Balkinization: The "runaway convention" red herring

Comments:

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# posted by

Joe : 5:31 PM

The original convention was an open-ended affair where some key players wanted it to be a major change.

We can debate how "runaway" it was, but if the right criteria arose, I don't think it overly "paranoid" to think that at least some unexpected proposals might arise. And, Sandy Levinson wants some major changes of the constitutional system. So, "runaway" or intentional? If great changes are desired, some unintended consequences deemed to be worth it as part of a larger package might factor in.

If we are going to pretend some sort of lottery selection process is going to happen (I don't buy it the idea myself), we can pretend various things here.

# posted by

Joe : 5:34 PM

"we are at the brink of a genuine "constitutional crisis" should the magic number of 34 be achieved and Congress does its duty,"

I think you're going to have to explain what you mean by a "constitutional crisis". From my perspective, if the 'magic' number is achieved, and Congress does it's duty, that is just the Constitution functioning as intended.

The crisis happens when the magic number is achieved, and Congress refuses to call a convention. Or declares that it's own members shall be the delegates. Or in some other way attempts to render the convention route meaningless.

That's a "crisis". The Constitution being followed is just the normal operation of government.

# posted by

Brett : 5:36 PM

I don't think it would be a "constitutional crisis" w/o more if a convention is established. This is what is "quoted."

Sandy Levinson, however, argues that how the Constitution is working now has led to a "crisis" in that it is not satisfactorily fulfilling the needs of society.

Open to debate. But, merely because the Constitution is being followed (with normal elections and so forth) doesn't mean there is no "crisis." The "normal operation of the government" can simply not be done in a way to deal with the needs of the day.

This is a type of crisis of constitutional governance. I take it that the Weimer Constitution was followed technically correctly there still could have been a "crisis" in 1932 Germany.

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# posted by

Emilia : 7:22 PM

I doubt that random selection would be a successful strategy. The original Convention was successful not just because Washington lent it his credibility. Washington was willing to do so in part because the Convention was, in Jefferson's words, an "assembly of demigods". The Members were prominent in their own states, many prominent nationally, and all of them had both a strong educational background in the political theory of the time and practical experience as politicians and/or military leaders.

If you're supportive of a new Convention, then you need some way to assure that you can duplicate the conditions which made the previous one successful.

OT: If Nelson Tebbe is really interested in the answers to questions about the gay rights/religious freedom issue, he might consider enabling comments. Otherwise he's likely to find it pretty quiet.

# posted by

Mark Field : 7:45 PM

With respect to Sandy's:

"I strongly believe that the most important single sentence in our history if John Marshall's reminder in McCulloch that the Constitution is designed 'to endure' and, therefore, must 'be adapted to the various crises of human affairs.' The central question is who will do the adaptation and what will remain of a defensible and desirable 'republican form of government' after the adaptations take place. "

didn't the Marshall Court do the "adapting" in McCulloch? Does Sandy believe that adapting the Constitution should come about only by means of an Article V amendment? Is Sandy a Neo-Originalist? Was Marshall's single sentence wise but his decision in McCulloch wrong?

# posted by

Shag from Brookline : 8:22 PM

This is the closing paragraph of the article quoting Fred Wertheimer:

"This is by far the most dangerous thing in the country today,' said Fred Wertheimer, who heads the campaign finance advocacy group Democracy 21. 'If we ever got [to a convention], this would create a constitutional crisis unlike anything we’ve seen in our lifetimes.'”

Assuming Paulsen and Black are right (and I think they are), such a convention need not be a "runaway convention" to create a constitutional crisis. The 1787 convention was held in private in the heat of a Philadelphia summer (which I endured in 1956). I assume a convention now called under Article V would be transparent Maybe CSPAN3 would be created to cover it. Sandy's "red herring" reference is itself a "red herring."

# posted by

Shag from Brookline : 8:50 PM

The “runaway convention” fear is based largely on a misunderstanding of the Paulsen/Black position that Article V itself does not recognize a limited convention. I happen to think this position is wrong, but even if it is correct (or, more precisely, if the relevant constitutional actors decide it is correct), the structure of Article V guarantees that this position cannot lead to a runaway convention. I realize this sounds like one of those overly assured claims that lawyers constantly make (the Constitution “clearly” says x), but careful consideration reveals this is one of those "rare instances in which a political truth can be brought to the test of mathematical demonstration," as Hamilton put it.

To wit, if Congress receives 34 applications for a limited convention, it has a choice. It can decide that the applications are valid and that a convention must be called or it can decide they are invalid and that no convention should be called. If it calls a convention, that convention is either limited (if Congress was right) or powerless (if Congress was wrong). If that convention then proposes an amendment outside the scope of the applications, such an amendment is invalid either way. Thus, Congress would be not only permitted, but required, to refuse to submit the proposed amendment to the states for ratification.

Put another way, for an unlimited convention to take place, all 34 applications must be reasonably susceptible of an interpretation that would permit such a convention. Mike Paulsen covered this in some detail 20 years ago and, if anyone has taken issue with him on this, I am not aware of it.

Note that if the proposed amendment is so overwhelmingly popular that Congress fears opposing it, it has a completely legal option. It can propose the amendment itself, by a vote of two-thirds in each house, something it does not need an Article V convention for. But it cannot simply submit the proposed amendment for ratification by a simple majority vote.

Of course, one can postulate a situation in which circumstances are so dire and/or popular opinion so inflamed that all legal restrictions, no matter how clear, are swept away, ignored by Congress, the courts and the state legislatures alike. But under that assumption there is no point in having any discussion about legal rules at all. And it has nothing to do with an Article V convention.

# posted by

mls : 11:28 PM

Mis, I think you've well described the gymnastics Congress might go through in producing an actual constitutional crisis in regards to a constitutional convention. Article V doesn't say Congress may call a convention on receipt of the necessary applications. It says they shall call a convention.

If they get 34 applications, all phrased the same, they do not have discretion to reject them, they do not have discretion to cancel the convention and originate the amendment themselves.

They are not given discretion, because the convention is a method for working around them. You don't give the President discretion to decide that his veto hasn't really been overridden, or Congress discretion to decide that it's legislation hasn't really been vetoed.

You've provided a road map TO crisis, not around it.

# posted by

Brett : 5:53 AM

Brett- my point is Congress must, by the nature of the function it performs under Article V, make a determination as to whether it has received the required number of valid applications. In order to do that, it must make a judgment as to whether applications for a limited convention are valid. No doubt Congress could abuse this power, and indeed there are ample grounds to be concerned that it will abuse this power. And the states must be prepared to use all of the political and legal tools at their disposal to force Congress to call a convention when (in the judgment of the states) the threshold has been met.

But this doesn't change what Article V says.

# posted by

mls : 7:22 AM

mls':

"If that convention then proposes an amendment outside the scope of the applications, such an amendment is invalid either way. Thus, Congress would be not only permitted, but required, to refuse to submit the proposed amendment to the states for ratification."

is not spelled out in Article V. Perhaps the new originalism's interpretation/construction mode comes into play. And what does the 1787 Philadelphia convention and subsequent history on Article V inform us about this? We know what Article V says but not necessarily what it means or is understood, as demonstrated at this and the other thread at Sandy's earlier post.

# posted by

Shag from Brookline : 8:53 AM

Wow, I find myself in agreement with Shag: There's zero textual basis for Mis' view that Congress can "refuse to submit" amendments a convention orginates.

Indeed, once the convention begins, even Congress' minimal role in the process is gone. Congress doesn't submit the resulting amendments to the states, the convention does.

# posted by

Brett : 9:20 AM

If you take a look at Article V, you will see that Congress has to select the method of ratification for any amendment the convention proposes. This necessarily means that it must determine whether the convention has validly proposed an amendment. For example, an amendment to deprive states of equal suffrage in the Senate would obviously be invalid. So would an amendment outside the convention's scope.

# posted by

mls : 9:42 AM

To help:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

The original constitutional convention is often understood as a "runaway" convention, but the Congress at the time still allowed the result to go to the states.

Once the convention begins, the ball will start rolling. mls' assurances to me (even if Congress had the power to hold it back) seems somewhat missing the point.

The text of Art. V is not crystal clear (e.g., is it completely a political question? is there an implied time limit? what is the limits of the Senate proviso? etc.) and this includes the nature of "shall" call a convention and the particulars there. For instance, what happens if a convention goes beyond the guidelines for setting it up (who decides? did the original convention do this?)?

mls can do the usual assurance of how things go route (cf. mls' stance on filibusters) but what will actually happen here will depend on events.

# posted by

Joe : 9:45 AM

While Brett agrees with me on the textual basis, this does not mean that Congress (and the courts as a check on Congress) cannot read between the lines of Article V (as well as the entire Constitution, including perhaps Article I's "necessary and proper" clause?) to come up with some interpretation/construction, whether via originalism or non-originalism, in attempts to determine what Article means, requires. The 1787 convention went rogue on the Articles of Confederation in coming up with Article V by applying Article V in the ratification process BEFORe the Constitution approved by the convention was adopted via ratification. Circularity can be dizzying.

# posted by

Shag from Brookline : 9:49 AM

It can very well be the case that Congress merely has a ministerial duty to choose one of two modes of ratification.

The two limits can very well help the other side -- anything else proposed is okay. Any amendment that violates this rule -- "no state, without its consent, shall be deprived of its equal suffrage in the Senate -- would be void. Congress could logically have no power to send such an amendment to the states.

But, what it should do with some other alleged "improper" amendment (e.g., proposed by a convention going beyond instructions) is far from clear. Besides, the "runaway" fears to me would also be a concern about events overwhelming even (arguable) implied limits of this nature.

# posted by

Joe : 9:53 AM

mls':

"For example, an amendment to deprive states of equal suffrage in the Senate would obviously be invalid. So would an amendment outside the convention's scope."

it should be pointed, specifically addresses Senate equal suffrage, but not his second sentence. As I noted above, this requires interpretation/construction of Article V on which 535 in Congress might not agree upon and whatever Congress agrees upon, SCOTUS may come down 5-4 either way.

# posted by

Shag from Brookline : 9:57 AM

I respectfully disagree with mls. There's no reason to believe that Congress has the power to decide what is "proper" or "improper" as an amendment, given that the very purpose of the petition alternative to proposal by Congress was to deprive Congress of a veto on changes that it might not like. If one has a robust notion of judicial review, the time to test the
"propriety" of a constitutional amendment is after it is ratified. I assume that Wyoming would challenge the legitimacy of the Senate amendment. Others might challenge an amendment on grounds that it was beyond the Convention's power, but that is simply to ask whether a convention would be limited in what it could be propose. I agree with Charles Black, Mike Paulsen, and others who argue that any convention is "sovereign" at least to the extent of being able to propose whatever it wishes.

# posted by

Sandy Levinson : 11:57 AM

I'm not convinced by the judicial review theory, at least not on originalist grounds. Sure, we now have an expansive notion of judicial review, but I doubt anyone in 1788 expected the judiciary to review the validity of Constitutional amendments.

The discussion in the Convention rather supports the idea of a structural balance, whereby both the states and the Federal government participate in the process. Two points support this: Mason suggested (June 8) taking Congress out of the process for essentially the reasons given by Brett, but that was postponed and then never implemented; and the Convention agreed that the then-Congress should participate in the ratification process.

# posted by

Mark Field : 12:38 PM

Sandy- you are really not addressing the core of my argument. If you agree with Black and Paulsen, then the applications for a limited convention are invalid. Are you saying that if Congress calls a convention based on invalid applications, the convention nonetheless has the power to propose amendments? Under the Paulsen/Black theory, such a convention would be ultra vires and would not have the power to propose anything.

Now maybe you are saying that if Congress calls a limited convention and the convention exceeds those limits, Congress should nonetheless submit the amendment for ratification on the theory that the decision as to validity should be made by a more disinterested party (ie, courts or state legislatures). This would make sense if there were a substantial question on the legality of the proposed amendment (say there were reasonable arguments on whether the amendment actually exceeded the scope of the convention's authority). But if the states clearly ask for a limited convention and the convention clearly exceeds those limits, it is hard to see why Congress would be violating either the letter or spirit of Article V by refusing to submit the amendment for ratification. If the states want an unlimited convention, all they have to do is ask.

# posted by

mls : 12:43 PM

Joe: "Congress could logically have no power to send such an amendment to the states."

Mis: "Congress should nonetheless submit the amendment for ratification ... by refusing to submit the amendment for ratification"

Again with this. Look, when there's a convention, Congress doesn't do any submitting to the states. The Convention is the originating body for the amendments, not Congress.

A convention sending amendments to the states, and Congress trying to block them, THIS is a real constitutional crisis, the Constitution being violated.

# posted by

Brett : 12:56 PM

Article V is clear on one issue - the convention will propose the amendments. This provision nowhere grants the states the power to preemptively limit the subject matter the convention may consider. Thus, every Article V convention is a "runaway convention."

Coleman v. Miller, 307 U.S. 433, 450 (1939) noted that "Article V, speaking solely of ratification, contains no provision as to rejection" of a state's previous ratification of an amendment. Under this reasoning, States also should not be able to retract a previous application for a constitutional convention.

Thus, Congress can and should take the 34+ existing state applications for a constitutional convention, disregard any limiting language in the application, and call the convention now.

