The BOR proposed "contained aphorisms about popular sovereignty and natural rights" -- rights, including natural rights, not enumerated are still retained. Likewise, powers not delegated were retained by the states and the people. During debates, the 9/10As were deemed a protection of "popular sovereignty." The 10A was later called a sort of "aphorism" or rather a "truism."

I realize that the state analogues had much more flowery language (the 2A is a bit of an exception in that respect), but this seems akin to not calling Wonder Bread "bread" since it is bland and tasteless on some level.

Also, the BOR does include lots of the stuff Jefferson et. al. listed when they wanted a "BOR" (press freedom etc.).

"I do not like... the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the law of nations."

accord -- listing many of these things among the "bill of rights" -- http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss9.html

Was he some sort of outlier? Not really -- I found others who spoke in similar terms. The "Bill of Rights" of 1689 also included these general provisions. A "BOR" did not merely contain general aphorisms. It also contained the rights we now understand it to mean. I can understand if some thought "hey, the BOR is incomplete" like candy w/o sugar, but that would be a bit different.

http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss4.html

Anyway, since Jefferson felt a "BOR" was so important, did he later cry foul that one never was put in? Some Anti-Federalists wanted the amendments to be more restrictive. But, the general aphorisms wouldn't have really helped much in that respect. Still, did they cry out no "BOR" or "that's just a faux BOR," after multiple states expected one when they ratified the Constitution?

Since many of the offered "bills of rights" included just what was offered (and more, yes), I would think the right complaint was "this is 'half a loaf' " -- but then Jefferson felt that was better than none.

Half a "loaf" indeed. Anyway, I welcome the thesis and look forward to replies from the various suspects, who have written about this matter but have not generally argue in this fashion. Which doesn't make it wrong, mind you.
 

As to Jefferson, a 1792 letter:

"You will there see that my objection to the constitution was that it wanted a bill of rights securing freedom of religion, freedom of the press, freedom from standing armies, trial by jury, & a constant Habeas corpus act. Colo Hamilton’s was that it wanted a king and house of lords. The sense of America has approved my objection & added the bill of rights, not the king and lords."

http://oll.libertyfund.org/pages/jefferson-hamilton-debate-session-6?q=Bill+of+Rights#
 

P. 16: Federalist #84 is famous because of Hamilton’s argument that a bill of rights was dangerous because enumerating liberties implied that the new government had powers that were not enumerated.

It appears that the Anti-Federalists were prescient in this regard.

Gerard, does your research suggest that the Federalists and their heirs declined to call the first ten amendments a Bill of Rights because they did not want to make this implication?


 

"What Congress proposed, by contrast, came at the end of the Constitution and was free of rhetoric."

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

Considering the way this justifying rhetoric eventually got used in rationalizing denying the right in question, perhaps they were wise in most of the amendments to just state the right, and leave it at that.

Anyway, I really don't understand the significance you attribute to the difference between "a bill of rights" and "in the nature of a bill of rights"; Seems like a great deal of fuss about nothing.
 

Here's a recent comment of mine at Gerard's now archived post of 11/5/14:

***

For those who do not have time to read the Symposium papers in their entirety might focus on the panel discussion "Where the Rubber Meets the Road: A Dialogue" among several Arkansans, about 34 pages long, but a fast read. The outlier at this Symposium is Bob Ballinger, a lawyer/legislator in Arkansas. He is a real piece of work in this day and age but the other panelists are quite effective in response. The Dialogue points to the fact that the State of Arkansas has yet to fully accept Brown v. Bd. of Educ., despite significant financial costs to the State.

Bollinger lauds Sandy for "thinking-outside-the-box." But I imagine Sandy churning over the content of Bollinger's remarks. And I'm not quite sure that Sandy takes as a complement "thinking-outside-the-box," whatever that means.

Here's a sample of Bollinger (p.121):

"The fact of the matter is that I am a State Representative, and I have sworn an oath to defend both the United States and Arkansas Constitutions. For me, the Second Amendment in the Bill of Rights and article 2, section 5 of the Arkansas Constitution are profoundly unambiguous. And for the record, while this is not central to today's discussion, I must mention that I include in my personal calculus humankind's natural rights of self-defense, and the Declaration of Independence's reference to unalienable frights from our Creator. In my worldview, these rights are superior to any man-mad law, and I make no apologies for that. Natural rights were of paramount importance to the framers, and I will not pretend that they are inconsequential to me."

Bollinger fails to mention that the Declaration did not extend such "natural rights" to slaves. And I assume that the "Creator" is the God of Abraham, of judaism, christianity and muslims, and look at the worldview of histories among these major groups including in this day and age: "Praise the Lord and Pass the Ammunition ...."
# posted by Shag from Brookline : 9:12 AM

***

What Brett refers to as rhetoric had actual substantive meaning as the 2nd A tied into the several militia clauses of the 1787 Constitution. Scalia's (5-4) non-history in Heller changed long held views of the prefatory clause of the 2nd A. Brett ignores the importance to the new nation of the militia clauses. Over time, the militia clauses became less important, what with National Guards, standing armies,etc.
 

Joe,

I just want to say that I appreciate your criticisms and have been checking the references that you've included in your comments. My point is that a private letter here or there does not alter the fact that the public meaning of "bill of rights" did not include the first set of amendments for a long time after 1791.

As for the various Second Amendment comments, I do say in the paper that the Militia Clause is an exception to the "no rhetoric" view of the Bill of Rights. It's worthing noting, though, that almost nobody cared about the Second Amendment until well into the 20th century.
 

"Some Anti-Federalists wanted the amendments to be more restrictive. But, the general aphorisms wouldn't have really helped much in that respect. Still, did they cry out no "BOR" or "that's just a faux BOR," after multiple states expected one when they ratified the Constitution?"

Yes, at least some anti-Federalists made this complaint. A number of anti-Federalist amendments were offered. For example, on August 22 Congressman Tucker moved to require that the federal government requisition taxes from the states (as under the Articles of Confederation). In support of that amendment, Livermore said, "Unless something more effectual was done to improve the Constitution, he knew his constituents would be dissatisfied. As to the amendments already agreed to, they would not value them more than a pinch of snuff; they went to secure rights never in danger."
 

Thanks, Prof. Magliocca, for making your essay freely available.

I downloaded and read it. During my reading I checked every footnote citation in the first 20 or so pages to make sure your claims are justified, and as best as my limited knowledge allows, that seems to be the case.

I like reading about history, especially important history such as how the BOR has been seen.

Your essay has also given me food for thought about incorporation of some of the BOR against the states.

Best Regards,

jbarntt
 

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In checking out Gerard's SSRN link I was turned off by the 80 pages of text. But I did download the draft article perhaps hoping for a table of contents to spot read it. There was no table but I quickly realized that the large type size (including for footnotes) and double or triple spacing meant that this was a fairly quick read, so I printed it out. My eyesight issues were not a problem with this article.

