, not exactly something you should rely upon elected officials to do. And I wouldn't count on the courts to enforce such a compact if a state defects.

You want eliminating the electoral college to be reliable? Article V is the way to go, just ABOLISH that sucker, and leave the hamster wheels and mousetraps in the closet.

# posted by

Brett : 8:17 PM

"Or are you equally upset by extra-constitutional measures such as the 2001 and 2002 AUMF, a pair of workarounds for the Constitutionally prescribed methods of declaring war?"

Yes, actually, I think Congress should use the words "declaration of war" if war is to be declared. The problem is that Congress is run by cowardly rent seekers, who don't want to do anything that would require them to actually take responsibility if things go south. They'd rather just kick back and rake in the graft. (You think Congressmen get rich while in office by coincidence?) So they've delegated more and more and more power to the executive.

Most of the problems Sandy has with this 'defective' constitution are actually the result of NOT following it, due to an accumulation of... work-arounds. Most of which are aimed at giving Congress the ability to claim something isn't their fault.

# posted by

Brett : 8:22 PM

Robert Link said...

@Brett, Do you think it fair to describe your complaints as faintly partisan? Or are you equally upset by extra-constitutional measures such as the 2001 and 2002 AUMF, a pair of workarounds for the Constitutionally prescribed methods of declaring war?

Brett: Yes, actually, I think Congress should use the words "declaration of war" if war is to be declared.

The Constitution does not require magic words. A declaration of war is in fact a congressional authorization to use military force regardless of what Congress chooses to call the act. Thus, it is not a workaround for the Congress to comply with the requirement to declare war by enacting an AUMF.

An example of a workaround for the requirement to declare war was to call the Korean War a police action and then claim that there was no war to declare.

# posted by

Bart DePalma : 10:47 PM

Robert:

Congress first used the equivalent of an AUMF to authorize the First Barbary War without using the term declare war but noting that a state of war existed.

# posted by

Bart DePalma : 10:51 PM

Robert, I haven't read it, but I'll try to and let you know my comments, if any.

# posted by

Mark Field : 11:34 PM

This comment has been removed by the author.

# posted by

Arne Langsetmo : 6:10 AM

Brett:

My chief complaint about the electoral college compact is non-constitutional in nature: It's an unreliable lash-up, with serious problems of defection likely, since the only way a state party to such a compact influences the outcome is by assigning it's electors in a fashion unpopular with that state's electorate, not exactly something you should rely upon elected officials to do....

But the Constitution makes no provision that the electors must do something "popular with [the] state's electorate". As I said, if a state wanted to do so, they could allocate electors by a poker game.

... And I wouldn't count on the courts to enforce such a compact if a state defects.

You are right. Trying to use a compact to enforce electoral voter compliance might be an issue. But then, that's already an issue. Some electors have cast "protest" votes". There are laws in some states, AFAIK, that bind the electors to vote for the slate of the party they represent, but I don't know if such laws could be enforced; probably not by the federal government absent some Fourteenth Amendment issue or such.

You want eliminating the electoral college to be reliable? Article V is the way to go, just ABOLISH that sucker, and leave the hamster wheels and mousetraps in the closet.

That is true. You want it to happen, period, and the compacts may be a more effective solution.

Cheers,

# posted by

Arne Langsetmo : 6:11 AM

"Bart" DeBugblatter:

[Robert Link]: Brett, Do you think it fair to describe your complaints as faintly partisan? Or are you equally upset by extra-constitutional measures such as the 2001 and 2002 AUMF, a pair of workarounds for the Constitutionally prescribed methods of declaring war?

Brett: Yes, actually, I think Congress should use the words "declaration of war" if war is to be declared.

The Constitution does not require magic words. A declaration of war is in fact a congressional authorization to use military force regardless of what Congress chooses to call the act. Thus, it is not a workaround for the Congress to comply with the requirement to declare war by enacting an AUMF.

I tend to agree; I don't think that a declaration of war needs "magic words". Much as a contract can be legal and binding without ever using the word "contract". However, as a practical matter, when you use the technical terms of art, there's less chance for misundestanding and dispute.

But: That wasn't the problem with the 2001 and 2002 AUMFs. The problem is they were an unconstitutional delegation of discretion as to who would be warred on, when (if at all), and under what circumstances.

It would be silly, for instance, to say that the 2001 AUMF was a license for Dubya to wage war on Belgium (or Iraq...) just on his own say-so that the AUMF had said he could.