If Congress refuses to perform this ministerial requirement, any state legislature who applied for a convention should have standing to go to court to force Congress to call a convention.

The constitutional convention which proposed Article V to the states for ratification provides precedent for running a second convention. I suspect that the 34+ states applying for the convention would be more likely to follow that precedent than be able to agree to an alternate procedure.

Thus, we can assume that each state legislature will send as many delegates as it pleases, but that each state will have one vote.

The delegates will be coordinating their actions at the convention with their state legislatures. While a majority of states delegations could theoretically propose an amendment to all the state legislatures/conventions for ratification, I doubt that any will be put to a vote without support from enough state legislatures to ratify. Thus, while the subject matter a convention can consider is unlimited, the states possess an effective ratification check on the process.

Additionally, if the states are following the precedent of the first convention, then the convention may propose to amend Article V to lower the threshold for ratification to say 3/5 of the states and then propose to the states that this threshold be used to ratify all proposed amendments.

In the alternative, the convention could first propose to amend Article V to lower the threshold for ratification to say 3/5 of the states and have 3/4 of the states ratify that amendment. Then the convention could propose the remaining amendments under the new ratification threshold.

# posted by

Bart DePalma : 1:30 PM

The text says that "in either case" [however amendments are proposed] that they would become part of the Constitution via "one or the other mode of ratification may be proposed by the Congress."

The convention itself doesn't "send" them to the states. Congress chooses the mode of ratification.

ALL I'm suggesting is that maybe Congress need not do that in the narrow situation when the text singles out a few illegitimate amendments.

If Congress doesn't send a proposal to strip equal suffrage in the Senate per the text w/o unanimous consent of the states for ratification, don't think it is a "constitutional crisis."

# posted by

Joe : 1:31 PM

As to Mark Field's comment, originalism is more of a concern for others.

Second, Congress does have a role. The question is how broad it is. As is, the convention process was never used. And, even if it was used, Congress has a role. How big of one is debatable; but I think it could reasonably at least be a matter of setting up the basic procedures, timing and the like.

The power to veto amendments the convention itself determined is a lot trickier. Anyway, it would still have the role of choosing the mode of ratification. State legislatures v. conventions could be significant.

# posted by

Joe : 1:37 PM

Joe: Second, Congress does have a role. The question is how broad it is. As is, the convention process was never used. And, even if it was used, Congress has a role. How big of one is debatable; but I think it could reasonably at least be a matter of setting up the basic procedures, timing and the like.

Article V defines Congress's roles in this process and we enjoy the precedent established by the first constitutional convention called by the states. Neither grants Congress the power to set the procedural rules for the convention.

# posted by

Bart DePalma : 1:42 PM

Thanks to Bart for illustrating my point about lawyers declaring things to be "clear." The fact that Article V doesn't say anything one way or the other about states limiting the convention hardly makes it "clear" that they cannot. It doesn't say that Congress can disregard the limiting language in the states applications either, but somehow that is ok.

I am not sure if Brett's problem with Congress "submitting" the amendment to the states is just semantic, or whether he doesn't agree (or understand) that Congress has to choose the method of ratification. But Article V actually is clear on that.

# posted by

mls : 2:22 PM

Joe, I agree with your comment at 1:37. I only make originalist points because so many claim to be originalists. AFAIC personally, originalism is utter nonsense.

# posted by

Mark Field : 2:26 PM

"The convention itself doesn't "send" them to the states. Congress chooses the mode of ratification."

The utter disconnect between these two statements is glaring. Congress choses the mode of ratification, sure. How does this conflict with the statement that Congress doesn't send the amendments to the state, and thus can't refrain from sending them?

I suppose Congress could refuse to set a mode of ratification. Again, Congress refusing to do it's ministerial duty IS a genuine crisis, not a way of avoiding one.

Bottom line: The whole point of a convention is to deny Congress any say in whether a particular amendment goes to the states.

# posted by

Brett : 3:12 PM

mls said...Thanks to Bart for illustrating my point about lawyers declaring things to be "clear." The fact that Article V doesn't say anything one way or the other about states limiting the convention hardly makes it "clear" that they cannot.

Article V states in pertinent part:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments...

The power to propose amendments is expressly granted to the convention and not to the states.

Expressio unius est exclusio alterius or whatever is omitted is considered to be excluded.

# posted by

Bart DePalma : 3:27 PM

Brett, what exactly are we fighting over at this point?

Do you think if a state convention proposes this:

"Upon the ratification of 38 states, by convention or legislature as determined by Congress, the senators should be allotted by population"

Congress must send it to the states for ratification, even though Art. V expressly says it is invalid, and not doing so is a "constitutional crisis."

But, if Congress itself proposes it but then (upon a "point of order" or whatever) it is determined it has no power to do so even if 2/3 voted to propose, it is not?

Likewise, there is no "utter disconnect." Congress has to first choose a mode of ratification, which they can choose to do only after the state convention acts. They then would "send" the amendments to the state. This could be a mere "ministerial act," but Congress is the one doing it.

The convention can not simply "send" them to the states.

# posted by

Joe : 3:35 PM

This comment has been removed by the author.

# posted by

Joe : 3:47 PM

No, I don't think "Congress must send it to the states for ratification". I don't think Congress must refrain from doing so, either.

If the amendment is originated by the convention, Congress isn't doing any "sending" to refrain from. What, you think the states can't vote on ratification unless they get a registered letter from Congress with the amendment in it, or something? An email from the Convention's secretary won't do?

If the convention proposes such an amendment, it isn't in the slightest unconstitutional. It would just require every state to ratify it, thus consenting. Not bloody likely, but not unconstitutonal.

You'd be more likely to see an amendment first amending Article V to remove that clause, to clear the way. Article V doesn't say it can't be amended in that way.

(And there are South American countries, with constitutional clauses that are permanent in that fashion, not subject to even indirect repeal.)

# posted by

Brett : 3:49 PM

It should be kept in mind that Article V may provide for two (2) distinct conventions: one for considering enacting amendments; and a second to ratify amendment enacted amendments. In certain circumstances, no convention may be involved with first enacting amendments and second ratifying them. And there may be situations in which there would be only once convention, either to enact or to ratify amendments.

Regarding the criteria to be considered by Congress in calling for a convention to propose amendments or a convention to propose ratification of such amendments, Article V provides no detail. While the ratification of the 1787 Constitution may provide some guidance as a precedent, it must be kept in mind that the Constitution and of course its Article V became effective only AFTER, not BEFORE, ratification (the legality of which has been called into question as violative of the Articles of Confederation).

Quite a few of the comments on this and the prior thread fail to distinguish which of the two conventions is being addressed. We need more "convention-al" wisdom.

And reliance upon a questionable ratification some 225 years ago seems inappropriate.

# posted by

Shag from Brookline : 4:05 PM

After putting up my last comment, I revisited the Articles of Confderation on its amendment:

"Article XIII. Every State shall abide by the determination of the united States in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united States, and be afterwards confirmed by the legislatures of every State."

as a reminder of what happened behind closed doors in the summer of 1787 in Philadelphia with the constitutional convention. Yes, we are a nation of laws, not of men, except when we want to be. And the delegates did not have the benefit of steak & cheese - with all the fixin's - subs (aka hoagies, etc).

# posted by

Shag from Brookline : 4:40 PM

Shag:

The ratification conventions are state conventions, not a second national convention.

# posted by

Bart DePalma : 5:00 PM

Bart- suppose Article V said "Congress, whenever two thirds of both Houses shall deem necessary, or on application of two thirds of the Legislatures of the several States, shall propose amendments. . ." Would you say that under expressio unius the state legislatures would be limited to telling Congress they wanted it to propose amendments, without telling it what kind of amendments to propose?

# posted by

mls : 5:27 PM

mls: Would you say that under expressio unius the state legislatures would be limited to telling Congress they wanted it to propose amendments, without telling it what kind of amendments to propose?

That is what the text says.

The last time around, a couple of the states sent their delegations with instructions what to accomplish at the convention and the convention ignored the instructions.

# posted by

Bart DePalma : 5:35 PM

What, you think the states can't vote on ratification unless they get a registered letter from Congress with the amendment in it, or something?

Congress has the power of choosing how the "vote" goes -- by convention or legislature -- so yes, I do think the logical approach is to assume Congress first does that and then the official voting would begin.

Congress would in the official authorization here cite what amendments they are talking about. And, if the convention proposed five amendments, Congress might split them up as to method.

If my phrasing in the Senate hypo doesn't work, I'd waive it though even then Congress can in the official authorization on the mode of ratification can provide a statement noting -- any misleading assertion in the proposal notwithstanding -- all the states would have to agree to that sort of thing.

# posted by

Joe : 6:23 PM

Bart- the language I cited was the actual language in the penultimate version of Article V, which was proposed by Madison and adopted by the Convention before being changed at George Mason's insistence. It seems unlikely that Madison was using language in the way you apparently understand it. It would be nonsensical to mandate that Congress propose amendments upon the application of state legislatures, but not to require that those amendments have any connection to what the state legislatures wanted.

# posted by

mls : 6:50 PM

mls: " It would be nonsensical to mandate that Congress propose amendments upon the application of state legislatures, but not to require that those amendments have any connection to what the state legislatures wanted."

???

Article V: The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments...

Congress may propose amendments to the States or, upon application of the states, shall call a convention for proposing amendments. Article V nowhere grants the states the power to propose amendments to the convention.

# posted by

Bart DePalma : 6:57 PM

This, by our CO gasbag:

"The ratification conventions are state conventions, not a second national convention."

emphasizes the distinctions I was focusing on. The appropriate criteria to be considered by Congress for the former may differ significantly from the latter. But those criteria are not spelled out in Article V. The former would clearly involve voting by state. But how about the latter? Could Congress apply democratic principles in the selection of delegates to reflect the population at large rather than by state?

# posted by

Shag from Brookline : 8:00 PM

" Could Congress apply democratic principles in the selection of delegates to reflect the population at large rather than by state?"

I would say not, in as much as ratification is by a specified proportion of the states, which rather precludes it being according to proportion and ignoring states.

# posted by

Brett : 8:10 PM

Shag's question was actually asked by Madison, twice, at the Convention. No answer was ever given, so the makeup of the national convention, and its procedural rules, remains undetermined.

If Congress calls such a convention, there's no reason (pace Brett) to use the ratification process as justification for violating principles of one person one vote. The ratification process has its own procedure spelled out already, so wouldn't apply to the preliminary stage.

The individual state legislatures would presumably have some control over the second stage conventions, but even then I'd expect basic rules like one person one vote to apply.

# posted by

Mark Field : 8:59 PM

So perhaps the "national" convention called by Congress following an application by 34 states is more of a people's convention than the ratifying conventions (if that's Congress' selection as the mode for ratification) in that all 50 states are involved in determining amendments. And since Article V specifically limits amending the Constitution's clearly undemocratic Senate equal suffrage provision (with a shout-out to Sandy), there would seem to be no obstacle in Article V to prevent Congress from employing democratic principles in establishing the "national" convention. The different percentage factors triggering the two distinct conventions under Article V suggest that Congress may apply different criteria in their establishments.

# posted by

Shag from Brookline : 9:59 PM

Article V creates two paths to propose amendments - one through Congress and another through a state requested convention. The latter path can have no purpose for existing other than to bypass Congress to amend the Constitution. This is why Article V does not grant Congress any power over a constitutional convention apart from the ministerial duty of calling the convention at the demand of the states.

Functionally, it makes perfect sense for the states to run a convention whose proposed amendments must be ratified by the states to become law. It will be far easier for state delegations acting in coordination with their legislatures to fashion amendments that could be ratified than under any alternative method of choosing delegations.

How likely, for example, would it be for Sandy's lottery-selected delegation of 750 random citizens to agree on anything likely to be ratified by state legislatures or conventions?

Historically, the rules for the last convention were agreed to by the state delegations in coordination with the state legislatures. Each state had one vote to propose an amendment like it had one vote to ratify any proposed amendment.

There is no textual, functional or historical basis for the Congress to establish the rules for a constitutional convention called by the states.

# posted by

Bart DePalma : 10:26 PM

Our CO gasbag's:

"There is no textual, functional or historical basis for the Congress to establish the rules for a constitutional convention called by the states."

can be accurately modified as follows:

"There is no textual, functional or historical basis for the Congress NOT to establish the rules for a constitutional convention called by the states."

The Constitution recognizes specifically that each house of Congress may establish its own rules. Article V provides no guidance as to the rules for a "national" convention (or state conventions for ratification). Where is the authority for the "national" convention to determine its own rules, including for its establishment. It seems that our CO gasbag and Brett are two peas in a pod in their view that the "national" convention should be undemocratic.

And our CO gasbag informs us:

"Historically, the rules for the last convention were agreed to by the state delegations in coordination with the state legislatures. Each state had one vote to propose an amendment like it had one vote to ratify any proposed amendment."

Is his "last convention" the 1787 constitutional convention? Or is it some later convention? Under what authority did "Each state had one vote to propose an amendment ... "? There seems to be a mixing of roles here. This statement needs a lot of clarification.

# posted by

Shag from Brookline : 11:14 PM

Shag, perhaps Nicholas Cage films can be the answer here. By use of some lemon juice, he determined a secret map on the back of the DOI.