It was indeed a quick and easy read (although I did not check out all the footnotes). I shall have some comments to make but I should point out that as one born in 1930, Gerard's discussion of the role of FDR on The Bill of Rights was quite impressive for me. I'm not a historian but perhaps we may get commentary on Gerard's thesis from historians testing his thesis.

For me, the thesis points out significant problems with textualism/originalism as it relates to the first 10 Amendments. I'll have more to say on this in later comments, assuming the spam is controlled.

One bit of housekeeping. I am not an editor/proof reader. But my eyesight issues require me to focus with care on my readings. At page 73 of the draft article, 3rd line down from the top, between "judicial and" a word (or two) may be missing, such as "activism."

By the way, "Spam I Can" while perhaps protected by the 1st A is just noise. Is this an accomplishment? Or maybe there's substance in the translation?
 

This comment has been removed by the author.
 

Thank you Shag. I will take a look at the draft at the point that you mentioned.
 

I thoroughly enjoyed reading Gerard's draft article, a romp through the history of America. So many of us today (thanks to FDR, according to Gerard) do indeed "recognize" the original 10 Amendments as "The Bill of Rights." That's the history we were taught, without of course the benefit of the details Gerard provided.

William Shakespeare's Romeo and Juliet (Act 2, scene 2) comes to mind: "What's in a name? That which we call a rose/By any other name would smell as sweet."

But "The Bill of Rights" seems to have more panache that the first 10 - or 8 - Amendments, or describing the latter as in the nature of a bill of rights. However, this romp does seem to stand originalism on its head, at least historically.

The Articles of Confederation provided protection to slavery and slaveowners. However, not enough. So a bunch of dudes, mostly slaveowners (the 0.1% of 1787?) got together in a closed door convention and came up with the Constitution, which made provision for even greater protection for slavery and slaveowners. (Historian Paul Finkelman - and others - have laid out such protections without the use in the Constitution of the words "slave" or "slavery." While the first 10 Amendments may have been instigated by the Anti-Federalists, these Amendments (especially the 5th) further protected slavery and slaveowners. (Keep in mind also that the earlier Declaration of Independence signed by the Founders had had deleted from the original draft a critique of King George for his role in slavery in the Colonies. Of course many of these Founders were slaveowners.)

So is Gerard's thesis anything more - or less - than constitutional whimsy? Keep in mind that the rose has thorns, just as did the Articles of Confederation, the Constitution and the first 10 -or 8 - Amendments in providing protection to slavery and slaveowners.

So today, some 263 years after the first 10 amendments were ratified in 1791, let's keep in mind the history of slavery, the Civil War, the Civil War Amendments, Jim Crow, Plessy v. Ferguson, Brown v. Bd. of Educ., the Civil Rights Movement, recent decisions of the Court and recent events on the streets, of what rights spelled out in "The Bill of Rights" (as we currently think of them) were denied to slaves, to African-Americans even after the Civil War Amendments with jim Crow laws, continuing even to the present day as demonstrated by recent events on the ground. "What's in a name?" That rose hasn't been sweet for everybody, what with its thorns.
 

OOPS! The reference in the last paragraph of my preceding comment - 263 years - should be corrected to 223 years. Maybe in 40 years all of this may turn out to be a Bob Newhart dream.
 

Speaking of history, I just finished reading a short (4 pages) article by Evan C. Zoldan "Primary Sources and Ambiguity in Legal History" that I found quite interesting. A link is available at the Originalism Blog. This isn't "law office" history.
 

I wonder if Spam I Can's interpretations of what I presume are my comments are accurate.
 

I appreciate it professor, but repeatedly, I -- without having access to great databases -- have found enough references -- the TJ one to me is really damning -- to find your thesis questionable.

Handwaving about "private letters" is curious to me as well since such letters repeatedly are used to help flesh out how they understood things. I really have to be shown why these remarks were outliers and not merely one of many expressions of what many thought.

And, I find various problems with the analysis, so much that I think of new ones after posting. Take your statement that Madison called only the general protections he would have put at the head of the Constitution a "BOR."

Yes. His plan, however, was to intermix various protections into the body of the text. They would not be a "bill" of rights then. The only "list" or "bill" would be the list added to the head of the document.

As to Mark Field's reply, yes, some Anti-Federalists wanted more restrictive amendments since they feared federal power. But, my particular point is if -- since the BOR didn't meet the two rules set forth -- that in itself was the problem. Going by that, even if the BOR in amendments listed at the back, had additional limits to commerce, tax power or the like, it still wouldn't really be a "bill of right" since it wouldn't be at the front or "contain aphorisms" of the sort cited.

There is more spam here than in the Monty Python song.


 

This comment has been removed by the author.
 

'd add that I don't necessarily think you are totally wrong.

Still, I think the term wasn't applied here largely because (1) by the time they passed, the first wave of major public debate over first principles was over and practical government took place (2) the federal government had such a limited reach.

One is hard pressed to find many cases -- which these days seem common duties of the courts -- raising BOR claims. You had the Alien and Sedition controversy (1A/10A), a few people raising religious claims and then the slave petition/mail controversy.

Seeing the BOR as a united whole just didn't come to play here. The first time it might have truly did was in the antislavery movement -- multiple amendments were involved there (speech, petition, due process ... and 10A claims against states helping "the slave power").

This bled into the Reconstruction & John Bingham etc. And, as you note, the problem of oversea territories also raised the issue as did the New Deal for various reasons. So, there is an interesting development here. But, there just are too many references for me to accept the idea that "bill of rights" was not understood to apply in 1791.

Yet again, Jefferson and lots of others asked for a "bill of rights" with the same stuff that is found in the first 10A. They might have wanted more too. But, "added the bill of rights" was not just something found in a spare letter.

Finally, as to state constitutions, new state constitutions would be starting from scratch (so a bill of rights could be on top, not amended to the back) and since they have broad police power, as compared to delegated power, certain basic aphorisms would be more important.
 

Joe makes cogent points. But even if, as Joe suggests " ... the idea that 'bill of rights' was [deletion] understood to apply in 1791."

has to be considered with the background of slavery and the power of the slaveowners in the national government via Founders/Framers/Ratifiers in enacting the 1787 Constitution and the first 10 Amendments (ratified 1791). Keep in mind that until Lincoln was elected in 1860, only John Adams and his son John Quincy Adams, each for one term, were the only Presidents taking strong stands against slavery, especially the son.

In any event, as I have pointed out, perhaps too often, the "rights" offered by the first 10 Amendments were not granted to a significant portion of America's population. And even with the Civil War Amendments, such "rights' then established were limited by Jim Crow for many, too many, decades.

"What's in a name?" may be in the mind of the beholder. And consider that after FDR's popularization of "The Bill of Rights" (Gerard's thesis), it was not until the Warren Court beginning in 1954 that individual rights started to get more recognition.