Cheers,

# posted by

Arne Langsetmo : 6:19 AM

So looking to some of the harder hard wirings, could the provision that no state be denied equal representation in the Senate without its consent be stricken and a provision for allocating Senate seats by population added? Or could an amendment specify a method of combining or dividing states for representational purposes? Could Article V itself be amended to change from a proportion of states to any number of states comprising a proportion of the national population?

# posted by

Anonymous : 6:26 AM

"But the Constitution makes no provision that the electors must do something "popular with [the] state's electorate". "

Didn't say the Constitution did; A state legislature could decide that the electors would be allocated according to pigeons shitting on a list set out in the park, and it would be constitutional.

But would they be reelected if they did so? THAT is why whether the compact works is dependent on public opinion. Say California joins such a compact, and is looking, as usual, to go overwhelmingly Democratic. And then a Republican is leading the popular vote going into the election... Think the California legislature is really going to let all those electors be handed to the candidate their constituents just voted against?

A compact is easier to put together than an amendment is to ratify. Well, no, I think the amendment would be easy to ratify, you'd just never get Congress to send it to the states. But would the compact work in practice? I don't think so. The amendment would.

# posted by

Brett : 7:06 AM

# posted by

Shag from Brookline : 8:37 AM

Arne Langsetmo said...

BD: The Constitution does not require magic words. A declaration of war is in fact a congressional authorization to use military force regardless of what Congress chooses to call the act. Thus, it is not a workaround for the Congress to comply with the requirement to declare war by enacting an AUMF.

I tend to agree; I don't think that a declaration of war needs "magic words". Much as a contract can be legal and binding without ever using the word "contract". However, as a practical matter, when you use the technical terms of art, there's less chance for misundestanding and dispute.

I agree. Unfortunately, we have arrived at a point where the President does not want to admit that he is required to seek a declaration of war and Congress does not want to take responsibility for the wars it declares. Thus, we end up with this game of pretend.

But: That wasn't the problem with the 2001 and 2002 AUMFs. The problem is they were an unconstitutional delegation of discretion as to who would be warred on, when (if at all), and under what circumstances.

It would be silly, for instance, to say that the 2001 AUMF was a license for Dubya to wage war on Belgium (or Iraq...) just on his own say-so that the AUMF had said he could.

arne, think about it for a second. Declarations of war provide just this flexibility.

When Congress declared war against Germany and its allies in WWII, FDR decided if, where and when to deploy military force at any point around the world from Germany to South America where the enemy could be found.

The AUMFs against al Qaeda, its allies and supporters and against Iraq provide the same flexibility.

The interesting debate here which we have pretty well exhausted in prior threads is whether Article I grants Congress the power to simply start a war or also to limit its scope and duration.

# posted by

Bart DePalma : 9:50 AM

Do "Constitutional Workarounds" respond, relate to or reflect "Originalism"? Or are these merely "Plan Bs" by another name? Congress' powers to legislate are clear. It is the exercise of (or failure to exercise) such powers that creates the problems. So is there really "A Theory of Constitutional Workarounds"?

In Marshall's view (which is consistent with Madison's view in Federalist 44), the whole point of the Constitution is to be flexible enough to provide for "workarounds". In his view, at least, that was the original intent. Others from that era (e.g., Jefferson) disagreed strongly.

So looking to some of the harder hard wirings, could the provision that no state be denied equal representation in the Senate without its consent be stricken and a provision for allocating Senate seats by population added?

It seems to me that an amendment is an amendment. If you (a) strike the provision that excepts the Senate from amendment; and (b) then amend the Senate, you could do that. Theoretically. In practice, of course, the smaller states will never consent to giving up their (in Brett's term) "rents".

# posted by

Mark Field : 11:09 AM

John Marshall used the phrase "totally useless," Mark? I'm not even sure that Thurgood Marshall used 'totally' in that way in any published work.

# posted by

Asher : 12:27 PM

John Marshall used the phrase "totally useless," Mark?

Sorry, I don't understand the question. Where does the phrase "totally useless" come from?

# posted by

Mark Field : 1:03 PM

Here's where it comes from, your comment way above:

As John Marshall explained it, a Constitution is “the act of a people, creating a government, without which they cannot exist as a people...The attempt to do so would totally change its nature and defeat its purpose.... This would be totally useless if [the Constitution defined every specific detail the legislature could enact].”

At first I assumed you just put your second quotation mark in the wrong spot, but I take it by your brackets that you thought that was a real quote. All I can say is whoever passed that on to you did a real bad job, or, the Oxford English Dictionary somehow missed out on the fact that John Marshall was using totally in our contemporary colloquial way, even though their first listed usage is from 1972.