Clearly, see too Jack Balkin's latest on the originalist wars over SSM, some lemon juice needs to be added to the original Constitution, to get these "obvious" details me, you and Mark etc. are missing.

# posted by

Joe : 1:17 AM

Joe, the post by JB was most interesting. I'd like to comment on it but the on-topic discussion remains active.

You recently made an age-related comment aimed at me and the somewhat younger Sandy having observed, experienced much in our lifetimes. I was reminded of this in reading the NYTimes obit on Stan Freberg, reviving a lot of memories of my salad days when I could eat more red meat. The obit made many references to Freberg's career in comedy, satire and advertising. He was only about 4 years older than me but what an impact he made with his sense of humor. The obit in particular noted his role as Cecil the Seasick Sea Serpent in TV's "Time for Beany," ostensibly a children's show with adult humor that ran from 1949-1954, the years that I was in college and law school. Perhaps ME/TV will present some of Freberg's works. I'm sure kids who enjoyed "Time for Beany" back then might enjoy it even more being old enough to understand its adult humor.

Much more can be said about Freberg's accomplishments but first we've got to squeeze some lemons to juice up originalism in the manner Joe suggested. When the Constitution hands us lemons in some of its provisions (e.g., Article V), ask for Tequila and Salt. I'll drink to that and toast Freberg at the same time.

# posted by

Shag from Brookline : 8:39 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 10:05 AM

Shag: "The Constitution recognizes specifically that each house of Congress may establish its own rules....Under what authority did "Each state had one vote to propose an amendment[?]

Just as Congress sets the rules for its body to propose amendments, the states set the rules for the convention they call to propose amendments.

You are adding structural arguments to my textual, functional and historical arguments.

Thanks for the assist.

# posted by

Bart DePalma : 10:10 AM

Rather, our CO gasbag errs again, as clearly pursuant to Article V the states do not call the convention rather a specific number of states make application to Congress AND Congress calls the "national" convention. While the Constitution specifically authorizes each house of Congress to make its own rules, neither Article V nor any other portion of the Constitution specifically authorizes the "national" convention called by Congress per Article V to make its own rules. It seems our CO gasbag wears rose-colored textualist glasses in finding hidden authorization without the need for lemon juice. But there is no constitutional structure for our CO gasbag's foundation.

Note that our CO gasbag avoids any clarification of his "last convention" precedent.

By the Bybee [expletives deleted], here's a link to Wikipedia:

http://en.wikipedia.org/wiki/Beany_and_Cecil

on "Time for Beany" and its successor format.

# posted by

Shag from Brookline : 11:41 AM

Beany and Cecil? I knew Shag couldn't continue discussing this seriously for very long.

Relevant, I think:

Constitutional convention supporters unleash strategy to defeat state legislators standing in way

"Conservative activists pushing to amend the Constitution to rein in federal spending are preparing to delve into state legislative elections across the country, specifically targeting Republicans who are standing in the way of a convention of the states.

“Our attitude is if state legislators won’t stand against Washington, D.C., then they need to be replaced by somebody who will,” Mark Meckler, president of Citizens for Self-Governance and a leader of the state convention movement, told The Washington Times in an interview this week."

# posted by

Brett : 12:10 PM

Shag:

You are hiding behind semantics. The states and not Congress "apply" for constitutional conventions. Congress' only part in this process is ministerial.

There has only been one prior constitutional convention. One guess which one that was.

# posted by

Bart DePalma : 12:31 PM

Activists are trying to have a grass roots effort to influence state legislators is pretty relevant. State legislative control also affects redistricting and federal House races. "Congress" or "states" alone don't act here.

The people as a whole need to come in suitable numbers to push for change. They haven't yet.

A final note. The "conservatives" here want to limit government in a certain way in particular -- "rein in federal spending." Conservatives support governmental power in various ways. As to spending, they have to make hard choices long term.

For instance, military spending is a big chunk, but many conservatives don't support cuts. They split over the topic. This makes it harder to get the broad support needed to change things.

"Conservatives" not "libertarians" I might add. As to Shag's usage of humor, satire is a continuing tool that has had force over the years, including to show one's disdain.

# posted by

Joe : 12:56 PM

"As to Shag's usage of humor, satire is a continuing tool"

Which brings to mind an adage about hammers and nails, hammers also being tools, and reminiscent of Shag's satire, blunt tools, too.

# posted by

Brett : 1:39 PM

This comment has been removed by the author.

# posted by

Joe : 2:10 PM

Joe: "As to Shag's usage of humor, satire is a continuing tool"

Shag's name calling and other kindergarten sand box wit is perhaps analogous to these tools:

http://ecx.images-amazon.com/images/I/41A2udx006L._SY300_.jpg

# posted by

Bart DePalma : 2:10 PM

I think we all should be careful throwing stones here, but moderation is often a good thing. Again, some of us might not be the best medium for that message.

Cute toys; fun for future engineers, perhaps.

# posted by

Joe : 2:13 PM

Our CO gasbag's response:

"You are hiding behind semantics. The states and not Congress "apply" for constitutional conventions. Congress' only part in this process is ministerial."

How am I hiding behind semantics when I corrected his error? My exposure of his error was quite clear and open.

As to Congress' role being ministerial in responding to an application of at least a designated number of states, that is merely our CO gasbag's opinion. That "national" convention would include all the states. Our CO gasbag shows no authority in the Constitution or without to support his opinion. Article V does not provide specifics. And since the Constitution was ratified in 1791, American has not had a "national" convention called pursuant to Article V.

Finally, our CO gasbag responds on what he meant by the "first convention," to wit, the 1787 constitutional convention held behind closed doors in the heat of a Philadelphia summer. Of course that convention was not "called" pursuant to Article V as Article V did not then exist. So we must look, I assume, to the Articles of Confederation. I earlier included in a comment the provision in the Articles for its amendment. This first convention did not follow the requirements of the Articles in settling upon its approved 1787 Constitution, which included Article V that changed the manner of amendment/ratification provided in the Articles. Assuming that the ratification of the 1787 Constitution followed the requirements of Article V, it should be kept in mind that the Constitution, including of course Article v, was not in effect until actually ratified. Circularity? Pulling up by one's own bootstraps?

Add to this the question whether this "first convention" perhaps not technically being called/held in accord with the Articles of Confederation and we have poor precedents for purposes of Article V under which, following the 1791 ratification of the Constitution there has been NO call as yet for a "national" convention.

Our CO gasbag's charge of hiding behind semantics is most unusual for one claiming to be a textualist. Must be those rose-colored glasses.

# posted by

Shag from Brookline : 2:30 PM

If I, as the hammer, am blunt, and Brett the nail, that's some blunt nail (at least pictorially).

# posted by

Shag from Brookline : 2:36 PM

Shag: "As to Congress' role being ministerial in responding to an application of at least a designated number of states, that is merely our CO gasbag's opinion."

You need to brush up on what constitutes a ministerial act:

ministerial act n. an act...which is performed according to...legal authority...without exercising any individual judgment.

http://legal-dictionary.thefreedictionary.com/ministerial+act

After 2/3 of the states engage in the discretionary act of applying for a constitutional convention, Article V commands that Congress "shall" call a convention. Congress has no discretion and must obey Article V. This is the epitome of a ministerial act.

Constitutional conventions are creatures of the states in text and in practice.

# posted by

Bart DePalma : 2:59 PM

Of course our own CO gasbag fails to provide cites for his ministerial claim. He states rather emphatically:

"Constitutional conventions are creatures of the states in text and in practice."

If Congress chooses states conventions mode for ratification under Article V, it is not specified in Article V that the states create such conventions rather than Congress. But ratifying state conventions are different from the "national" convention, a single convention, not multiple conventions, that is called by Congress pursuant to Article V. Where is it provided in Article V that the "national" convention called by Congress is a creature of the states? As I noted in an earlier comment, since the 1791 ratification of the Constitution there as not as yet been a call for a "national" convention pursuant to Article V so that we don't have any "practice" regarding a "national" convention."

I understand ministerial as employed in CJ Marshall's opinion for the Court in Marbury v. Madison. But the two distinct types of conventions per Article V - especially the "national" convention - are a tad different from delivery of a commission to a justice of the peace for his appointment. Congress should use no judgment in performing its duties under Article V?

# posted by

Shag from Brookline : 3:47 PM

Shag:

All the states (eventually) participated in the 1787 convention and will participate in an Article V convention. This fact hardly makes the earlier convention a state affair, but the latter a "national" affair.

Article V provides path for the national government to propose amendments through Congress.

The Article V convention is the state path to propose amendments.

# posted by

Bart DePalma : 6:12 PM

Our CO gasbag conveniently forgets the two distinct types of conventions that may result pursuant to Article V, mixing them up. And with regard to the 1787 constitutional convention he fails to recognized that Article V was not in force until the 1787 was ratified in 1791. Following a procedure or procedures in Article V BEFORE the Constitution was ratified was not in compliance with the Articles of Confederation. Our CO gasbag continues his dance around this as it is part of his erroneous foundation.

I'm forced to give our CO gasbag three "LOUIES" for his continuing inconsistencies.

# posted by

Shag from Brookline : 7:33 PM

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# posted by

Unknown : 10:26 PM

Perhaps I was a tad insensitive in reacting to Brett's sensitivities with hammers and nails, which I thought about in the middle of the night when geezers like myself find it difficult falling back asleep. But then I checked Brett's "profile" and noted that Brett is a big fan of disgraced former Republican Whip Tom DeLay, aka "The Hammer." And the "profile" also revealed Brett's interest in his absolutist 2nd A connection to hammers. In contrast, I am a 1st A hammer enthusiast such as expressed by Pete Seeger with his rendition of "If I Had a Hammer." Check out the lyrics at:

http://www.metrolyrics.com/if-i-had-a-hammer-lyrics-pete-seeger.html

In contrast, consider the hammer in the hands of a self-proclaimed anarcho libertarian and 2nd A absolutist (perhaps to trump the 1st A?).

All I'm doing is hammering out "danger, "warning," "love," etc;" It's the hammer of justice, it's the bell of freedom." It's a collective hammer, like an Amish barn-raising. Now from the top:

"If I had a hammer, ...."

I can't hear you, Brett.

# posted by

Shag from Brookline : 7:56 AM

Here's my answer to Sandy's closing:

"There are all sorts of reasons to be hesitant to support a new convention (as my friends and family constantly tell me). But is that fear one of them? "

No. But as one gets longer in the tooth and shorter in the step, one should carefully listen to friends and family* - except when they want to step on the air hose.

* Real friends and family, not the social media versions

# posted by

Shag from Brookline : 10:22 AM

I have a "profile" that mentions Tom Delay? Where would this be, I'd really like to see it.

# posted by

Brett : 11:57 AM

Sandy's recent post is most interesting. However, it does not provide for comments. A number of articles have been written by legal scholars, political scientists and historians (including recently) on how interpreting/construing the Constitution may be influenced by the Declaration of Independence. The post cites with Sandy's praise a recent book with a headline description "The Declaration of Independence in Historical Context." How, if at all, might such context impact upon such articles that appeared before or even after this book was published? I look forward to Sandy and Jack's upcoming paper soon to be presented in Philadelphia, as well as other papers presented at that symposium on the Declaration. How might the documents in the new book reflect upon the role of Jefferson as the key author of the Declaration? And the signers?

Sandy's reference to the underlying complaint in the colonies being the role of Parliament was explored in Robert J. Steinfeld's "The Rejection of Horizontal Judicial Review During America's Colonial Period" in Critical Analysis of Law 2:1 (2015). As I recall I obtained the article via a link at the Legal History Blog. My interest in the article related to judicial review and its extension to horizontal judicial supremacy here in America. (I commented on Steinfeld's article at Brian Tamanaha' post at this Bog (now archived) on judicial review taking a somewhat contra position to Jack's post on judicial review.)

I'm not looking to start an off-topic thread at this post, but I would imagine that if a constitutional convention were called - and was open - that the subjects of both judicial review and horizontal judicial supremacy would most likely be addressed, as the Constitution makes no specific references to either. Might that make for a "runaway convention"?

# posted by

Shag from Brookline : 4:45 PM

Steven Smith's rejoinder to Jack Balkin's post on living originalism/SSm is an extension of the battle between the old originalism and new originalism that I have commented on in other threads at this Blog as demonstrated by Joel Alicea's critique of Randy Barnett (and Jack) to which Randy directly responded (but not Jack), followed by Alicea's response to Barnett. In Smith's post at this Blog, he provides a link with his reference to his "decisional originalism" to:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2562531

titled "The New and Old Originalism: A discussion" that includes papers of Smith, Rappaport, Baude and Sachs. (Larry Solum at his Legal Theory Blog gave this his "Highly Recommended." I understand that Solum is of the New Originalism school but am not aware of his being critiqued.)

There is quite a bit of conservative internecine originalist infighting. Now Jack Balkin is being dragged in by the dead-hand originalists via Smith as Jack's "living originalism" sticks in their craw. I await Jack's response.

# posted by

Shag from Brookline : 9:21 AM

I just watched "I'll Follow You Down," which in part is about time travel. The usual tropes about time travel probably have some application to trying to apply an "originalist" approach & the conviction this thing works brings to mind some slightly unhinged characters. Or, perhaps Victor Frankenstein (played by let's say Peter Cushing) sure this time things will go right, if just he does it the right way!