 

Off topic:

By the Bybee [expletives deleted], the Senate Committee Torture Summary brought to mind Myra MacPherson's "All Governments Lie! The Life and Times of Rebel Journalist I. F. Stone," Scribner, 2006. A companion reader, "The Best of I F. Stone" edited by Karl Weber provides Stone's writings over the years, including in his newsletter. Sone used government documents to identify the lies. Nowadays too much is classified. And let's not forget the Church Committee back when. And let's not forget Iran/Contra. Who will be held accountable?
 

Upon reflection, was my last comment really that much "off topic"? Rights were involved and perhaps rights under the first 10 Amendments technically were not involved with the wrongs set forth in the Senate Committee Torture Summary. But consider treaties and other US laws against torture (and the like) and the Supremacy Clause of the Constitution.

"What's in a name?" EIT = torture, and neither is a rose.
 

I'm really looking forward to Bart explaining how "rectal feeding" was part of his SERE training.
 

Brown v. Mississippi (1936) came to mind here:

The due process clause requires "that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." Hebert v. Louisiana, 272 U.S. 312, 316. It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.

The case held that the BOR didn't apply to the states, but there still was a baseline of due process required. One thing that did not meet it was to quote the ruling "torture."

The opinion quoted a dissent from the state court that also bluntly spoke of "torturers" and had this tidbit:

When the confessions had been obtained in the exact form and contents as desired by the mob, they left with the parting admonition and warning that, if the defendants changed their story at any time in any respect from that last stated, the perpetrators of the outrage would administer the same or equally effective treatment.

The likes of John McCain feel this sort of thing makes torture and related illegal/inhumane/uncivilized techniques not an ideal way to obtain information.
 

Once again Joe comes up with a Supreme Court decision that's relevant. Query: At the time of this decision, what if any of the first 10 Amendments had been incorporated via the 14th A? I'm going to lunch and hope someone has the answer by late afternoon (long lunch).
 

This comment has been removed by the author.
 

Double checking, at that time, a few provisions were accepted as being incorporated, at least in dicta.

The Takings Clause is cited as the first; this was back in the 1890s.

Freedom of speech, press and maybe assembly (that might have came a bit later).

Meyer v. Nebraska protected free exercise w/o incorporation as such; Hamilton v. Regents appears to have assumed it was. Query if cases like Meyer implicitly incorporated the 9A by protecting unenumerated rights.

Powell v. Alabama (Scottsboro Boys) protected a right to counsel in capital cases. Betts v. Brady showed the right was not applied to all felonies (that is until the famous Gideon case).
 

As I understand it, even today not all of the first 8 Amendments have been incorporated via the 14th A. At the time of FDR's reference to "The Bill of Rights" only a few of them were incorporated. And consider that it was not until Heller (5-4) in 2008 in conjunction with McDonald v. City of Chicago (2010) (also 5-4) that the 2nd A was incorporated by the latter. Originalism hasn't worked that quickly or that well to recognize the full impact of the 14th A. I assume that the Court's role has been a tad political in this regard over the years. Perhaps we need a better history of the 14th A and incorporation. Just as we get more distant from the 1787 Constitution and the 1791 ratified first ten Amendments "scholars" discover more evidence of original meaning, Scholars seem to discover more of its original meaning. These discoveries, especially in the case of Heller/McDonald, were not "smoking guns."

Thanks Joe.

By the Bybee [expletives deleted}, lunch was great.
 

Juan Cole had this good reminder about the BOR and torture:

http://www.juancole.com/2014/12/founding-foundational-constitution.html
 

Once again, Joe, thanks. I check Cole at least once a day and I missed this one (but I didn't miss his "satire" of Dick Cheney).

With respect to Gerard's thesis, he might take a look at your Cole link for the debate discussion between Mr. Nicholas and George Mason on torture. Nicholas referred to "our declaration of rights" whereas Mason in his response twice referred to "the bill of rights," according to the text provided by Cole. I don't know the exact source of this debate to check if the text is correct. Maybe I can check tomorrow.

Let's hear from originalists on Cole's commentary about the Founding Fathers on torture.
 

Fareed Zakaria's WaPo column today "Why releasing the CIA torture report will make America stronger" makes a lot of good points.
 

And take a peek at Eric Posner's blog post "Why Obama Won't Prosecute Those Responsible For Torture" explained in his Slate column for which he provides a link. In the post, Posner references the impact of "The DetaineeTreatment Act of 2005" on any such prosecutions. Query whether that Act overrides the points made by Cole on torture under certain of the first 10 Amendments?
 

Eric Posner's strong executive power beliefs does not lead me to take his comments totally at face value.

He does voice some of the realistic reasons why prosecution isn't likely. If prosecuting a single police officer is so hard, you know what you are up against.

But, "hopeless cases" are self-fulfilling prophecies when the line is that it is just "not done" to prosecute this sort of thing.

Also, as Marty Lederman and Barron wrote in a long article, there is no total "unwritten norm" that Congress "cannot criminalize certain behavior that the president authorizes on national-security grounds." Our "system works" by putting limits. Political means aren't the only checks.

Finally, it underlines why I can't take Posner totally at face value if he says the "best argument" is that "criminalizing politics" is wrong. TORTURE shouldn't be seen as mere "politics."

But, Posner voices the mindset of a lot of people. Torture horrified people for hundreds of years. It is quite firmly "worse than death" -- death even of civilians is allowed in wartime. Torture is not. Posner is helping the segment of the population that wants to degrade torture.

This is a key reason why the report is important even if it doesn't bring prosecutions. It helps fight this mindset. That torture is like some tax policy -- its "politics" that one administration might support, another might not.
 

http://ericposner.com/why-obama-wont-prosecute-those-responsible-for-torture/

As to the Detainee Treatment Act of 2005, experts can debate it, but think it wouldn't necessarily serve an out for all involved, esp.:

http://justsecurity.org/18221/knew-illegal/#more-18221

At some point, I also wonder if a too wide exception here would violate international law restraints. However, I guess only us peons don't have an "ignorance of the law" excuse.

 

I share many of Joe's concerns. But politics have been powerful in the past in not pushing for accountability in serious breaches by government officials as pointed out by Posner in his Slate article and by Zakaria in his WaPo column. We have had political dysfunction for mcu too long. Even greater dysfunction might result if prosecutions were pushed, perhaps providing full employment for powers in the legal profession defending defendants. This is not comparable to Watergate in the sense of what ended up as bipartisan in charging Nixon's cohorts and eventually getting Nixon to resign. To get a groundswell of public opinion as eventually emerged with Watergate, perhaps the full Senate Committee report, including documents it is based upon, in the manner of the Pentagon Papers by Ellsberg and/or NSA revelations by Snowden, might be released by leaks. But the potential international turmoil is was scares me mostly.