# posted by

Asher : 1:10 PM

Robert, I did take a look at Coase's paper and in fact I have read it, albeit many years ago in Torts class. It pissed me off then and I don't find it any more persuasive today.

One thing which always struck me is how dismissive Coase is of property rights. Take his example of straying cattle which destroy crops. The only way he can claim that harm is "inflicted" on the cattle owner is to ignore the property rights of the farmer whose crops they destroy. In normal discourse, the direction of fault is clear because we at least implicitly acknowledge the property right of the farmer and the corresponding duty of the rancher to fence in his cattle.

What Coase does is ignore this right and the corresponding fault in return for what he considers economic efficiency. The flaw here is that "efficiency" can only be defined within a given system. If we implicitly eliminate the property rights as Coase would have us do, the whole system becomes less efficient, not more. It's a downward spiral, akin to the situation which arises when someone stands up in front of you at a football game, thus forcing you to stand also and, eventually, everyone in the stadium is less comfortable.

# posted by

Mark Field : 1:12 PM

It's a real quote. Use of the word "totally" was common then. Here, for example, is Hamilton in Federalist 32: "This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT." Emphasis added.

Note that Marshall used the word twice in the passage I quoted. The quote is from Gunther (Ed.), John Marshall’s Defense of McCulloch v. Maryland, pp. 170-1.

# posted by

Mark Field : 1:20 PM

Brett:

[Arne]: "But the Constitution makes no provision that the electors must do something "popular with [the] state's electorate". "

Didn't say the Constitution did; A state legislature could decide that the electors would be allocated according to pigeons shitting on a list set out in the park, and it would be constitutional.

It's rather insulting to explain to me what I pointed out to you twice. And obviously unnecessary.

But would they be reelected if they did so?...

Perhaps. Perhaps not. That's up to them, isn't it? Do you think that state legislators are required to do what you (or someone else) thinks is popular?

... THAT is why whether the compact works is dependent on public opinion....

Perhaps. Perhaps not. But so what?

... Say California joins such a compact, and is looking, as usual, to go overwhelmingly Democratic. And then a Republican is leading the popular vote going into the election... Think the California legislature is really going to let all those electors be handed to the candidate their constituents just voted against?

They may be punished for the results. But such is life. There's other considerations as to why a state would go for such an approach or not. No one said that it would be universally popular. But that's apart from whether it would work as intended if passed by enough states. To suggest that states won't go for such is not an answer as to the feasibility of such given the starting premise that it is indeed passed.

A compact is easier to put together than an amendment is to ratify. Well, no, I think the amendment would be easy to ratify, you'd just never get Congress to send it to the states. But would the compact work in practice? I don't think so. The amendment would.

The amendmend, I grant you, is the more foolproof means of achieving the ends. I never argued differently. It is in itself harder to achieve, though.

Cheers,

# posted by

Arne Langsetmo : 2:20 PM

"Bart" DePalma:

[Arne]: But: That wasn't the problem with the 2001 and 2002 AUMFs. The problem is they were an unconstitutional delegation of discretion as to who would be warred on, when (if at all), and under what circumstances.

[Arne]: It would be silly, for instance, to say that the 2001 AUMF was a license for Dubya to wage war on Belgium (or Iraq...) just on his own say-so that the AUMF had said he could.

arne, think about it for a second. Declarations of war provide just this flexibility.

No, they don't.

When Congress declared war against Germany and its allies in WWII, FDR decided if, where and when to deploy military force at any point around the world from Germany to South America where the enemy could be found.

But he was not free to wage war on Chile ... or the United Kingdom. The "enemy" was Germany (and Japan).

Letting Dubya decide who the "enemy" is after the declaration of was is to make the declaration of war a nullity; as much an establishment in the executive of this power as would be if the Constitution had done so (which it did not).

The AUMFs against al Qaeda, its allies and supporters and against Iraq provide the same flexibility.

The flexibility to attack Belgium. Yes, you are right.

The interesting debate here which we have pretty well exhausted in prior threads is whether Article I grants Congress the power to simply start a war or also to limit its scope and duration.

As I've said, and you have not refuted, Congress may -- if it wishes -- require that all troops go into battle armed only with sporks. It may be stoopid, but if it happens, it's the combined "wisdom" of Congress rather than the whims of a doofus like Dubya. And for that I am grateful.

Cheers,

# posted by

Arne Langsetmo : 2:29 PM

the Oxford English Dictionary somehow missed out on the fact that John Marshall was using totally in our contemporary colloquial way, even though their first listed usage is from 1972.