# posted by

Joe : 10:05 AM

Shag:

Sandy's paper dismissing the discussion of rights in the Declaration of Independent as a "throwaway line" should be interesting.

As a reminder, here is that "throwaway line:"

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.— That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,— That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The Founders offered the preservation of rights as the reason to establish governments and violation of those rights as the reason to change governments. This is the thesis of the Declaration, not a "throwaway line."

# posted by

Bart DePalma : 10:20 AM

It's a throwaway line to anybody who's concerned that their views of proper governance are regarded by a lot of people as "destructive of these ends". The left's views on the consent of the governed have evolved, as they've come to realize they're not going to ever have it.

# posted by

Brett : 10:30 AM

Brett:

Bingo.

I suspect that Sandy's paper will bear as much resemblance to the text of the Declaration as Jack's oxymoronic "living originalism" does to the text of the Constitution.

# posted by

Bart DePalma : 10:39 AM

Is there any libertarians out there? I see someone concerned about "the left," but since "the right" also have "destructive" views many people are concerned about and like to use federal power, just curious.

# posted by

Joe : 10:45 AM

The 1787 Constitution did not specifically incorporate by reference the Declaration of Independence. I am not aware that the Articles of Confederation did, but I'll have to go over it, although the Articles ceased to have any force after the Constitution was ratified even if in a tainted manner.

Perhaps Sandy can explain his "throwaway" description at least in general terms before his and Jack's paper is presented in Philly. I am more interested in the book praised by Sandy as it may reflect upon judicial review and horizontal judicial supremacy neither of which is specified in the Constitution except perhaps by donning textualist rose-colored glasses.

But query as to "unalienable rights" in DofI: Did that term include such rights that might subsequently evolve or did they have to exist bask in 1776 (or 1791 per interplay of the 9th/10th As?

# posted by

Shag from Brookline : 10:49 AM

Yes, Joe, there are libertarians out there, as demonstrated by our dynamic dyslexic duo Brat and Bert with their version of Sesame Street constitutionalism.

# posted by

Shag from Brookline : 10:52 AM

Joe:

I do not see any left and right.

I see an ideological continuum from freedom to authoritarianism.

We have had three political economies in this nation since the ratification of the Constitution - a free market republic, progressivism and our current progressive socialist hybrid shared with nearly every other OECD nation.

What we call liberal and conservative are really just support for different combinations of these three political economies.

We libertarians tend to support the free market republic to a greater extent than others, but even self identified libertarians differ on this support.

# posted by

Bart DePalma : 10:58 AM

Shag:

The Declaration established the USA on the principles that we all enjoy natural rights to liberty and that government's first job is to protect those liberties.

The Articles and the Constitution were attempts to create a political economy to achieve those general principles. The latter attempt generally succeeded for a majority of the citizenry and then gradually gave way to progressivism between 1890 and 1929.

I concede your exceptions for Democrat slavery and Jim Crow. Please do not replow that ground.

# posted by

Bart DePalma : 11:03 AM

The DOI was put at the head of the U.S. code and to me provides useful background to a general understanding of the Constitution.

For instance, Charles Black in "A New Birth of Freedom: Human Rights, Named and Unnamed" cites it to help define the rights protected by the 9A. The book is almost short enough to be the size of one of Shag's articles.

Personally, I think the nature of natural rights (if they exist) suggest evolution, since they are a matter of human contemplation that changes as times and knowledge change. Others have different views, perhaps.

As to not seeing things, Stephen Colbert ... waiting for you!

# posted by

Joe : 11:07 AM

Our own CO gasbag's concession ignores the timelines of slavery and Jim Crow since the Declaration of Independence, and fails to recognize that remnants of Jim Crow exist to this day. And of course our own CO gasbag throws in "Democrat" to describe slavery and Jim Crow without recognizing that the current base of the Republican Party consists of former Democrats from the former slave states who shifted Republican following Brown v. Bd. of Educ., the civil rights movement and the Civil Rights Acts of the mid 1960s. Yes, it is necessary to re-plow that ground since our own CO gasbag attempts to bury well over a century of American history with a flip concession.

And as to our own CO gasbag's versions of political economies, need I remind him that he has claimed that The Gilded Age were America's best days? Of course he fails to point out the few for whom those were the best days.

Further as to libertarians, I incorporate by reference the Paul Krugman NYTimes blog statement previously provided by me on this or Sandy's other post.

And from what our own CO gasbag does not see and does see, I suspect his opthamologist may be Rand Paul.

# posted by

Shag from Brookline : 2:25 PM

Shag:

As you well know, Democrats have imposed or maintained every act of government racial discrimination including slavery, Jim Crow and (the "remnants of Jim Crow") racial preferences.

Your so called "Gilded Age" was otherwise known as the Industrial Revolution (1866-1889) and featured 4.73% average GDP growth - the highest in American history, nearly twice that of the following Progressive Age (1890-1920, less the two years of WWI when we borrowed to buy war supplies and then destroyed them) and nearly three times that of the Obama administration (excluding the recession's negative GDP).

As to the number of libertarians in the electorate, Krugman was simply offering personal experience from his nearly completely progressive and socialist academic cocoon. Nate Silver set him straight.

http://fivethirtyeight.com/datalab/there-are-few-libertarians-but-many-americans-have-libertarian-views/

# posted by

Bart DePalma : 3:57 PM

I award our own CO gasbag two (2) "LOUIES" on his cockamamie mischaracterization of The Gilded Age as aka the Industrial Revolution. See shmoop ay:

http://www.shmoop.com/gilded-age/economy.html.

And three (3) "LOUIES" for "blaming" the Democrats for slavery. Our own CO gasbag may not know it, but slavery existed in America before the Declaration of Independence, after it with the Articles of Confederation in effect, and then further enhanced per the 1787 Constitution and the Bill of Rights ratified in 1791, all by the revered Founders, Framers, who, our CO gasbag seems to suggest were Democrats. Of course these documents did not provide for political parties and in fact back in those days political parties were frowned upon. But political parties did develop, under various names, including Democratic and Republican. But parties change - some disappearing, new ones surfacing - over the years. I've pointed out to our own CO gasbag numerous times that the Republican Party of today is not the Republican Party of Lincoln any longer, as the base of the current Republican Party consists of former Democrats from the former slave states as I noted in my earlier comment. Now I'm not blaming our own CO gasbag as he is now pushing libertarianism and not the Republican Party; he does "not see any left and right." That's my point, he doesn't know his left from his right in his efforts to dance through the minefield of historical facts that he avoids.

By the Bybee [expletives deleted], Paul Krugman's NYTimes column today "Where Government Excels" should cause our own CO gasbag to grind his teeth as he thinks of the good old days of his revisionist The Gilded Age as the Industrial Revolution.

# posted by

Shag from Brookline : 5:09 PM

I guess the comments went off subject:

There are all sorts of reasons to be hesitant to support a new convention (as my friends and family constantly tell me). But is that fear one of them?

Answer? Yes. The fear of the unknown, including what happens one things start to roll, is reason to be "hesitant."

"Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."

I do think at some point there will be more amendments. Don't know when or what they will be. Betting person thinks they will be proposed the old fashioned way, but we shall see.

# posted by

Joe : 6:08 PM

Perhaps the fear of a runaway convention might be addressed by Congress in calling a "national" convention under Article V by providing reasonable rules/regulations for the establishment and operation of the "national" convention, including in consultation with the states - all of them.. Article V does not specifically set forth what Congress may or may not do with respect to the "national" convention it calls. Some say this call is merely ministerial. But Article V does not say that. Keep in mind that since the ratification of the 1787 Constitution in 1789, there hasn't been as yet the triggering of such a call under Article V. If Congress' call were merely ministerial, what would be the roles of all 50 states in establishing such rules and regulation? Article V does not specifically provide for such roles by the states for the "national" convention.

The fear of a runaway convention might be tempered by the requirements of the ratification process, especially if the mode chosen by Congress is by means of state conventions rather than state legislatures. Article V does not provide specifics for such state conventions. I recall from an mls comment that after Congress passed the 27th (?) Amendment, it chose for ratification the state convention mode and provided for state legislatures to set up the state conventions in their respective states for purposes of ratification. That is not specified in Article V but may serve as a precedent for state conventions ratifications. But keep in mind that in that instance Congress had enacted the Amendment. Perhaps Congress might have different issues to address in selecting state conventions for ratification of Amendments that the "national" convention comes up with.

With the current political dysfunction, is Congress the greater fear? Where's FDR when we really need him?

# posted by

Shag from Brookline : 9:16 PM

BD: As you well know, Democrats have imposed or maintained every act of government racial discrimination including slavery, Jim Crow and (the "remnants of Jim Crow") racial preferences.

Shag: slavery existed in America before the Declaration of Independence

No kidding. Thus, my use of the verb "maintained."

The two men often called the fathers of the Democratic Party (Jefferson and Old Hickory) were both slaveholders.

Shag: the Republican Party of today is not the Republican Party of Lincoln any longer, as the base of the current Republican Party consists of former Democrats from the former slave states.

And yet the only political party today which supports government racial preferences/discrimination are the Democrats.

Shag: Paul Krugman's NYTimes column today "Where Government Excels" should cause our own CO gasbag to grind his teeth

Quite the opposite. Krugman is one never ending teachable moment in the dishonesty and willful ignorance of socialists and progressives. The only "public intellectuals" who offer equivalent fodder for libertarians and conservatives are Reich and Sanders.

Shag: I award our own CO gasbag two (2) "LOUIES" on his cockamamie mischaracterization of The Gilded Age as aka the Industrial Revolution. See shmoop...

Are you really citing "Shmoop" for an analysis of the Industrial Revolution?

BTW, the Progressive Age began in 1890 (not 1900) with the enactment of the Sherman Anti-Trust Act.

The "shmoop" claim that American workers plunged into "great poverty" during the Industrial Revolution would have been a surprise to Marx and his comrades, who blamed the growing wealth of American workers compared to their European counterparts for America's stubborn rejection of socialism and communism.

# posted by

Bart DePalma : 11:39 PM

Our own CO gasbag originally claimed Democrats "imposed or maintained" slavery and now attempts to clarify by emphasizing the latter. Was he hedging with his original claim? His imprecision deserves another LOUIE.

The current base of the Republican Party, former Democrats in the former slave states, continue with their schemes to make it difficult for more African-Americans to vote, more recently made more difficult by the Court's conservative 5 with Shelby County, as evidenced by the almost instantanious, knee-jerk steps taken by some of such former slave states to "implement" Shelby County with even more voting restrictions on African-Americans and other minorities of color. For our own CO gasbag's innuendo/suggestion that the current base of the Republican Party is neutral on matters of race, this calls for an award of three (3) LOUIES.

My cite to shmoop was on The Gilded Age, not the Industrial Revolution or the Industrial Age, each of which preceded and continued after the Robber Barons' (aka libertarians of) The Gilded Age days. For our own CO gasbag's continuation of "his cockamamie mischaracterization of The Gilded Age as aka the Industrial Revolution," two ((2) more LOUIES.

And the progressive movement was a reaction to the selfishness of Robber Baron libertarianism, which is trying to resurface today with a Second Gilded Age. The Great White Libertarian Hope" seems to be Rand Paul even though under the Republican "Clown Car" banner. Of course libertarians, being an endangered political species, may just "Cruz" along.

Perhaps our own CO gasbag might pursue his mis-history in the form of Al Capp's [he was a real conservative] Shmoo on his own blog in competition with shmoop and let the "free market" decide.

Now for a few choruses of "LOUIE, LOUIE."

# posted by

Shag from Brookline : 8:28 AM

Some off-topic nostalgia:

I was listening to Hillbilly at Harvard (Saturday mornings on FM 95.3 also streaming on the Internet at whrb.org) to Ferlin Husky's "Dear John." This was followed by Stan Freberg's parody "A Dear John and Marsha Letter." It took a lot of talent to out-country country music. Here's the URL for Freberg's version:

https://www.youtube.com/watch?v=ISxImOvlUuU

# posted by

Shag from Brookline : 10:36 AM

Shag was curious about the nature of inalienable rights. Perhaps, this will help -- the answer seems to be Genesis 1-2.

http://www.supremecourt.gov/ObergefellHodges/AmicusBriefs/14-574_Rev_John_T_Rankin.pdf

April is poetry month & Genesis 1 is in effect a sacred poem. So fitting.

(Brief also discusses DOI etc. Part of the amicus briefs in the SSM cases, found on the USSC website)

Also dying recently was Geoffrey Lewis (Juliette Lewis' dad) and James "Roscoe P. Coltrane" Best. Thinking of you little buddy.

# posted by

Joe : 11:05 AM

The reference to Genesis 1-2 reminds me that I noted a recent purchase of apple juice was labeled "Apple & Eve," a reminder perhaps to some of original sin. The God of Abraham is claimed as the God not only of Hebrews but also of Christians and Muslims. What God had wrought is on display globally today in many conflicts between these religious groups. Perhaps some can imagine, hope for, a constitutional convention that will declare America as a Christian Nation - white, of course - whistling "Dixie" or "K-K-K Katy."

How might originalism address Genesis I and/or 2 (is there a 3?) applying principles [sic] of originalism?

# posted by

Shag from Brookline : 11:29 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 11:49 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 11:50 AM

Shag:

Are you really making the racist argument that African Americans are too lazy or stupid to get photo IDs like everyone else?