I haven't read the full Summary, hoping to buy a copy at my local bookstore. I've been relying upon media reports on both sides. So far I find myself accepting the substance of the Summary as those challenging it focus on the impact on national security by the disclosure, well realizing the role of politics discussed here and by Posner and Zakaria.

I wonder about the documentation whereby the CIA outsourced much of the matter to so-called experts at a cost of $81 million. That documentation, subjected to audit, would tell us a lot. Alas, I don't think the FOIA would be available as surely national security would be cited - and the Court most likely would agree.

Pushing for accountability as in physics by taking actions surely would result in equal and opposite reactions, ad infinitum.

Also, I'm thinking of the potential role of Leon Panetta in the opposition, keeping in mind his recent book critical of Obama's presidential style. As former head of the CIA he may have some fingerprints he wold not want disclosed.

Ignorance of the law is no excuse, we learned in law school in criminal law courses. But there are exceptions, such as relying upon legal advice from high level attorneys and with banks following the Bush/Cheney Great Recession of "too big to fail" - or jail. And take JPMorgan's Jamie Dimon's role in the lame duck spending bill on derivatives. Arousing voters to prevent being overwhelmed by the PR efforts regarding the Torture Summary requires a "smoking gun." Is there an Ellsberg or a Snowden ready to blow the whistle. "Oh you doll, you great big beautiful doll ...."

Joe, I'l like to have a drink with you to discuss all this in more detail but my fear is that I would get sloshed. It is important to remain sober while this sobering matter can be resolved, at least politically so that government can function properly; anarchy may otherwise be the alternative.
 

Perhaps, some Madeira wine like John Marshall, in honor of the ancient wrongs addressed. Appreciate the further discussion.

 

Justice Scalia has spoken: The Constitution does not prohibit torture. So Juan Cole must be wrong. But I wonder if Justice Thomas, who complained about a "high-tech lynching" during confirmation proceedings, agrees. Of course in Heller (5-4) Scalia used "tortured" history. Now we've got to wait till Monday night for Stewart and/or Colbert's views. Perhaps prior to then, other Justices might express their views. It should be clearer that the unelected Court engages in a tad of politics. And don't forget that Scalia is a hunting mate of Dick Cheney. It's time once again for a revisit to DeNovo for my comment on Justice Scalia and Dick Cheney:

"JE NE RECUSE!"

In that duck blind
Lady Justice unveils
Her traditional blindfold
For these bonding males:
Scalia and Cheney,
Shotguns at attack,
Taking aim at Justice,
"QUACK, QUACK, QUACK!"

Posted [originally] by: Shag from Brookline at March 23, 2004 07:28 AM"
 

As to alternative means, I recall the debate some years back here regarding Yoo's law school even investigating him.

http://balkin.blogspot.com/2008/04/response-to-dean-edley.html

http://www.volokh.com/posts/1208192617.shtml
 

Query (purely rhetorical): Did the Cheney/Bush outsourcing to Halliburton of military matters in Iraq precede or follow the CIA's outsourcing to two psychologists on torture? With Halliburton, it was the revolving door of former Halliburton head Cheney after becoming VP. I understand the psychologists had worked for the CIA or the Pentagon but had no experience in interrogation. Add to this the revolving door of former members of Congress and lobbyists at humongous compensation increases and that's the military-industrial complex Ike warned us of with his farewell message in 1961. These revolving doors are dizzying, but lucrative, at the expense of taxpayers of course.

I do plan to enter this Blog's archives that Joe links to, to see if I have been consistent.
 

Justice Scalia in 2000 ws one of the conservative five in Bush v. Gore that effectively "elected" George W. Bush President (and Dick Cheney VP). (Imagine, the unelected elected the President!) The Senate Committee Torture Report reveals the role of Bush/Cheney and their administration in torture. So Scalia has a personal stake in his recent statement that torture is not violative of the Constitution. Can someone put this in syllogism form?

I would assume that if the matter of this report came before the Court Scalia might have to recuse himself. More likely he would go on another hunting trip with Dick Cheney, the two together establishing their own political Duck Dy-nasty [sick!].
 

I entered the archives of this Blog per Joe's link and found the discussion (in 2008) most interesting, including my own rather mild comments - no Yoo-Hoo references in that thread.

By the Bybee [expletives deleted], he came up in the Senate Committee Report. And he was appointed to the federal judiciary by, let's see, I think it was George W. Bush, who was also mentioned in the Report. This brings to mind what a Probate Court judge in MA observed in open court in my early years of practice: "All a judge is is a lawyer who knew a Governor." I'm sure Bush knew of and liked Bybee's role in the DOJ on torture.
 

Spam I Can is hilarious, once you know what s/he's saying. By the Bybee [expletives deleted], it ain't linguini lingua.

But back on topic, Steven Bender has posted on SSRN the Contents page and Introduction to his book "Mea Culpa: Lessons on Law and Regret from U.S. History." (A link is available at Larry Solum's Legal theory Blog.)

This book is about rights, the denial of rights to certain groups. The Introduction makes references to chapters in the Book and chapter titles provide the reader, or some readers, some idea of what a chapter addresses. For those who may not read the book, please read the short 12 pages presented. While the book's publication preceded the recent release of the Senate Committee Torture Report, Chapter 11 (no, not Bankruptcy, but perhaps pretty close) "International Dehumanization" may cover some of the issues in the Report, although the author makes it clear that his book primarily focuses on domestic matters - which makes this relevant to Gerard's post.
 

The Legal History Blog's Sunday Book Roundup feature provides links to a number of reviews heavy on the Constitution in a recent issue of Law and Politics Book Review. I've downloaded a few and have my reading lined up for later today.
 

Let me continue the Shag from Brookline version of the Chinese Water Torture with an additional comment on the Senate Committee Torture Report.

In the past I have commented on the National Security Strategy issued by George W. Bush in 2002 (Sept. or Oct.) which basically states that America is #1 militarily, economically and politically and will do what it has to to maintain these #1 positions. The Strategy also provides for pre-emptive actions. But the Strategy does not specifically reference torture. With the benefit of hindsight, perhaps torture can be found between the lines of the Strategy.
 

We've had extensive discussions over the years at this Blog on Article V, Amendment Process, of the Constitution. The book review at the Legal History Blog of Damon Patrick Guerra's "Perfecting the Constitution: The Case for the Article V Amendment Process" should be of interest to commenters here on the subject. No specific reference is made in the review to originalism or to Sandy; but reference is made to a Mark Tushnet book and Justice Stevens' book "Six Amendments: How and Why We Should Change the Constitution." (In readable print form, the review runs a short 2.5 pages.)
 