Odd. Merriam-Webster puts the first usage of "totally" at 1509. Maybe you and the OED are seeing something subtle in the definition of "totally" that I'm not picking up on. Maybe 1972 marks its career as an interjection meaning "yes, absolutely, it's what I was born to do, etc."?

Are you keen on amending the Constitution, Sandy?

Totally!

# posted by

PMS_CC : 5:05 PM

@Bart: "Congress first used the equivalent of an AUMF to authorize the First Barbary War without using the term declare war but noting that a state of war existed."

I recall a couple of years ago when I was only beginning my political education and activism (and, from such a position of ignorance, briefly took you seriously) that this was a favored reference of yours. Today I only wonder which of your sources first handed this to you and how you convinced yourself it is such a trump card.

# posted by

Robert Link : 6:26 PM

Overheard: "The Constitution does not require magic words."

Odd thing to hear from a strict constructionist, eh? No one ever said consistency was part of blatant partisan eristics, and so long as the magic words "living constitution" are only ever applied to their opponents then a certain breed of intellectual thug is all too happy with "spirit of the law" arguments.

# posted by

Robert Link : 6:31 PM

@Mark Field,

Thanks for the reply on Coase. I think we're pretty much on the same page.

With respect to the current topic, then, the point is that Jack's invocation of Coase might be pleasing to some "Law as a Means to an End" types, but liberals and progressives might better prefer to build our arguments on something more like rock than Coase's sand.

# posted by

Robert Link : 6:37 PM

"Jack's invocation of Coase might be pleasing to some "Law as a Means to an End" types, but liberals and progressives might better prefer to build our arguments on something more like rock than Coase's sand."

Huh. Liberals and progressives have always struck me as very much "law as a means to an end" types; What's this "living Constitution" crap all about, except rationalizing that the 'law' is what you want it to be, not what the words on paper happen to say? I've met few liberals, and next to no progressives, who show any sign of valuing the rule of law independent of whether they win in any given instance.

# posted by

Brett : 7:05 AM

I've met few liberals, and next to no progressives, who show any sign of valuing the rule of law independent of whether they win in any given instance.

Part of that problem is your insistence on the inference of ambiguity as a diagnostic marker of a position that devalues the rule of law. Those of us who believe that meaning is mutable don't see any contradiction between adhering to the rule of law and recognizing that the framers' intent may not be the most important consideration when living in the 21st century.

# posted by

PMS_CC : 12:13 PM

That's right, I regard the pretense of ambiguity, where precious little exists, as evidence of disdain for the rule of law.

Are there parts of the Constitution which are ambiguous? Certainly. And there are parts which AREN'T. Can you tell the difference? I don't think so. In fact, I think you're determined not to.

"Those of us who believe that meaning is mutable don't see any contradiction between adhering to the rule of law and recognizing that the framers' intent may not be the most important consideration when living in the 21st century."

That's because you've crafted a definition of "the rule of law" which means you always win, that the law is never the law if it doesn't mean what you want.

And that's not the rule of law. Under the rule of law, sometimes the law says something you don't like, and sometimes you can't change it to something you do like, because the political support isn't there to do it. Sometimes you lose.

And if you believe in the rule of law, your response to that is, "Well, damn." and you go do something else, and make the best of the situation. It's not to find a judge who's willing to lie about what the law means.

# posted by

Brett : 12:32 PM

@Brett, @PMS_Chicago:

I will again quoteProfessor Volokh, from a source last seen here in comments on Andrew Koppleman's November 8 post, "Same-sex Marriage: The Good News from the 2008 Election. Same source, different passage:

---begin quoted---
Some people I’ve talked to suggest that liberals are “morally relativist” because they’re more likely to say that the end justifies the means...But is this view really more common among liberals than conservatives?...Some ends do justify some means, in the sense that some of our moral principles (don’t kill, don’t let people trespass on others’ property) operate differently depending on whether there’s a pressing social need to do something (fight a war, enforce the law). We can surely criticize others for their moral errors in deciding which ends justify which means. But I don’t think we can criticize liberals on the grounds that they are more likely to say the ends justify the means, or on the grounds that “the ends justify the means” is inherently an immoral position.
---end quoted---
(emphasis added)

# posted by

Robert Link : 12:37 PM

What's really funny/sad about Brett's latest rant is it is chapter-and-verse what liberals have been saying to the Bush administration since day one. Odd, eh?

# posted by

Robert Link : 12:39 PM

What's this "living Constitution" crap all about, except rationalizing that the 'law' is what you want it to be, not what the words on paper happen to say?