In any case, the progressive movement was an importation of Bismarck's "state socialism" (the German term, not mine), which was designed to expand government control over the economy and to make the citizenry dependent upon and thus supportive of Germany's authoritarian government. You really should take some time to read the American progressives in their own words. These people were borderline fascists.

When you argue against allowing "the free market to decide," you are really arguing against allowing us all to live our lives as we please so long as we do not harm anyone else. We are the free market.

THIS is why we badly need a constitutional convention to reverse most of the progressive political economy.

# posted by

Bart DePalma : 12:03 PM

Our own CO gasbag recites the basis for the current base of the Republican Party (former Democrats in the former slave states) resorting to methods of diminishing voting by African-Americans and other persons of color. Our own CO gasbag rides on the coattails of the libertarian Rand Paul whose theme is to take America back when our own CO gasbag spouts his libertarian mantra:

"THIS is why we badly need a constitutional convention to reverse most of the progressive political economy."

)Check the Huffington Post today for a response in song to Rand Paul about taking America back.)

Yes, our own CO gasbag wants to eliminate Social Security, Medicare, Medicaid, Obamacare, pure food and drug laws, etc. Well, fortunately libertarians are an endangered political species as like our CO gasbag they do not readily breed. Recall the Tea Partier's protest of Obamacare: telling the government to keep its hands off his Medicare? Our own CO gasbag suffers from the same myopia as self-certified opthamologist Rand Paul with his half-Atlas shrugging. The truly free market doesn't exist. The irony is that if our CO gasbag lived in The Gilded Age, he probably would have been laying rails and railing at the Robber Barons.

# posted by

Shag from Brookline : 2:46 PM

Joe's reminder that "April is poetry month & Genesis 1 is in effect a sacred poem" reminded me of this 2014 effort of mine from my personal archives:
***
GENE-SIS

Where did it all begin?
Did it start with original sin,
When Adam took a rib
And cloned a sister sib?

Yes, Adam made Eve
By means of a cleave
As he felt so lonesome in Eden
But without thoughts of breedin’.

The apple they had shared,
As the serpent them had dared,
From the forbidden Knowledge Tree
Taught them of carnality.

Had they chosen the Tree of Life
They might have avoided mortal strife
Gaining lives perpetual
In exchange for being asexual.

So is it better to live forever
Without sex – ever? never?
The joy of sex means we bereave.
But better Eve than Steve.

That’s so we can propagate
In ways that are innate.
While Adam and Eve were incestuous,
Their breeding led to the rest of us.

***

But for original sin, would we be?

# posted by

Shag from Brookline : 3:15 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 8:07 PM

Shag:

It does not matter what you and I think about the desirability of the system, the progressive/socialist welfare state is unsustainable.

If you measure insolvency of a welfare state program as when its spending exceeds its tax revenues, Medicaid, Medicare, Social Security and SSI are all insolvent now. If you play pretend that intergovernmental bonds (congressional IOUs for past tax surpluses they spent) which Treasury has to borrow money to pay off is an actual trust fund, then SSI will be insolvent in a year or two, Medicare in less than a decade, and Social Security in a bit over a decade.

By the time they all run out of IOUs, the nation will have a public debt of well over 100% of the annual GDP and itself will be a few years out from sovereign insolvency.

If you managed to loot every single penny from the "evil 1%," that money will run out after a year and then the quarter of tax revenues the 1% pay into the federal till every year would disappear.

You might be able to string things along for awhile if you DOUBLE the tax load of the bottom 80% of earners to about where it is in Europe now. As the EU is discovering, even that money runs out. Of course, there is no way in hell American voters would agree to allow the government to loot that much of their earnings.

THERE IS NO SOLUTION OR ESCAPE

# posted by

Bart DePalma : 8:08 PM

Our own CO gasbag says boldly:

"THERE IS NO SOLUTION OR ESCAPE"

forgetting about his position in other threads at this Blog of revolution as the only alternative if [insert his usual blah, blah, blah] doesn't happen. {As a geezer luddite, I don't know how to respond as boldly or up-font him.] Keynes said in the end we're all dead. Yell "The Sky Is falling" long enough and eventually the prediction may come true. But our own CO gasbag has been yelling since President Obama inauguration in January of 2009 perhaps forgetting that the Great Recession was attributable to the Bush/Cheney 8 inglorious years. But he gives no timeline for his new prediction. [Cue to BB.]

Our own CO gasbag's Chicken Little emulation deserves at least five (5) LOUIES.

# posted by

Shag from Brookline : 9:03 PM

In this time of sesqui-centennials, a must read is Gregory P. Downs' NYTimess essay "The Dangerous Myth of Appomattox." Beware of revisionist histories. When reading this essay, keep in mind that the current base of the Republican Party consists of former Democrats from the former slave states.

The essay extends to other American wars and how they end - or don't. I would appreciate Mary Dudziak's thoughts on this aspect as the Greater Middle East continues in turmoil and how some in America want America to be in on the ground floor (excepting themselves and their families) for obviously partisan reasons.

# posted by

Shag from Brookline : 8:02 AM

NYT: "Once white Southern Democrats overthrew Reconstruction between the 1870s and 1890s, they utilized the Appomattox myth to erase the connection between the popular, neatly concluded Civil War and the continuing battles of Reconstruction."

This conveniently forgets the white Democrats in the Northern cities informally imposing much of the same terror.

Despite Shag's ongoing attempts to rewrite history, the common perpetrators of racial discrimination then and now are Democrats.

# posted by

Bart DePalma : 1:49 PM

Reading Zephyr Teachout's book on corruption. History has some lessons to teach though what we do with it, including when applying the Constitution, is up to the living.

# posted by

Joe : 3:20 PM

Query: Did the white northern Democrats do anything like this?:

"Meanwhile, Southern soldiers continued to fight as insurgents, terrorizing blacks across the region. One congressman estimated that 50,000 African-Americans were murdered by white Southerners in the first quarter-century after emancipation. 'It is a fatal mistake, nay a wicked misery to talk of peace or the institutions of peace,' a federal attorney wrote almost two years after Appomattox. 'We are in the very vortex of war.'”

as reported in the NYTimes essay.

Our own CO gasbag notes a quote from the essay and provided this comment:

"
This conveniently forgets the white Democrats in the Northern cities informally imposing much of the same terror."

Compare these two quotes from the essay to get an understanding of our own CO gasbag's misuse of "terror." 50,000 African=Americans murdered. And this does not include the K-K-K-Katy lynchings down South that continued well into the 20th century.

For showing his true colors via revisionism of history once again, two (2) more LOUIES for our own CO gasbag.

# posted by

Shag from Brookline : 4:23 PM

Just as technology changed over the years, so has corruption, both actual and in appearance via "sophisticated" methods. The Court (5-4) recently drew a bright line. Alas, it blinded the gray areas of the appearance of corruption that is quite noticeable in politics (both parties).

# posted by

Shag from Brookline : 9:15 AM

Shag:

You might want to read about the history of the KKK and lynchings in the North. The numbers up north were fewer because the number of Democrats were fewer.

While the Klan was lynching African Americans across the country, Democrat Woodrow Wilson was privately screening "Birth of a Nation" at the White House.

# posted by

Bart DePalma : 9:36 AM

Our own CO gasbag's:

"You might want to read about the history of the KKK and lynchings in the North."

suggests his yearnings for K-K-K-Katy and The Gilded Age, "free markets" he can believe in.

As to Woodrow Wilson, yes, he was a racist, having been bred in the revisionist history of the Slave States. But based upon the ilk of our own CO, perhaps he was actually praising Wilson and a product of that revisionism "Birth of a Nation."

Our own CO gasbag's efforts at his own revisionism do not change the fact that the current base of the Republican Party is made up of former Democrats from the former slave states. Query: Will that base support the candidacy of Rand Paul, a half-Atlas Republican/libertarian, or will that base's banner be "CAN'T STAND RAND"?

# posted by

Shag from Brookline : 10:14 AM

There is another "originalist" same sex marriage post up.

The idea is that looking at the broad principles the 14A was understood to advance, you can show how originalism can be used to argue same sex marriage.

This might be deemed not a very useful form of originalism, but it matches how it is applied in other cases. Arguing originalism can support Loving v. VA is about as easy to argue other marriage equality cases. This is especially the case once sex equality is used to protect wives, something few (outside maybe South Carolina) doubt.

But, coverture is not really "traditional" marriage, right? Seriously, once you move past a form of originalist that results in measures simply not accepted, realistically you are left with selective appeals to precedent to wall off "problem" cases, selective use of history or broad levels of generality that tend to be selectively applied.

[Scalia fulfills each one of these depending on the case. He selectively accepts substantive due process, ridiculing attempts to use the arguably more originalist P&I Clause. He applies racial discrimination is an open-ended way broader than most would have expected in 1869. And, selectively takes lessons from history when it comes to religious liberty.]

Originalism is often more of a sort of tendency these days in the courts, especially for people like Roberts, Alito and Kennedy. This plus the reality of how Scalia and yes even Thomas uses it, these originalist briefs are practical.

And, given history shouldn't tie us when acting today, but can be useful to teach some lessons, briefs like Gans etc. are helpful. If they are not taken overly seriously as "originalism" that is "rightly" applied. There is no real good way to determine that anyway.

# posted by

Joe : 4:55 PM

Let's tie-in the idea of a constitutional convention, the theme of this post by Sandy, with originalism [although I don't think Sandy is an originalist]. The Constitution does not include a specific provision for how it is to be interpreted/construed. Originalism was "inspired" by the Warren Court (and to a lesser extent by the Burger Court) "activism," which coincidentally (?) "inspired" the Federalist Society (made up of latter day anti-federalists). This movement started in the 1970s and was impelled by AG Ed Meese in the early 1980s, evolving along the way as weaknesses in the theory were exposed. [Thanks to Paul Brest.] Until fairly recently originalism had settled with the new (or new, new) originalism of interpretation/construction. But now there is an internecine conflict among conservative originalists that has also dragged in Jack Balkin's living originalism. The conflict has not as yet been resolved, as Keith Whittington and Larry Solum have not (to my knowledge) been heard from, they being two (2) prominent new (or new, new) originalists.

So if there were a second constitutional convention, surely the issue of interpretation/construction would be on the table, including perhaps various fixation periods for the application of "principles" of originalism, depending upon the extent of the conclusions of such a convention. Imagine that some fixation periods might go back to 1787!

A wise man once said: Originalism is to constitutionalism as Original Sin is to Religion. Let us prey [sic].

# posted by

Shag from Brookline : 7:13 AM

I would be interested to know how the changes would affect how the Constitution will be interpreted. The one we have only has a few things to help us out such as a sort of rule of interpretation (9A) and a few things of some guidance (patents/copyrights clause, preamble to the 2A).

The 10A and 11A have been implied to "say" more than the text actually explicitly does while it can be argued some other things say less (e.g., the "limited times" of copyrights that provides protections of stuff long into the future).

One thing I think changes would address, e.g., is the current administrative state. Another would likely be the power of the executive in foreign affairs in certain respects. The 21st Century in both cases having aspects rather different than the 18th.

# posted by

Joe : 9:04 AM

Shag:

Amending the Constitution would be a useless exercise if we continue to allow courts to rewrite or erase what is written there.

An amendment along these lines should help:

The judicial power shall include interpretation of statutes, treaties and this Constitution, but such interpretation shall be limited to the original meaning of the language of the law as it was commonly understood at the time of its enactment. To the extent that the original meaning of the law is uncertain, the judiciary shall construe the language against the reviewed government exercise of power. This section shall have retroactive effect and all prior judicial decisions exceeding the foregoing limits have no precedential value.

# posted by

Bart DePalma : 9:27 AM

Is our own CO gasbag back promoting his up-chucking work of friction again?

# posted by

Shag from Brookline : 9:43 AM

Another contributor cites an interesting article on the Magna Charta on his other blog.

http://www.newyorker.com/magazine/2015/04/20/the-rule-of-history

# posted by

Joe : 2:12 PM

Joe, thanks for the link. Jill Lepore is an excellent legal historian and a great writer. The article is a great read. To continue on the off-topic of originalism, consider this from the article:

"For American originalists, in particular, Magna Carta has a special lastingness. 'It is with us every day,' Justice Antonin Scalia said in a speech at a Federalist Society gathering last fall."

And originalists are endowed with the hindsight to determine the original meaning of the Magna Carta back in 1215? Query whether the Framers of the 1787 Constitution and the Bill of Rights a couple of years later applied fixation principles of originalism to the extent they infused the "meaning' of concepts/portions of the Magna Carta in their deliberations?

# posted by

Shag from Brookline : 4:19 PM

And over at Concurring Opinions, a post by Gerard on the Magna Carta providing a link to Jill Lepore's The New Yorker article, includes a commenter providing a link to Lord Sumption's "Magna Carta then and now, Address to the Friends of the British Library." This is 18 pages short (double-triple spaced) and my next read. The veneration of historical documents sometimes ignores some substantive conflicting histories.

# posted by

Shag from Brookline : 9:00 AM

The Magna Charta article cited is interesting and apparently Edward Coke (who in an originalist sort of way and otherwise is something of a patron saint of judicial review) apparently did some law office history before it was cool.