I just finished reading a review of John R. Vile's "Re-Framers: 170 Eccentric, Visionary, and Patriotic Proposals to Rewrite the U.S. Constitution" to which a link is provided at the Legal History Blog. Sandy is briefly mentioned along with several others who have in recent years indicated the need for amendments. This review (printer friendly pages 1 line) adds to the review in my preceding Comment. The author's use of "Eccentric" in the title is intriguing. And "170" is a big number.

Alas, I have the time to read a fair amount of reviews but not the books because of eyesight limitations.
 

WOW! Spam I Can now insists that I read a review of his/her new book on Genghis Khan (aka Gangus Bangus, as he was known on the streets). That's Chutzpah in any language.

But I did read a review of Robert C. Wigton's "The Parties in Court: American Political Parties Under the Constitution," for which there is a link at the Legal History Blog.

We all know that the Founders/Framers abhorred parties (see Federalist papers). But parties came along rather quickly after the 1787 Constitution. While originalists seem to have no problem determining what the Founders/Framers/Ratifiers had in mind back then, I wonder what America would be like today if we did not have political parties. Should we continue to "party on"? The review is 4 pages plus an additional page of sources. This review has relevance to Gerard's post since political parties involve 1st A rights

[Note: in my comment prior to Spam I Can's demand, I left out that the review there was only 2 pages long in addition to the one line on the 3rd page.]
 

Torture set forth in the Senate Committee Report came about in the course of addressing the conflicts following the events of 9/11/01. There have been posts at this Blog about how wartime results in challenges to rights.

Back in my law school days (early 1950s), one of my legal heroes was Oliver Wendell Holmes, Jr. His writings on the law, his services as a Justice of the Supreme Judicial Court of Massachusetts and of the U.S. Supreme Court frequently came up in many courses. As a young man, I did not have the problems with his Buck v. Bell decision that I since developed. Everybody should have rights to be protected with due process. The process for Buck was not fair. This case was discussed in my ConLaw class back in the Fall of 1952, about which I have earlier commented.

I also vaguely recall a brief discussion in class of Holmes' decision in Schenck v. U.S., with Holmes' famous statement that the 1st A does not protect falsely yelling "fire" in a crowded theatre. [Note: here's a portion of Holmes' rather short decision:

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."]

This decision seemed to make sense back then to me as America was in wartime. But in later years, the facts in the case did not involve a theatre, a panic or any claim of "fire." Rather, the distribution by the defendant on public streets of pamphlets was at issue, protesting the draft as violative of the 13th A and America's getting involved in the Great War. A few years later, in a somewhat similar case, Holmes had a change of heart on the 1st A (but did not specifically retract his decision in Schenck). I don't know if in ConLaw courses presently Schenck is taught and how it is taught. But by now, it seems clear that in wartime atmospheres rights are too frequently denied, to wit the Torture Report.

Here's the cite for Schenck: 249 U.S. 47 (1919).

Holmes continues as a legal hero for me as in his long life - or even in a short life - one cannot always expect perfection.

Perhaps Mary Dudziak may provide a post at this Blog on the Torture Report.
 

Last year, I read "The Great Dissent" by Thomas Healy about the Schneck, Holmes, and how he changed (sic) his views on free speech.

http://www.callawyer.com/Clstory.cfm?eid=930643&wteid=930643_The_Great_Dissent

Zechariah Chafee played an important part according to the book and he continued his support of free speech (and other freedoms) into the 1950s. One thing noted was that Chafee in effect used the original "clear and present danger" standard and ran with it. He might have stretched things a tad. That is, in its original form, it probably best was seen as being not too speech friendly. Holmes after all was known to give broad support to police power. But, you work with what you have.

[A lesson in "originalism"?]

I recall after the Iraq War started anew in 2003 being told that it was not right to criticize the nation in wartime. I just viewed "Over Here: WWI and the Fight for the American Mind," an exhibit at a local library. It even had audio of patriotic songs and President Wilson. Among the displays was a book by Jane Addams on pacifist. It notes the movement is appropriate even during wartime. It always seemed to me silly to think you couldn't criticize strongly during wartime. Seems akin to not giving medicine while the person is sick.
 

Spam I Can II inspires me to go off topic.

I visit Eric Posner's blog daily. Comments are not provided for. But if they were, based upon an area of his expertise, I would ask him for a costs/benefits review in the recent budget granting Wall St. certain derivatives benefits with the benefit of FDIC at the potential expense of taxpayers. We've got data on the S & L disaster of a few years back and on the Bush/Cheney 2007-8 Great Recession. If Eric chooses not to do so, assuming he checks out comments at this Blog, perhaps someone else may take a crack at it. Query: Will the CBO be asked by Congress to evaluate the impact of this Wall St. give-a-way?

My read for this morning will be Kurt Lash's review (18 pages) on the recent book by John McGinnis and Michael Rappaport "Originalism and the Good Constitution." Larry solum's Legal Theory Blog provides a link to SSRN with a "highly Recommended." Query: Will we find out about the "Bad Constitution"?
 

Back on topic, Gerard has a recent post at Concurring Opinions titled "Happy Bill of Rights Day!" consisting of a quote of Justice Hugo Black. So far there are no comments at CO on this post. [Note: I do check out CO daily but have had difficulty commenting there due to its non-robot check in procedure. Also, for those of us with eyesight problems, it can be difficult wading through faint blue print and wide lines of text.]

This quote of Black should be judged by putting it on one side a a legal seesaw and some other quotes/actions by him over his career in politics and on the Court (is there a difference?) to determine whether this quote is up in the air.

What's clear is that when rights are enjoyed by all,"happy Days are here again," any day.
 

On C-SPAN yesterday, perhaps in honor of BOR Day, an author of a book on John Marshall was on. I read Jean Edward Smith's very good bio some years back as well as Edward Corwin's (free online) fairly good one.

I'm also reading an interesting defense of Marshall and Marbury v. Madison:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=729144

It's long so for those like Shag who read a lot of materials of this nature might skip it for other examinations of the subject but it does thank Sandy Levinson and Michael Dorf (Dorf on Law) among others for their assistance.

It notes early on as well that various early court opinions were not reported. I can relate -- I used to have to travel to a major library to read even USSC opinions. Now, I can download law articles at the drop of a hat.

 

My comment on Kurt Lash's review of a new book on originalism is not fully "off-topic" as there are several references in the review to the bill of rights in Lash's historical review of interpretation of the 1787 Constitution questioning whether back then originalism concepts were part of what the Framers/Ratifiers had in mind.

The review is a great read (only 18 pages) and I may have comments on specific portions later. But for now, let me point to the title of this review:

"Originalism All The Way Down?"

Here's Lash's closing line:

"It is history itself that tells us that originalism cannot go all the way down."

I tried some Googling on the meaning of "all the way down" and learned of Stephen Hawkings' "Turtles all the way down" and a song (or songs?) "All the Way Down," neither of which I have familiarity with. There was also a reference on Google to "Flag all the way down."