When you don't understand someone's position, it's probably best not to criticize it.

# posted by

Mark Field : 1:30 PM

@Mark,

It occurs to me that "Orginialists" may not all be as disingenuous as one might think at first blush. I recalled last night that there is at least one other group which loudly proclaims literal adherence to a given text, despite the logical impossibility of such a goal and despite the social reality that such groups in fact bow to authority for interpretations of what "literal adherence" means. It is not coinicidence, I suspsect, that these two groups overlap.

# posted by

Robert Link : 2:35 PM

PMS_Chicago said...

Those of us who believe that meaning is mutable don't see any contradiction between adhering to the rule of law and recognizing that the framers' intent may not be the most important consideration when living in the 21st century.

Don't you see the internal contradiction in that argument?

The rule of law depends upon the law having a fixed meaning applicable to all.

If the meaning of law is mutable and can be changed at a whim by lawyers in black robes, then we have exchanged the rule of law for the rule of men.

# posted by

Bart DePalma : 3:58 PM

The rule of law depends upon the law having a fixed meaning applicable to all.

Because nothing ever changes?

# posted by

Bartbuster : 4:03 PM

The People's representatives change laws.

# posted by

Bart DePalma : 4:04 PM

It occurs to me that "Orginialists" may not all be as disingenuous as one might think at first blush. I recalled last night that there is at least one other group which loudly proclaims literal adherence to a given text, despite the logical impossibility of such a goal and despite the social reality that such groups in fact bow to authority for interpretations of what "literal adherence" means. It is not coinicidence, I suspsect, that these two groups overlap.

I've long thought that Biblical literalism and textualism/originalism stem from the same general attitudes. There likely is a good deal of overlap there. It's not 100%, though, since people like Scalia can be textualists but not (presumably) Biblical literalists (since the Catholic Church rejects Biblical literalism).

# posted by

Mark Field : 4:11 PM

The People's representatives change laws.

# posted by Bart DePalma : 4:04 PM

Tyranny of the majority!

# posted by

Bartbuster : 4:16 PM

Overheard: "The rule of law depends upon the law having a fixed meaning applicable to all."

Reminds me of the old saying, "A whole Bible, not a Bible full of holes". But only a child or a person otherwise ignorant of even the most basic facts of language can or would hold such a naive notion about fixed meanings.

No, I don't believe for a second that proponents of such nonsense believe it literally. I do believe, however, that they are accustomed to mistaking the well of authority for the well of reason, and, failing to know the difference, fall for what they're told.

The great part about the trick, for the authority, is that in one and the same breath the authority reinforces their authority as the only legitimate source of interpretation and, by duping their sheep into thinking they are operating from "fixed meanings", provide the sheep with a rhetorical tool of no small value, as it takes a bit of deconstruction to show the error of such claims. Let's face it, deconstruction is too much work for most folks.

# posted by

Robert Link : 5:19 PM

Brett has it all figured out:

Are there parts of the Constitution which are ambiguous? Certainly. And there are parts which AREN'T. Can you tell the difference? I don't think so. In fact, I think you're determined not to.

Oh, you mean like saying that the Eleventh Amendment says precisely what it does not say, to wit, that it forbits suits against as state by citizens of that state without the state's consent?

I'm glad you agree that the Eleventh Amendment is unambiguous, and that those that try and read extra "meaning" into it are lib'ruls who have clearly let outcome get in the way of the plain letter of the law.

Cheers,

# posted by

Arne Langsetmo : 6:56 PM

Robert Link quoting Prof. Eugene Volokh:

But I don’t think we can criticize liberals on the grounds that they are more likely to say the ends justify the means.

Certainly not after Dubya's wanton disregard for the plain letter of the law, and the piling on of all the RWAs (including our SCCS/LSR "Bart" here) to justify such with some persiflage about "good intentions", "exigent circumstances", or "necessity"....

Those that excuse Dubya's many transgressions are the epitome of "the ends justify the means" reductio ad absurdum.

Cheers,

# posted by

Arne Langsetmo : 7:03 PM

"Bart" DeBugblatter:

The rule of law depends upon the law having a fixed meaning applicable to all.

You misspelled "determinate".

Cheers,

# posted by

Arne Langsetmo : 7:12 PM

The rule of law depends upon the law having a fixed meaning applicable to all.

Maybe it only depends on consensus. Changeable through time.

# posted by

mattski : 9:14 PM

Friendship is the hardest thing in the world to explain. It’s not something you learn in school. But if you haven’t learned the meaning of friendship, you really haven’t learned anything.
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# posted by

Unknown : 1:59 PM