The Magna Charta appears to have a kernel of an idea of the limits of executive power and the rule of law, even if how it was applied in the times of Robin Hood the Merry Men (about as fictional as how the Magna Charta was remembered) it was very different.

This could in some fashion be kept in mind when it is applied in a much later context, but it's important to keep in mind the changes. This should be kept in mind when applying history in the same sex marriage cases.

I wonder how future generations will understand our own times, including a new constitutional amendments. Consider, e.g, GRANHOLM v. HEALD involving the 21A. Stevens, who remembered the times when it was ratified, dissented and had a different view of the "original understanding" than the majority.

Scalia and Thomas also were on opposite sides.

# posted by

Joe : 9:53 AM

In a recent comment on Jill Lepore's article, I asked:

"Query whether the Framers of the 1787 Constitution and the Bill of Rights a couple of years later applied fixation principles of originalism to the extent they infused the 'meaning' of concepts/portions of the Magna Carta in their deliberations?"

Here's an answer from Lord Sumption'a Address:

"[Sir Edward Coke's] analysis of Magna Carta was swallowed wholesale by the early American colonists. The framers of the US Constitution and the federal and state Bills of Rights, deployed Magna Carta against the government of George III just as Coke had deployed it against Charles I. The due process clause of the fifth and fourteenth Amendments, is based on Article 39 as interpreted by Coke." [Lord Sumption then compares citing of Magna Carta in American courts with English courts that is quite interesting.] (Pages 15-16.)

Lord Sumption continues on page 17:

"[Magna Carta] has become part of the rhetoric of a libertarian tradition based on the rule of law, that represents a precocious and distinctly English contribution to western political theory. The point is that we have to stop thinking about it just a a medieval document. It is really a chapter in the constitutional history of seventeenth century England and eighteenth century America."

Is this enough of a tease? Those who enjoyed Monty Python should enjoy this Address.

# posted by

Shag from Brookline : 8:26 PM

Here's another tease, this from Lord Sumption's closing of his Address:

"So when we commemorate Magna Carta, perhaps the first question we should ask ourselves is this: do we really need the force of myth to sustain our belief in democracy? Do we need to derive our belief in democracy and the rule of law from a group of muscular conservative millionaires from the north of England, who thought in French, knew no Latin or English, and died more than three quarters of a millennium ago? I rather hope not."

# posted by

Shag from Brookline : 5:23 AM

In a recent comment, I quoted this from Jill Lepore's article:

"For American originalists, in particular, Magna Carta has a special lastingness. 'It is with us every day,' Justice Antonin Scalia said in a speech at a Federalist Society gathering last fall."

I wonder if "The Originalist" might be gnashing his teeth upon reading Lepore's article and the Address of Lord Sumption?

# posted by

Shag from Brookline : 6:50 AM

Scalia did say in his Time magazine comments about RBG that she is almost always right.

Lest it be crowded out, this also the 150th anniversary of the end of the Civil War, with its own myths.

One good book covering this top: "Appomattox: Victory, Defeat, and Freedom at the End of the Civil War" By Elizabeth R. Varon.

# posted by

Joe : 9:48 AM

Sumpton: "So when we commemorate Magna Carta, perhaps the first question we should ask ourselves is this: do we really need the force of myth to sustain our belief in democracy? Do we need to derive our belief in democracy and the rule of law from a group of muscular conservative millionaires from the north of England, who thought in French, knew no Latin or English, and died more than three quarters of a millennium ago? I rather hope not."

Muscular conservative millionaires?

:::heh:::

Well, at least he is properly analogizing the rule of law with (modern) conservatism.

In any case, yes, we should celebrate Magna Carta as a milestone in using law to check the arbitrary rule of governments.

# posted by

Bart DePalma : 6:11 PM

It's obvious our own CO gasbag never really "got" Monty Python. Those "muscular conservative millionaires" back in 1215 were the Barons (after which the Robber Barons of The Gilded Age modeled themselves), the present day equivalent of the 0.01%. Charles Beard thought the elite Framers back in 1787 were looking at their own economic interests in structuring the Constitution, many of whom were slaveowners. It's obvious our own CO gasbag admires the power of money, even though like the snakes in Franklin Park Zoo years ago he doesn't have a pit to hiss in. I do not assume that our own CO gasbag actually read Jill Lepore's essay and Lord Sumption's Address.

And note that our own CO gasbag did not take the bait on this quote from Sumption in an earlier comment:

"[Magna Carta] has become part of the rhetoric of a libertarian tradition based on the rule of law, that represents a precocious and distinctly English contribution to western political theory. The point is that we have to stop thinking about it just a a medieval document. It is really a chapter in the constitutional history of seventeenth century England and eighteenth century America."

Our own CO gasbag will have to dig deep in Magna Carta to find a libertarian pony.

# posted by

Shag from Brookline : 8:02 PM

Shag:

How on Earth are Medieval warlords at all comparable with 19th century entrepreneurs in your alternate universe?

The Founders quite intentionally formed a new political economy - a free market republic - based on Enlightenment classical liberal theory. The Constitution created an almost completely free national market and went halfway toward a free market in international trade (free trade going out, but tariffs on imports).

This new political economy was and did benefit all free men and women.

The results were unprecedented in world history. During our first century, the American economy grew at an average of around 4.6% a year and turned the United States from a failing and destitute colonial backwater in 1787 to the world's largest economy.

Tens of millions emigrated from the greatest economic powers of the time to the United States because they could freely create their own businesses and our workers were the best paid on Earth. Far from the impoverished hell progressives propagandized.

# posted by

Bart DePalma : 10:32 PM

Our own CO gasbag in an earlier comment had repeated a quote from Lord Sumption's Address that I had provided as a tease; which closed the final paragraph of Lord Sumption's Address. This is what preceded that quote in the final paragraph:

"Ultimately, one's attitude to political myths of this kind [Magna Carta!] depends on where one situates one's golden age. Those who created the myths that surrounded Magna Carta located their golden age in the past. Their ideal was the recapture of an imagined paradise lost. To Coke and his generation it really mattered that the common law as they understood it in the seventeenth century should have existed in much the same form since the days of King Alfred or the legendary Brutus the Trojan. It really mattered that it should have been encapsulated in Magna Carta. The authority of their legal programme depended in large measure on its supposed antiquity. Otherwise, they would have been more revolutionaries and not the respectable English gentlemen that they believed themselves to be. Today, the pendulum has swung the other way. 'Medieval' has become a synonym for barbarous. We are frighteningly ignorant of the past, in large measure because we no longer look to it as a source of inspiration. We are all revolutionaries now, controlling our own fate." [For continuity, here is the remainder of the closing paragraph earlier quoted.] "So when we commemorate Magna Carta, perhaps the first question we should ask ourselves is this: do we really need the force of myth to sustain our belief in democracy? Do we need to derive our belief in democracy and the rule of law from a group of muscular conservative millionaires from the north of England, who thought in French, knew no Latin or English, and died more than three quarters of a millennium ago? I rather hope not."

Our own CO gasbag's "golden age" if The Gilded Age, as he sees it, America's best days. This puts his last comment in context.

[To be continued.]

# posted by

Shag from Brookline : 7:57 AM

Our own CO gasbag's last comment revives him as our very own f/k/a Mr. Myth. Let's start with this:

"This new political economy [Founders' myth] was and did benefit all free men and women."

Yes, that resulted from the creation of an almost "free market." But how "free" were white women without the vote and other rights until the early 20th century? And what about the "unfree" (aka slaves), men and women and children, from whose forced labor many of the slave owning Framers benefitted economically with the 1787 Constitution - and later Bill of Rights (ratified 1791) - that enhanced their economic interests in slaves and slavery even beyond the benefits of the earlier Articles of Confederation? Our very own Mr. Myth does not address the minority that did not benefit from this almost "free market" created by the Framers. The economy of the first American century grew on the backs of the labors of the "unfree,' yes, unprecedented in the history of the world AT THAT TIME, interrupted four score and seven years later by the Civil War.

In time America became the world's largest economy. But our very own Mr. Myth fails to tell us when. Could America have become the world's greatest economy post The Gilded Age via the Progressive Era which our very own Mr. Myth continues to disparage? As to his:

"Tens of millions emigrated from the greatest economic powers of the time to the United States because they could freely create their own businesses and our workers were the best paid on Earth."

it fails to inform us of how in the 20th century via liberalism and progressivism this came about.

Alas, our very own Mr. Myth harkens back to his golden age of The Gilded Age as America's best days, when the labor for the Robber Barons was provided by immigrants who got paid in the dark, not the best paid on Earth, under unregulated working conditions. How many of the immigrants back then freely created their own businesses?

I trust our very own Mr. Myth continues to dig ever deeper into Magna Carta in search of a libertarian pony.

# posted by

Shag from Brookline : 9:33 AM

Is the real Magna Charta behind the killer rabbit or the knights that say "ni!"? Also, on this date 90 years ago:

http://www.oyez.org/cases/1901-1939/1904/1904_292

It's not 100, but as a post notes, this is really only the 790th anniversary of the Magna Charta.

Would a new constitutional convention include social rights, including the right to health care, employment or the like?

Does Justice O'Connor, who promotes a website for students with games, have a role player game for constitutional conventions? Seems like a promising Sims sort of game.

# posted by

Joe : 10:27 AM

Shag:

Parting thought: Imagine how much faster the economy would have grown over our first century if full liberty was extended to everyone.

# posted by

Bart DePalma : 3:21 PM

Correction: Lochner was 110 years ago. See, e.g., here for background:

http://www.lawyersgunsmoneyblog.com/2015/04/this-day-in-labor-history-april-17-1905

# posted by

Joe : 4:34 PM

Parting thought: Imagine how much faster the economy would have grown over our first century if full liberty was extended to everyone.
# posted by Blogger Bart DePalma : 3:21 PM

Presumably you're talking about the "liberty" of the robber barons to kill striking workers?

# posted by

Anonymous : 5:00 PM

Our very Mr. Myth (f/k/a - inter alia - our own CO gasbag) poses this, presumably in a serious vein:

"Parting thought: Imagine how much faster the economy would have grown over our first century if full liberty was extended to everyone."

Imagine if slavery ended on July 4, 1776, that after scores of years under slavery accommodations had been made to fully level the playing field for former slaves and their progeny economically and providing them with the rights that non-slaves had, including the right to vote. Imagine if Native Americans had full liberty to the extent of the non-slaves. Imagine if back at the time of the Constitution and the Vill of Rights the substance of the 13-15th As had been incorpprated. Of course this didn't happen. Were the hearts and minds of the Founders/framers able to commit to this? I don't think so. It would be only a guess what full liberty for all back at the beginnings of America would have done for America's growth. But on the humane side, the Civil War might have been avoided.

So maybe we should look to the future starting here and now to provide full liberty - and justice - for all going forward, recognizing the need to level the playing field along the way. FDR's 1944 new Bill of Rights might be a good start.

By the Bybee [expletives deleted], is our very own Mr. Myth going full Shakespearean on me with his "Parting ..." after all these years all of a sudden?

# posted by

Shag from Brookline : 5:01 PM

John Lennon.

# posted by

Joe : 10:45 PM

Before this thread is archived, I urge fellow progressives venturing into Balkinization to read Jack Balkin's draft essay on Constitutional Interpretation he posted on April 16, 2015. This essay is based upon lectures given by Jack in France in May of 2014. I have not finished reading reading its 30 pages (I'm up to page 14) as eye dilation interfered. But having heard Jack speak in the past, I distinctly hear his voice as I have been reading. (Larry Solum at his Legal Theory Blog gave Jack's essay his "Highly Recommended. Download it while it's hot!")

Those who have been following this and an earlier post by Sandy and the threads they have fostered on Article V will note that Jack takes up the difficult Article V on page 5 of this draft essay without mentioning Article V's alternative of Congress calling for a convention upon application of states, or of the ratification alternative of state conventions in lieu of state legislatures. Perhaps Jack did not want to confuse the French audience any more than he had to. Since Jack described this as a "draft," perhaps a footnote in final form might simply address this (assuming he did not do so in the remaining portion of the essay I have yet to read).

I would be interested in how the French audience reacted to Jack's lectures, comparing American constitutional law with that of France. Perhaps some comments - in English* - may be forthcoming in this regard.

*I took four years of French in Boston's public school system back in the 1940s but never spoke French fluently. After WW II, I recall Herb Shriner appearing on the Ed Sullivan Show with a comedy routine that focused on his military service in France during the war, uttering this classic line: "I spoke pretty good French until I ran out of Hershey bars."

# posted by

Shag from Brookline : 8:27 AM

Jack's lectures/essay includes interesting discussion on SSM.

# posted by

Shag from Brookline : 11:53 AM

I finally finished reading Jack Balkin's lectures/essay on Constitutional Interpretation. I anxiously await the French connection reaction. Jack's take on "cafeteria originalists" brought a smile to my face imagining the reactions of the French audience. And Jack's discussion of Brown v. Bd. of Educ. vis-a-vis originalism supports his constitution-in-practice theme. No, Jack does not dwell on Article V as does Sandy. And Jack explains the role of the judiciary well. All in all, reading Jack's lectures/essay was like enjoying a glass of fine port after the main courses earlier this week provided by Jill Lepore and Lord Sumption on the 800th anniversary [note to Gerard: round it up, this is show business] of Magna Carta.