I used to be "hep" way, way back but have not had a "hip" transplant to understand current idioms, whatever. Perhaps this is sort of like the "Bad Country?" on another thread at this Blog where Joe provided the lyrics of a song by that name that I was not familiar with. So here's a contest: The winner gets one week fully paid in Philadelphia and the runner up two weeks in Philly fully paid.
 

Spam I Can I has saddled up again, but I haven't worked through interpretation as I have been focussing on Kurt Lash's recent review of the McGinnis and Rappaport book on originalism, which of course deals with interpretation.

But before getting into Lash's review in a later comment, those who may have (or even those who have not) read the review of Robert C. Wigton's "The Parties in Court: American Political Parties Under the Constitution," for which there is a link at the Legal History Blog, might be interested in Thomas Edsall's column in today's NYTimes "The Rise of 'Welfare Chauvinisiam'" dealing with political parties today, both in America and in Europe, with comparatives. Before Sandy became a "Guest" at this Blog, he might have posted on this column as it focuses upon political dysfunction that may result from the roles of political parties. Some may react to Edsall's column by humming "The Party's Over, It's Time to Call it a Day ...." But I'm more optimistic.
 

The Colbert Report ends this week. It's been a great ride. Years ago I had read Norman Cousins's 1979 book "Anatomy of an Illness as Perceived by the Patient: Reflections on Healing" relying, inter alia, on humor as palliative care. At age 84, both longer in the tooth and shorter in the step, I sometimes think of when my end comes, even though I don't yet have a debilitating disease (knock on formica). I would use the Norman Cousins model and while the Marx Bros. would be included, I would desire to focus on the 9 years of The Colbert Report, seriatim. If successful,that would result in a lot of healing, following which there would be 9 years of Seinfeld, of course.

While I shall miss Stephen Colbert after the Report ends, I am happy for him and look forward to his taking over from David Letterman next September (I should live so long!). The NYTimes has an interesting column today on the winding down of the Report. Long live Jon Stewart!
 

"The Founding Foodies: How Washington, Jefferson, and Franklin Revolutionized American Cuisine" by Dave DeWitt is a pretty good palate cleanser. Have it with some Madeira Wine.


 

Thomas Edsall's column includes a reference to UKIP. For more details on UKIP, take a peek at Matthew d'Ancona's NYTimes article today "UKIP Is the Real Scandal in British Politics." Can we expect a Monty Python follow up or reaction to UKIP on "Ask the Prime Minister"?
 

Penny Pleasance reviews "The Founding Foodies: ...." at:

http://www.nyjournalofbooks.com/book-review/founding-foodies-how-washington

I don't know if Penny is an attorney or a historian but she applies originalism to test the title given to these Founders. I wonder if Sally Hemmings while in France avec Jefferson learned of the Pousse Cafe (that I learned of at Locke Ober's at Winter Place in Boston), neither to be shaken nor stirred, slowly sipped layer by layer. I would prefer that to Madeira.
 

شركة تنظيف منازل بالرياض

شركة تنظيف خزانات بالرياض

شركة رش مبيدات بالرياض

شركة مكافحة حشرات بالرياض

شركة مكافحة النمل الابيض بالرياض

شركة كشف تسربات المياه بالرياض

شركة عزل خزانات بالرياض

شركة تنظيف بالرياض
 

On Concurring Opinions, the OP links this:

http://www.wellesnet.com/?page_id=4805

Among a range of audio, there is a BOR celebration dated December 15, 1941, narrated by James Stewart.

If that isn't appropriate enough for Christmas season, there is also a link to a Orson Welles "Christmas Carol" broadcast.
 

شركة تنظيف منازل بالرياض

شركة تنظيف خزانات بالرياض

شركة رش مبيدات بالرياض

شركة مكافحة حشرات بالرياض

شركة مكافحة النمل الابيض بالرياض

شركة كشف تسربات المياه بالرياض

شركة عزل خزانات بالرياض

شركة تنظيف بالرياض
 

I've read several of Kurt Lash's articles on the 14th A but not his fairly recent book. My readings suggest strongly that Lash does not engage in "law office" history. Rather he delves quite deeply into history. This is also demonstrated in Lash's review of the recent McGinnis and Rappaport book on originalism. Those who plan to read this review should not ignore the footnotes. Lash doesn't say that originalism is bunkum but he points to disagreements among the Framers as to how the Constitution of 1787 should be interpreted. See the discussion of Hamilton's views on broad interpretation and those of Edmund Randolph for strict interpretation; also, Madison agreed with Randolph.

And consider how Lash views the bill or rights' role in determining that there was no real consensus how the 1787 Constitution should be interpreted back in 1787. (Gerard might take a peek at this argument.)

And note footnote "6. For recent examples of judicial application of originalist theory, see both the majority and dissenting opinions in McDonald v. Chicago, 561 U.S.3020 (3010).

Lash's review is quite concise with lots of history (not the "law office" kind) to back him up. This conciseness makes it difficult to quote snippets here and there.

If the title of this review had been "LASH ON ORIGINALISM," McGinnis and Rappaport might claim torture.

McGinnis and Rappaport offer a new theory of originalism they call "original methods originalism." That's a new theory we have to deal with as originalism evolves (devolves?).

There are references to Jack Balkin and Randy Barnett's forms of constructive originalism. Perhaps at some point we might expect commentary by Jack on the McGinnis and Rappaport book.
 

I've made further efforts to understand Lash's "all the way down," but I'm whipped. I'm off to lunch and will be back late afternoon, hoping that a good samaritan Balkinization commenter might have some thoughts on this.
 

The article applies the metaphor "all the way down" to the felt need to apply the interpretative rules of the Founders along with original meaning of text -- it's "originalism all the way down."

He argues however that there wasn't one interpretative method or some such -- didn't read the whole thing. The interpretation I take it developed over time. It did not "go down" to the Founders.

I'm familiar with the idiom as applied to the turtles -- so one says, the world is on the back of a turtle (you can imagine some similar myth about existence). Fine. What does the final turtle stand on? No, son. It's turtles all the way down.

Here, there is an origin -- the Founders. So, it isn't quite used the same way.

 

Perhaps turtles all the way down suggests that originalism is a shell game as all of the turtles (Framers) were not in agreement back in 1787 on an interpretive theory for the Constitution.

I see that Jack Balkin has a post on originalism. I'll review it in the morning. I hope that the post includes a discussion of McGinnis and Rappaport's new book on originalism.

Thanks, Joe. Maybe we might hear from Kurt Lash on his use of the idiom as he does not reference turtles, my favorite confection at Fanny Farmer's of yore in Boston; when I ate those turtles they did go all the way down.
 