# posted by

Shag from Brookline : 8:10 AM

When the Constitution fails.

The Fourth Amendment is now officially dead and fascism is very much alive in progressive Wisconsin.

http://www.nationalreview.com/article/417155/wisconsins-shame-i-thought-it-was-home-invasion-david-french

Please read this article and pass it on to everyone you know.

These kind of Gestapo tactics cannot be allowed to stand in the United States.

# posted by

Bart DePalma : 9:24 AM

"Progressive Wisconsin"?

Keep in mind the unprogressive performance of its Gov. Scott Walker recently "anointed" as the Koch-lite Republican candidate for 2016 with its "TIME MARCHES BACK" theme.

Is this another of our very own Mr. Myth's Chicken Little "THE SKY IS FALLING [repeat over and over] overreaction? IMAGINE.

# posted by

Shag from Brookline : 9:51 AM

Shag:

The Milwaukee district attorney, John Chisholm, who is leading this harassment campaign, is very much a progressive Democrat.

"Is this another of our very own Mr. Myth's Chicken Little "THE SKY IS FALLING [repeat over and over] overreaction?"

Calling out the illegal search of the homes and seizure of computers and telephones of political opponents based on warrants which do not offer any evidence of a crime is an overreaction?!?

Are you actually supporting this outrage or just do not care because your party are the perps?

First they came for the conservatives,
and I did not speak out—
Because I was not a conservative.

# posted by

Bart DePalma : 12:04 PM

I don't support outrages of any sort. But our very own Mr. Myth seems selective, suggesting that it was progressives in Wisconsin addressed by the National Review. I don't recall our very own Mr. Myth expressing outrage at this Blog regarding incidents in the former slave states - now the base of the Republican Party - that involved K-K-K-Katy type gestapo actions against African-Americans in their residences. Nor do I recall outrage by our very own Mr. Myth to police killings of unarmed African-Americans shooting them in their backs especially in recent news cycles that continue. (Maybe National Review has covered these other outrages as well as the one s described in its recent issue. If it did and our very own Mr. Myth was aware, why did he not express his outrage and urge others to pass them on.) No, our very own Mr. Myth is as usual highly selective.

I think that Wisconsin will address the outrages within its borders as more facts come out and that the subjects of these outrages will receive much more justice than so many victims n the old and new former Slave States' Jim Crow. I'm sure that Gov. Scott Walker, especially with his recent anointment as the Koch-lite Republican candidate for president, will push for justice.

But it should be pointed out that in the Wisconsin outrages unarmed persons were not shot in the back or elsewhere by the police.

But is it clear that politics was involved with these outrages in Wisconsin? Perhaps the Koch Bros. and their Koch-suckup-libertarians will attempt to ride these outrages politically for the anointed one to take America back to The Gilded Age.

It should be pointed out that in his day job, our very own Mr. Myth must be careful in expressing his views of police, as so many DUI cases are plea bargained. I assume his day job doesn't take him to Wisconsin, but he must be aware his views can be accessed by locals.

# posted by

Shag from Brookline : 2:59 PM

Shag:

What?

You are free to offer actual examples of Republican DAs and judges targeting African American political opponents for search and seizures with no evidence of criminal acts.

FWIW, I posted at other blogs that the police officer who executed the African American motorist should be tried for capital murder and subject to the death penalty himself. I have ZERO tolerance for criminal activity by law enforcement.

You are shoveling mounds of red herring.

# posted by

Bart DePalma : 3:49 PM

If I, as our very own Mr. Myth claims:

"You are shoveling mounds of red herring."

it's to cover up the olfactory vileness and stench he continues to spew.

FWIW, I don't know what other blogs our very own Mr. Myth contaminates other than his own. His recital of one incident at some unidentified blog(s) is a gratuitous drop in the bucket.

# posted by

Shag from Brookline : 4:21 PM

I recently somewhat jokingly referenced a SSM amicus brief that relies on Genesis 1-2. But, I would be interested in a good article that discusses original understanding of "natural rights," realizing there were various views.

# posted by

Joe : 10:41 AM

Joe, I assume you are looking for such an article on SSM issues. I don't know of any. I don't recall an outstanding recent article "that discusses original understanding of 'natural rights'." But you might be interested in Paul Kens' "Revision of Progressive Era History Continues" which reviews two (2) recent books written/edited by conservatives critiquing the Progressive Era. Kens discusses the reliance of many conservatives from the past and currently on "natural rights." In particular you might be interested in Kens' comments on David Bernstein at pages 523-4. The article can be downloaded via the Linda McClain post at this Blog on the recent Tulsa Law Review issue reviewing many recent books. The article is a short 13 pages. I was attracted to it by the title and wasn't disappointed.

"Natural rights" has religious over/under/tones, especially in more recent years. My impression is that history is not very definitive on "natural rights" in the timeframe of 1787-91.

And you might check out Jack Balkin's lectures/essay that I earlier commented on for his discussions of SSM.

# posted by

Shag from Brookline : 5:20 PM

Thanks. I am interested here about natural rights generally. I found a few things online and off.

# posted by

Joe : 6:07 PM

Joe, "human rights" may not differ that much from "natural rights." Larry Solum has a post at his Legal Theory Blog today with links to Michael J. Perry's "Human Rights Theory, 1: What are 'Human Rights'? Against the 'Orthodox' View" and " ... 2: What Reason Do We Have, if Any, to Take Human Rights Seriously? Beyond 'Human Dignity'" These are, respectively, 13 and 25 pages in length. I plan to read them into the weekend. "Unalienable," "natural" and 'human" rights may intertwine. Solum gives these articles his "Highly Recommended."

# posted by

Shag from Brookline : 10:02 AM

Yes, these words from my understanding tends to be vague and overlap, which is part of their charm.

"Both read the Bible day and night, But thou read'st black where I read white."

I was thinking about the overall concept -- a basic "natural right" for instance is the freedom of speech or to defend yourself. A "right" however has a certain flavor. It isn't just the raw "power" to do something.

After all, cats and dogs speak and defend themselves. Do they have "natural rights" to speak and to self-defense too? Some might say "yes." Dorf on Law, e.g., is a vegan friendly blog.

So, maybe "human" and "natural" rights are not totally the same thing.

# posted by

Joe : 10:22 AM

Joe, the Perry articles were quick reads. While interesting, their focus was on human rights in the international arena via efforts at the UN. The first article did quote Bentham on "natural rights" but neither article focused on "inalienable rights" and "natural rights" in American constitutional history.

I have in my library Henry Steele Commager's "The American Mind - An Interpretation of American Thought and Character Since th 1880's" Yale University Press, 1950. The index does not reference The Gilded Age but has several references to "natural law." I read this book over the summer of 1951; it was part of an undergraduate award I had received. Over the years I have reread portions. I just reread pages 199-210 of Chapter X "Lester Ward and the Science of Society" that discusses "natural law' with references to Herbert Spencer and William Sumner's views contrasted with those of Ward. This discussion provided me valuable background to Justice Holmes' dissent in Lochner.

While my eyesight problem makes the reading slow, I plan to go deeper in "The American Mind" in reflecting on subsequent events to date.

Via a Google search on Commager, I downloaded his May 2, 1970 New Republic article "Choosing Supreme Court Judges" that was most interesting, especially in looking beyond 1970 to date.

# posted by

Shag from Brookline : 10:32 AM

One useful resource was Carl Becker's book on the Declaration of Independence, which has a chapter on natural law theory.

In Lochner News, this week the "raisin case" was back to the Supreme Court (Horne v. Dept. of Agriculture).

Scalia at one point wondered if Congress had the power to interfere with the right to sell raisins in interstate commerce, differentiating it with blocking a more dangerous industry.

"I guess the government can prohibit the the introduction of
harmful pesticides into interstate commerce. I'm not sure it can prohibit the introduction of raisins."

Since this would still be the regulation of interstate commerce, is Scalia implying some natural right to sell raisins? Or, does Scalia have Nicholas Cage's copy of the Constitution that adds more words to the Commerce Clause once you add lemon juice to see the invisible ink?

Anyway, some like Bentham, are fairly scornful of "natural" or whatever rights, but I think in the right frame of mind, they speak to an important truth.

# posted by

Joe : 12:27 PM

Justice Scalia does not read the NYTimes. Probably neither do Justices Thomas and Alito. But perhaps CJ Roberts and Justice Kennedy do and have or will read William N. Eskridge, Jr.'s Op-Ed "It's Not Gay Mariiage vs. the Church Anymore" even if they haven't read his Amici brief in support of the petitioners in the SSM case before the Court that's up for oral argument on Tuesday. Might Roberts and Kennedy be impressed?

Eskridge notes well the matter of interpretation of the Bible as changing over many centuries. Our Constitution is only 2+ centuries old and there is a better record of the framing than with either the Old or the New Testaments. And there is a detailed record in recent years of social changes on the matter of SSM. Can the conservatives on the Court hunker down and turn a blind eye to such social changes in the manner of Gov. Bobby Jindal in his recent NYTimes Op-Ed? Even thought Justices Scalia, Thomas and Alito may not read the NYTimes, surely they are aware of Jindal's "faith-driven" desperate Op-Ed for momentum politically to enter the 2016 GOP Clown Car presidential campaign.

# posted by

Shag from Brookline : 8:43 AM

Back to natural law, yesterday I waded through my pile of recent unread downloads and noted Jonathan Crowe's "Natural Law Anarchism" in Studies in Emergent Order Vol. 7 (2014) 288-298, primarily a review of Gary Chartier's "Anarchy and Legal Order" (2013). There is apparently a "New Natural Law" perhaps comparable to changes in originalism. This short review contrasts John Finnis' views on natural law that relies upon the state with stateless natural law, to wit anarchism. There are two (2) pages of "notes" that I haven't read closely in search of "Old Natural Law" that might have influenced the Framers/Founders back in 1787-91.

Some define "natural law" as what we are born with, which is close to inalienable rights referenced in the Declaration of Independence, whether existing from the beginnings of humans or as having evolved, and perhaps continuing to evolve. But are these right universal?

Joe, Crowe's review has a take on "non-human animal rights" that you and Mike Dorf may be interested in.

Frankly, I find it difficult imagining in the current highly populated interdependent globalization world we live in how natural law anarchism would improve the lot of human and non-human animals, nor John Finnes' views on natural law with the state taking an important role. For me the problem is identifying natural law rights (and obligations?) and enforcement thereof by communities. Comparisons with the development of "common law" back in feudal times are inapt as the world has significantly changed since those days. Or should we look to the magic of Magna Carta?

# posted by

Shag from Brookline : 9:33 AM

William N. Eskridge, Jr. back in the mid-1990s wrote a book on same sex marriage. Good read.

Basically, I think it is a generally understood truth that certain things (like slavery) are wrong & we have a "right" to not suffer them.

Also, when determining "fundamental" rights or whatever, basic human ("natural") needs and qualities factor in. So, family life or control of health choices are more important than selling stuff. People have some basic respect for animals in that fashion to, at least to the degree they think we have some sort of basic obligations to them based on animals' basic needs. This is a sort of "right."

It is duly noted that past generalities, the details here are greatly debated. This was recognized back in Calder v. Bull (1798). Also, not an anarchist like some around here might be. But, some 'higher law' is mixed into our consciousness here. It is at least, to cite Benjamin Cardozo, a sort of background thing that fills the gaps.

# posted by

Joe : 11:36 AM

I'd add that "natural law" at times is appealed to by conservatives. Andrew Koppleman has, e.g., responded to a "natural law" definition of "marriage" that supposedly makes same sex marriage a contradiction in terms.

But, like religion overall (sorry Bobby Jindal), the concept has a broad range. Lincoln after all appealed to the DOI, including the basic right to liberty. He was realistic enough to know its "oughts" could not readily be put into service in the real world, but it still provided a guide.

This includes in ways that could be done, such as not expanding slavery to more territories. The Territory Clause leaves open both Douglas' and Lincoln's approach. An appeal partially based on natural law provides an obligation to choose one over the other.

The 13A provided a clear barrier there but "due process" and the 9A etc. continues to provide open-ended provisions. Would Sandy Levinson's amended Constitution add further light here, adding more guidance?

# posted by

Joe : 11:43 AM

Over at the Legal History Blog there is a post on Harold Bruff's new book "Untrodden Ground: How Presidents Interpret the Constitution." The Constitution does not specifically limit to the Supreme Court how the Constitution is to be interpreted. What does originalism tell us about this?

# posted by

Shag from Brookline : 10:41 AM

It's been several days since our very own Mr. Myth reported on the "outrage" reported in National Review on happenings in Wisconsin. For some updated info, check out the Milwaukee Sentinel Journal article by Patrick Marley "Scott Walker, prosecutors trade pointed swipes on John Doe" available at:

http://www.jsonline.com/news/statepolitics/in-iowa-scott-walker-raps-john-doe-connected-raids-on-supporters-b99488324z1-301309161.html

for information not disclosed in our very own Mr. Myth's outrage. It's not so cut and dried as recreational ganja in Mr. Myth's Mile High State (of mind). Courts are involved, including a Republican special prosecutor and possibly the Supreme Court at some point. It seems there have been six convictions of political people associated with Walker campaigns. Will Walker agree with prosecutors' requests for the release by local courts of information under seals of courts to better inform the public of what is involved?