I read Jack Balkin's post, noting that he references and discusses the McGinnis and Rappaport recent book on originalism. But Jack makes no reference to Kurt Lash's review of that book. Rather, Jack's approach is that of a thin originalist ("Living Originalism") whereas Lash uses history to challenge the McGinnis and Rappaport thesis that there was an agreed upon (among the Framers) means of interpretation of the 1787 Constitution. So I don't see a real conflict between Jack's thin originalism approach and Lash's heavily historical approach.

But let's get back to Lash's "all the way down." Even though Lash's use is au courant (and not ancient text), let's apply some of the stages of the evolution (devolution?) of originalism. First, what was Lash's intent in using this idiom? Since Lash is still with us, only he can answer definitively. This is much simpler, as Paul Brest pointed out years ago, than when the intent of numerous persons may be involved. Second, what IS the public understanding of this idiom today? Googling fails to come up with a definitive understanding of something au courant. Third, what is the public meaning of the idiom? Same as under second via Googling. I won't go into more recent variations in the evolution (devolution?) of originalism at this time as I've got more reading to do with more recent articles/comments noted by Jack in his post. But I would like to hear directly from Lash as to his intent in using this idiom. I assure him that it will not detract from the brilliance of his review. (In an earlier comment I noted that Larry Solum at his Legal Theory Blog gave Lash' review his "Highly Recommended." But I left our Solum's "Download it while it's hot!", which it is.) I used the idiom in a recent comment in connection with imbibing Fanny Farmer turtles, half pecans covered with caramel and then chocolate: delicious all the way down, like a good glass of port. I don't think that's what Lash meant. Years from now, as originalism continues to evolve (devolve?), ConLaw and other scholars might look back on Lash's review with varying interpretations/constructions of his use of "all the way down." At least we should get Lash's intent, soon, in his use of this idiom to avoid such future potential disagreements; he owes it to history.
 

All is well when "We are the Colbert World" can come together to sing a song. Craig Ferguson's final show will be so anticlimactic.
 

"We'll Meet Again ... " brought tears to my eye [the good one] both of sadness and joy. While humor helps us survive, alas, humor can trigger reactions such as with "The Interview" by those who feel insulted by it, especially those in nations that do not ascribe to the concepts of the speech and press clauses of our 1st A. Maybe what we need is a parody of "The Interview" depicting the hackers' threats, sort of like "The Producers." Where's Mel Brooks when we need him?
 

To continue on the originalism discussion (which is relevant to the bill of rights substantively), I'm currently reading Edward A. Purcell, Jr.'s "Paradoxes of Court-Centered Legal History: Some Values of Historical Understanding for a Practical Legal Education," for which a link is provided at the Legal History Blog. Because of family holiday preparations, this is a slow read for me. So far I have read Section I "The Utility of Legal History" and Section II. "Court-Centered Legal History," and am not into the meat of this article.

Each of these preliminary Sections makes references to originalism.

Section I. "Legal history's lessons might be unwelcome, for example, to those 'originalists' who purport to discern the Constitution's true and unchanging meaning and thereby proclaim themselves its authoritative expositors.

"... [L]egal historians can do little more than construe what they have been doing. They can only continue to show, for ever-expanding numbers of issues and with ever-swelling amounts of evidence, that 'originalism' is an inadequate, unreliable, and easily manipulable methodology. Indeed they can continue to show that 'originalism,' at least in some of its particularly strident forms, itself constitutes p paradigmatic example of law's 'contingent nature and ideological quality.'" [The author provides an interesting quote of Robert Bork to make this point.] (Pages 232-3.)

In Section II.: "Thus [court-centered legal history] does not include what has been called 'law office' or 'forensic' history. the use of historical materials to support predetermined and result-driven legal conclusions. Nor does it include those varieties of 'originalism' that seek to use historical materials to establish the pedigree and authority of currently useful constitutional propositions." (Page 235.)

By the Bybee {expletives deleted], Jack Balkin's "thin originalism" (based on his "Living Originalism," might also be described as "cross-dressing originalism."

Alas, the holiday spirit, and spirits, will backlog my readings.
 

At the Nation, Leslie Savan's "Elegy" "What 'The Colbert Report' Taught Us About the Psychology of Conservatives" is a must read for fans. Here's the URL:

http://www.thenation.com/blog/193281/what-colbert-report-taught-us-about-psychology-conservatives#
 

Further on "The Interview" and the Sony hackers and their impact on our 1st A (to find some relevancy to Gerard's post), North Korea has denied its involvement and suggests a "joint inquiry" to identify the hackers.

Segue to Matt Apuzzo and Mark Mazzetti's NYTimes article today "Possible Advice Against Penalty for C.I.A.'s Computer Search,' and its discussion of hacking by the C.I.A. into the Senate Committee's computers concerning the Committee's investigation of the C.I.A. that resulted in the Committee's Torture Report.

This brought to mind the Gulf of Tonkin Incident back in LBJ's day and Congress' almost unanimous Resolution that got America deeper into Vietnam (and led in 1968 to the election of Richard Nixon).

I'm not a conspiracy theorist, but can all this be put together, that perhaps the hacking of Sony and what followed were brought about by the C.I.A. as an excuse to take action against North Korea (and take the heat off on the Torture Report? (Query: It isn't clear if the C.I.A. cooperated in the making of "The Interview," the plot of which involves the C.I.A.)

Or is North Korea's proposal for a "Joint Inquiry" a move by North Korea in the direction of normalizing relations with America and the rest of the world?

The only thing missing is whether Pope Francis has been or may become involved.

In any event, this theory might make for the parody of "The Interview" that I suggested in an earlier comment. Where's Stephen Colbert when we really need him?
 

Looking for a Raymond Chandler movie, I came across "Long Goodbye" by William Colby, which is a very good (and of course very sad) book on the Cruzan case. One interesting tidbit is that they "lost" the Supreme Court case, but the ruling helped them in the end by leaving an important opening for more evidence.

It suggests the complexities of things not always expressed in some of these conversations. See, e.g., some of the to me overly assured comments in a Dorf on Law discussion on abortion.

Oh well. Winter is here. Happy Holidays all.
 

Joe, I share your concerns with that recent discussion at Dort on Law. I joined in off-topic comments - as I often do - as I generally choose not to get into debates on abortion as mixing religion, politics, ideology, etc, and I am pro-choice "all the way down."

Let me segue to that idiom that has so bothered me. Yesterday, despite my backlog, I downloaded Scott D. Gerber's "Liberal Originalism: The Declaration of Independence and Constitutional Interpretation" as both the title and the abstract piqued my curiosity. (A link is available at the Originalism Blog.) Here's a portion of footnote 14 on page 3: "14. ... Peter Martin Jaworski, Originalism All the Way Down: Or, the Explosion of Progressivism, 27. can. J. L. & Jurisp. 313 (2013)." I located and downloaded the Jaworski article.

But before reading it, I went back to Kurt Lash's review and checked his footnotes for references to Jaworski's article and to Stephen Hawking's "turtles all the way down" and discovered nothing on either.

It turns out that I had somewhat earlier read Jaworski's article, which is somewhere in my accumulating piles. I _checked Jaworski's footnotes (and scanned the text looking for references to Stephen Hawking; there were none. Jaworski's article includes the idiom at issue not only in the title but in his short Conclusion as follows:

"Progressive arguments against originalism and in favour of living tree methods of interpretation apply to judgments as much as they do constitutions. It is not possible to block progressivism ALL THE WAY DOWN [emphasis supplied] without involving originalism's fixation and fidelity thesis. This move, however, appears to be blocked given the vehement and apparently total rejection of these theses as grounds for accepting progressivism. There is, therefore, an awkward and puzzling tension in the very structure of arguments defending progressivism, while extolling judicial supremacy and stare decisis. Progressives cannot have both." [Note: consider Jack Balkin's "Living Originalis" which I recently dubbed as "cross-dressing" originalism as possibly providing both.]

So perhaps Lash with his review of McGinnis and Rappaport's book on originalism was having a litle fun with Jaworski in using the idiom "all the way down."

But this creates for me a new mystery: Is Lash a progressive? Or is this merely an inside joust in legal academia?

I am a progressive who wants his cake and eats it too. That will be my thought when I reread Jaworski's article; and at the end, that cake will go "all the way down."

Happy Holidays to all, even those who have been naughty (such as myself at times) as well as those who have been nice. But watch out with the new Congress.
 

Huff Post has an interesting video/audio "Reza Aslan And Theological Scholar Peter Lillback Debate Who Jesus Really Was" in the nature of originalism (actually philosophical hermeneutics). Here's a portion from the transcript:

"Lillback, the President of Westminster Theological Seminary, took issue with Aslan's claim, firing back that he'd like to "correct" the author about the level of fact to be gleaned from the Hebrew scriptures.

"When we continue to separate history and theology and say they cannot be together, that means that we who are living two millenia after Christ know more about that historical milieu than the people who actually lived there and saw the story," he said.

"We have to take the position that they are liars, that they were not speaking clearly about their views... that doesn't fit."

Our Constitution goes back only about one-quarter of a millennium and we have many theories on its interpretation/construction. Assuming we don't get a constitutional convention, and assuming America's continued existence, imagine at the millennium celebration the further proliferation of theories that will develop.

Further with respect to Lillback's comments, to what extent do originalists COMBINE history and theology into originalist theories (without assuming that such history and/or theology are accurate)?

No, this is not a War on XMAS, merely playing around with the hermeneutical circle, round and round she goes, where she stops nobody knows.
 

I read Reza Aslan's book on Jesus and found it pretty good though I disagree with him on certain things. He has provided some rational responses to some over the top comments by Sam Harris and Bill Maher on Muslims.

I think biblical analysis and such does provide overlap with constitutional law. I see some of the same things in both contexts. This includes various interpretations of the same words, limited knowledge of original intent, conflicting understandings even at the time and debates on how much that should even matter (even if we can determine what it was) years later. Oh, and who should be in charge to determine what it all means.

And, we have various people like RA that do provide somewhat surprising accounts of the original history and pushback from those who don't like the results. These people (add Bart Ehrman, Elaine Pagels et. al.) don't claim the original people were "liars" either. Not that (other than some of writings of Paul, who came on the scene after Jesus -- in some fashion -- left it) we actually have first hand accounts.
 

Those who do not follow the Legal History Blog might be interested in my comments at its recent post on Gerber's paper: "Liberal Originalism: ... " in particular Gerber's definition/use of "liberal" which he contrasts with Jack Balkin.

Gerber focuses extensively on the Declaration of Independence in praising Justice Thomas who he demonstrates as also a fellow "liberal originalist." I haven't quite finished Gerber's paper because of family holiday commitments but will have a number of comments on Gerber's version of originalism. Gerber must have had a sore arm in the process of preparing his paper patting himself on the back frequently.
 

I was Christened way back in 1930, was not a regular church-goer, eventually evolving into an agnostice leaning towards atheism (i.e., keeping my fingers crossed just in case). So we have a secular XMAS and will celebrate it with lots love. In this framework, today's NYTimes features Mark Bittman's column "An Atheist's Christmas Dream." It includes a reference to the WW I XMAS armistice at the front, the thought of which brings about tears of what "ought" rather than what "is" not. [This may be awkwardly stated, but you know what I mean.]

And there is an article by T. M. Luhrmann "Religion Without God" that ties into this XMAS season.

These are not efforts to proselytize but demonstrate tolerance. The world can get ugly at times, with man-made wars and with nature disasters. So let's take a time out with an XMAS armistice that might be extended through New Year's Day - until the start of the new Congress.
 

Hope all are having happy holidays (Boxing Day today) & a Christmas is not fully complete for me w/o a display case ....

http://www.oyez.org/cases/1990-1999/1994/1994_94_780

this one ended with an intriguing colloquy with Justice Thomas & only briefly did Breyer talk (via a short question) ... this was in 1995.

Like Kagan, I spent my Christmas nite at a Chinese restaurant, though unlike her, I'm not Jewish.
 

Joe,
Did you have Peking Duck? A local Chinese Restaurant (Chef Chang's) no longer in business (as least here) would feature Peking Duck WITHOUT advance notice required. The chef would carve at the table and would then be applauded. Chinese customers would have the carcass made into a broth served them later. I did not partake of broth but enjoyed the duck in pancakes with a scallion brush used to flavor the duck with hoisin sauce.

After my first taste of Peking Duck, I did some research and learned that in China Peking Duck would be cooked in large ovens suspended from the top, breast up, and the legs tied to the bottom of the oven. The bottom cavity of the duck would be closed off tightly so that hot water could be poured into the top cavity such that the heat within the duck and the the very high heat of the oven would quickly cook and seal in the flavors of the duck in fairly short order. I don't know if this was the method at Chef Chang's.

In contrast with the Peking Duck, I also enjoy duck breast rare/medium rare at non-Chinese restaurants. The first time I tried this dish I was somewhat skeptical being aware of concerns with undercooking fowl. But to my surprise it was delicious.

I was busy, with joy, cooking for the family yesterday. There is plenty of roast tenderloin of beef LOs for subs augmented with sauteed mushrooms and onions.
 

I'll leave the ducks to Scalia and Kagan.
 

This comment has been removed by the author.
 

Roger Cohen's NYTimes column today "The Virtues of Redeeming Vice" featuring the cigar bar (inter alia) at Berlin's Hotel Savoy is loaded with nostalgia that attracts geezers like me, except that as I read the column I was toe-tapping, then realizing that my brain was recalling Ella Fitzgerald's "Stompin' at the Savoy," not in Berlin but in New York, a jazz classic, with Ella's improvisations. Improvisation is a form of interpretation that makes life currently more meaningful and livable, while retaining the basics.
 

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