# posted by

Shag from Brookline : 8:37 PM

And here's a link:

http://www.politico.com/magazine/story/2015/02/scott-walker-campaign-problem-115563.html#.VT7atyhOTHg

to Politico Magazine's cover "Scott Walker's Watergate?" by J. R. Ross.

Issues remain to be resolved with claims of "outrage" by National Review and echoed by our very own r. Myth.

# posted by

Shag from Brookline : 9:06 PM

A campaign regulation in judicial regulations was upheld today in an opinion by CJ Roberts.

http://electionlawblog.org/wp-content/uploads/williams-yulee.pdf

Note how he cites the Magna Charta, including a provision against "selling" justice. I guess by implication (sorry Zephyr Teachout) selling Congress seats is okay.

The opinion is partially about judges feeling they are special, that they are not "politicians." That is something of an artificial line, but it is not totally fictional. Judges are not the same as politicians.

More here:

http://electionlawblog.org/?p=72092

# posted by

Joe : 10:49 AM

Jack Balkin's 4/22/15 post (with video) "Is First Amendment Being Misused as a Deregulatory Tool?" focused on the speech/press clauses and in particular commercial speech. Joe's comment on "judicial" speech in a 5-4 SCOTUS decision is an example where regulation was narrowly upheld. The theme of the video and the debate should perhaps be expanded to address all clauses of the 1st A:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

There is of course Hobby Lobby and its developing progeny on the religion clauses. Over at Dorf on Law Buchanan has recents posts on lobbying. And the right to assemble has been much in the news perhaps starting peaceably and then changing.

The debate should focus on whether 1st A rights are absolute or subject to reasonable regulation. But is the 1st A being (mis)used as the tail to wag the dog?

# posted by

Shag from Brookline : 9:51 AM

The phrasing of the 1A (shades of Burt Neuborne's book) is notable. There is a "freedom of speech." Congress can not pass a law "respecting" an establishment of religion. It can't "prohibit" the free exercise of religion. etc.

Cf., e.g., Oregon's Constitution:

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

Or what is sometimes known as a "Blaine Amendment":

"No money shall be drawn from the Treasury for the benefit of any religeous [sic], or theological institution, nor shall any money be appropriated for the payment of any religeous [sic] services in either house of the Legislative Assembly."

The 1A language is more open to the current situation where money does go to religious institutions for certain reasons.

Zephyr Teachout's discussion on how in the late 19th Century the Supreme Court held paid lobbyists violated public policy and lobbyist contracts need not be honored in that respect is a telling example of history being selectively honored.

# posted by

Joe : 10:18 AM

This post has been "archived" by Parts 1 and 2 of Jack Balkin's interview of the Paulsens on their new book. I thoroughly enjoyed the interview and especially Jack's letting both Mike and Luke speak at length. I have the feeling that Mike has somewhat "evolved" over the years. The "Introduction" covers a lot of bases, including on judicial supremacy. While I may disagree with Mike's take on Roe v. Wade, my disagreement is on a non-originalism foundation. It isn't crystal clear to me that Mike is a pure originalist at heart. As I said, I think he has "evolved" over the years.

In an attempt to get back on topic, I assume Sandy disagrees with some of the Paulsens' conclusions on changes to the Constitution, in particular Article III.

# posted by

Shag from Brookline : 9:52 AM

Listened to the latest video with the comments about originalims, South Africa etc. Sort of tired about originalism, but Prof. Balkin's basic summary of his position were helpful & the comparative law materials interesting. Useful to compare our system with others.

# posted by

Joe : 4:22 PM

Joe, I too enjoyed the latest video. The young lady's comparatives discussions were great. I wish Larry Solum had been challenged on the fixation thesis, especially when it concerns the new originalism's construction versus interpretation. As to the short question period, the mikes apparently didn't work too well in understanding the questions being asked.

By the Bybee [I was reminded by Jeb Bush's flip-flopping, so expletives deleted], the host for the video, Richard Albert, has a very interesting article "The Unamendable Core of the United States Constitution" that is a great read. The "core" primarily focused on is the 1st A. And the article looks at comparative more recent constitutions on the subject of unamendability, both formal and informal. If Sandy were to get his second Constitutional Convention, I wonder how this issue might be addressed?

Also, we have had a few exchanges on "natural law." In this regard, I just finished reading Andrew Stumpff Morrison's article "The Uncertain Relation Between Coherence and Renown: Ronald Dworkin Reconsidered" addressing positivism and natural law, harshly critiquing Dworkin. Dworkin was to a great extent a legal philosopher, of renown, whom I admired. But the critique, though overly harsh at times, is most telling. During the Q & A on the recent video, apparently one of the audience questions was addressed to Jack Balkin and related to some differences Jack may have with Dworkin's views. Unfortunately, Jack's response did not explain the background. I bring this up because I attended a seminar at BU Law School several years ago on Dworkin's "Hedgehog" book. During that seminar's Q & A I asked Dworkin a question dealing with originalism in relation to his then new book and he responded in effect that he did not want to get involved with originalism. Although this post has been archived, perhaps someone who knows a bit of any dispute Jack has with Dworkin may respond. (Maybe I'll try a little Googling.)

# posted by

Shag from Brookline : 9:23 AM

This comment has been removed by the author.

# posted by

Joe : 6:23 PM

I think I located the Dworkin issue I raised. Jim Fleming, the moderator of the panel that included Jack Balkin in the video posted by the latter, participated in a 2011 conference on Jack's "Living Originalism," with his paper "The Balkinization of Originalism," bringing into play Ronald Dworkin. Fleming, a big fan of Balkin and a big fan of Dworkin, "annoyed" Balkin with comparisons of "Living Originalism" to writings of Dworkin. The paper is a short 14 pages and well worth a read. Fleming is not an originalist. Nowhere in his paper does he employ the term "natural law." (As to footnotes, I did not review them with care in this regard.) So it is not clear to me how "natural law" comports with originalism of any stripe including Balkin's. Fleming makes frequent reference to "moral" in comparing Balkin and Dworkin.

In the video Balkin did not seem "annoyed" with the Dworkin reference. But there may be more to the story than Fleming's paper. In my readings of articles on originalism I have not noted specific emphasis on "natural law." Are many forms of originalism on the positivist (Oliver Wendell Holmes, Jr.?) side of law rather than the moral side?

# posted by

Shag from Brookline : 8:19 AM

Balkin at some point seemed to get into thing "originalism" framing to take it over on the living constitution side. Shades of "we are all affirmative action babies now" or whatever.

Dworkin might have find that silly, since as you say, he wasn't into originalism. From my reading of him -- I didn't read his more abtruse stuff but thinks like "Freedom's Law" (collection of essays) gave me a taste (including his time as a law clerk to Learned Hand). Balkin noted about we need to recall the times Dworkin developed his views (though he had them to his death a few years ago) and Balkin apparently thinks given originalism is more dominant now (give years of the Roberts Court etc.) that his path of using originalism is more appropriate.

# posted by

Joe : 9:43 AM

I think Jack Balkin has evolved over the years and continues to do so. It could be said that perhaps Balkin has built upon Dworkin, whose "moral" views may be addressed by "Living Originalism" when it pertains to construction as distinguished from interpretation of the Constitution. Balkin's interview recently posted on "Jefferson Rules" is very telling, to me in this regard. (By the way, I appreciated the manner in which Balkin tied-in Sandy Levinson's views to the interview.)

I'm in the process of reading Balkin's recently posted essay. It is dense reading because of eyesight issues but also because it is aimed at philosophy of constitutions, not (so far at least) on our Constitution. His comparisons of "skyscraper" constitutions with "framework" constitutions address the matter of the need for "constructions' with the latter but not with the former, and the differing roles of judges with each type of constitution. As yet he hasn't focused on originalism to any great extent (although he has mentioned his "Living Originalism" in footnotes), and no tie-in to the "new originalism's" interpretation/construction distinctions. Nor has he yet identified an existing constitution that would fit his "skyscraper" model.

So I'm not critical of Balkin because he may disagree with some of Dworkin's views, as I'm sure that as a progressive Dworkin has had some influence on him. As I've noted too many times, progressivism is three steps forward, one or two steps back, basically moving forward. I was impressed with the author of "Jefferson Rules" in his responses, especially his views on the Founders' venerations that continue today.

# posted by

Shag from Brookline : 3:33 PM

The book looks interesting and since my library has it, I will check it out. Disagreement among friends is fine. Balkin seems to have the "building" metaphors in high gear there.

# posted by

Joe : 12:50 PM

Jack Balkin's philosophical essay is getting more interesting as it discusses distinctions between interpretation and construction, using examples from our Constitution's history. I'm about 2/3rds through this 27 page essay and note that it has few footnotes compared to "usual suspect" legal articles. I have yet to come across emphasis on originalism here in America, perhaps because the audience of philosophers leans universal.

To shift further "off-topic," Mark Graber's post "On Elephants" provides a nice light touch of humor that gives new meaning to the "Ivory Tower" in which he toils. But humor is subject to interpretation/construction as is constitutional text. We know elephants are an endangered specie, including as the symbol of the GOP. So discerning Graber's intent is not simple. But it can be fun speculating. Perhaps Graber brings in the elephants to augment the 2016 presidential campaign spotlights on the GOP Clown Car under that mythical huge GOP tent, but that tent lacks a high- wire act. Anyway, thanks, Mark.

# posted by

Shag from Brookline : 8:28 AM

Back to Jack Balkin's philosophical essay, part VIII, "The Framework Model and Law as Integrity" on pages 18-21 spells out Balkin's differences with Ronald Dworkin. Balkin's audience of philosophers is probably familiar with Dworkin's views. Dworkin was a giant who built upon other giants, and Balkin in my view builds upon Dworkin. Times change. Giants change.

# posted by

Shag from Brookline : 10:08 AM

I finally finished Jack Balkin's philosophical essay. While it was slow reading for me because of eyesight issues requiring frequent use of a magnifying glass, it also took a while to adapt to a writing by Balkin that is not aimed directly for a legal audience. Balkin does a great job with this essay for the audience it was addressed to. But it is also great for Balkin's usual legal audience. He briefly references originalism but does not go into originalism in great detail, including its evolving history. His audience may raise eyebrows respecting the discussion on Ronald Dworkin. But Balkin's critique is not harsh. As I've noted in earlier comments, in my view Balkin has built upon Dworkin as changes politically and otherwise have developed, i.e., constitutional law continues to evolve (as has originalism).

Balkin's audience for this essay may appreciate this from the second paragraph on page 24 concerning his 11 modalities of constitutional argument and the actors involved (all of us?):

"To be sure, lawyers and judges will probably be most proficient at making arguments from doctrine and judicial precedent. Indeed, lawyers may tend to conflate constitutional argument with judicial precedents because of their professional training. They have a natural interest in monopolizing the task of constitutional interpretation by maintaining that it is only for those professionally credentialed. But that is precisely why the multiple modalities of argument are important."

Since Balkin described this in his post as a draft, a couple of housekeeping points that hopefully will be brought to his attention:

1. On page 23, the penultimate paragraph closes with footnote 27. But there is no footnote 27 on that page (or the next page).

2. On page 25, part XI perhaps should be X, as I could not find a part X following part IX.

By the way, Larry Solum at his Legal Theory Blog posting on this essay gave it his "Highly Recommended."

# posted by

Shag from Brookline : 5:17 PM

I'm reading the new book of the author interviewed here:

http://balkin.blogspot.com/2015/05/the-jefferson-rule-interview-with-david.html

The book starts with the creation of "the" founding vision (Jefferson won the first battle) and how antebellum times were a period of great change but a full ability to deal with it was harmed because of a connection to the past. A problem being that an honest accounting would show there was no "one" vision -- there was a conflict from the start.

So, John Quincy Adams tried to think big but was rejected as not loyal to the Jeffersonian vision. Jackson was an innovator of party politics and other things but also could not truly admit to being so given this "constitutional faith" to use a term of Prof. Levinson.

There was an "interregnum" while the Civil War and its aftermath seemed a time too different from the Founding Era for that time to be seen as applicable. Lincoln provided something of a bridge: he spoke (shades of Balkin?) of certain founding principles that only in time would be put in place. So, slavery was a necessary evil, but in time equality would thrive.

The return of "The Jefferson Rule" began in the 1920s with Harding using it as a way to further his "return to normalcy" with the Lincoln Memorial as important. It also was used to combat FDR but he in return used it (Gerald M. has written about this including his use of the BOR) to promote the New Deal.

I have not read the rest but he later covers Reagan, the Tea Party etc. The book is decent but as someone who read a decent amount touching upon this ground a lot of it doesn't really add much. And, since he has to cover so much ground, it adds to a feeling of "yeah okay, knew that." So, vignettes here and there are the most interesting. For instance, John Quincy Adams showing his message to Congress to his Cabinet.

I, of course, agree with his overall thesis here myself and as a whole it's a useful volume, more so for those somewhat less knowledgeable of the events. Some of them might feel a desire to skim. He also has a book on religion history in the U.S. and I will also check that out.

# posted by

Joe : 10:19 AM

I read some more. The sections on FDR and the rise of Reagan are interesting. The FDR section shows how he adapted to Liberty League opposition by appealing to the Founders and (like Jefferson et. al.) framing his opponents are in effect traitors to them ("economic royalists" etc.).

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