Brian's closing sentence:

"Unfortunately, there will be many opportunities to do this in coming years."

with its first word, assuming its not n error, suggests many problem in coming years that will require survival. Sandy has commented on this at this Blog. But that was before the events of just the past two days, about 110 days into the Trump presidency. As to survival, I mean the survival of American democracy. The Pledge of Allegiance to the Flag closes with " ... and justice for all." Progressive must continue to focus on justice.



 

"Above all, American society must transform to become genuinely progressive."

So, you're saying that Democrats are only capable of caring about the rule of law if it's laws they made? That, so long as there are laws they don't like, OF COURSE they're not going to value the rule of law? The rule only matter if you win under them?

What an ugly concession. But, honest, I'll grant you that. The public perception that only Republicans actually value the rule of law, and can be expected to follow it even against their own interest, really is true...
 

Bret,

Your did not get my point. It has been easier for conservatives to champion the rule of law because law and judges by and large comport with conservative views. That is not to say, as you do, "Republicans actually value the rule of law, and can be expected to follow it even against their own interest..."

We will know whether this is true only when law and judges are no longer largely conservative--then their commitment to the rule of law will be put the the test. There are reasons to be skeptical about the depth of this commitment. For example, Meese was explicit about advocating "originalism" because the results would align with conservative positions. Another example is that conservatives were strong proponents of "judicial restraint" during the Warren Court era, but dropped this as an important value when the judiciary became more conservative owing to systematic ideological screening for appointments.
 

I appreciate the professor's reply though think "law and judges by and large comport with conservative views" is at least somewhat exaggerated. Depends on the law; depends on the judges. The conservative criticism of judges by now is not atypical. etc.

At times, the rule of law overlaps with progressive values. At times, it is a matter of what sort of "law" mattered. During the Progressive Era, e.g., "the law" often was seen as property rights. Non-conservatives did not think the "rule of law" was consistently followed in respect to various liberty and equality interests.

So, it's partially definitional.


 

Brian's comment referenced originalism and Ed Meese. The originalism movement and the establist of The Federalist Society beginning in the 1970s and operating in tandem demonstrate the post-Brown v. Bd. of Educ. effectiveness of the conservative movement that prevails today. While few today directly challenge Brown anymore, that was an early foundational decision of the Warren Court that was the foundation of that coordinated conservative movement. (Over at the Faculty Lounge Calvin TerBeek's post "Was Originalism Born in Sin?" provides some interesting observations on the history of originalism.) But Brown "inspired" this conservative movement, although current day Federalist Society members, mostly libertarians I understand, might not accept this. Keep in mind Nixon's 1968 southern strategy that extended to Reagan and Republicans that followed as well as the "populist" Trump campaign supported by white supremacist groups, not to mention fairly recent Court decisions watering down voting rights under one of the Civil Rights Acts of the 1960s that many former slave states promptly picked up on making voting by certain minorities more difficult . It was the post-Brown civil rights movement that switched once southern Decocrats to the Republican Party.
 

Thanks for the reply!

So, to amend that, we know that liberals, by and large, do not value the rule of law, but conservatives have not been tested, because the law is conservative? They may be no better, for all we know? True enough.

But it still seems to me that your prescription in the final paragraph is akin to saying that crooked umpires would be honest if the team they're partial to were genuinely winning. Is this really a serious answer to the problem, that somebody who doesn't share that partiality could be expected to accept?

I think not. Being a good judge requires actual impartiality, not just a string of cases that fortuitously match your bias.


 

I'm not sure I accept the premise. The most invoked example of judicial lawlessness in the service of ideology is 'Lochnerism,' and that's named for the era of conservative justices blocking Progressive measures by making up extra-textual doctrines. The progressive movement literally 'made its bones' denouncing that now archetypical judicial lawlessness.
 

Shag, good points. I'd add the Goldwater campaign, which drew a lot of support, and is often credited with the birth of the modern libertarian movement, via Goldwater's opposition to the Civil Rights Act. It's interesting, isn't it, that opposition to Jim Crow-which involved restrictions on virtually every 'negative Liberty' libertarians purport to revere-didn't spark the ignition of their movement, rather it was opposition to a measure created to kill Jim Crow, because it was said to tread on some negative liberties.
 

The conflict over the rule of law is ideological, not partisan.

Classical liberals use the rule of law to limit government and hold our political class accountable.

Like socialists and fascists, progressives believe in unlimited government to advance their preferred government directions of society and the economy. Thus, they are ideologically at war with the rule of law. Progressives will ALWAYS place favored policy (which they often frame as some form of "justice") above the neutral enforcement of the law as written. Progressives only cite the rule of law when the law at issue protects their favored policy.

No sophist counter narratives can change those basic facts.
 

"we know that liberals, by and large, do not value the rule of law"

Well, I don't know this, but perhaps the professor is arguing differently.

Anyways, there is this: http://content.csbs.utah.edu/~dlevin/conlaw/tamanaha-rule-of-law.pdf by the professor, which might help.

"The rule of law, at its core, requires that government officials and citizens are bound by and act consistent with the law. This basic requirement entails a set of minimal characteristics: law must be set forth in advance (be prospective), be made public, be general, be clear, be stable and certain, and be applied to everyone according to its terms. In the absence of these characteristics, the rule of law cannot be satisfied."

I would argue it is quite possible to be critical of judges and support certain means of removal (such as recall, impeachment, elections) without challenging the rule of law itself. The judges might be incompetent, tainted and so on. Again, along with ideological bias, surely today conservatives are involved here. Repeated cases of each involved conservative movements.

The article linked in the original discussion also to me warrants a bit of pushback. Progressives, e.g., are said to criticize "conservative judges for serving the rich and failing to do justice." What is justice if not in part a rule that applies "to everyone," the rich and the poor? If they are merely "serving the rich," they are not follow the rule of law. They are being partial.

The article also argues in a way that, without trying to answer it completely in a brief comment, is using terms in a certain nuanced technical way. "Justice" is clashed with "law," but to me the two overlap. For instance, the Constitution is the "law of the land." The Preamble says that one function of it is to "establish Justice." We have a "Justice Department" in fact that I assume enforces "law."

The implication of some that "pragmatic" justices like Breyer don't value "the rule of the law" to me is suggested to mean they are merely making policy, not loyal to the law as such. But, "law" is being given a curious restricted meaning there. In his opinion, he actually is more loyal to the law of the land, balancing various things. Law is not completely 'stable' either. It is a matter of degree.

At the very least, I think there might be some confusion of terms here. It reminds me of what Dahlia Lithwick once called "law plus." But, it confused me then too.

http://www.slate.com/articles/news_and_politics/jurisprudence/features/2005/confirmation_report/getting_to_lawplus.html
 

Mr. W:

I would recommend you read David E. Bernstein's Rehabilitating Lochner: Defending Individual Rights against Progressive Reform
 

I've read enough of his posts on Volokh to know not to waste my time on that. Besides, that libertarian's embrace of the archetypical example of judicial lawlessness supports my point while undercutting yours. Self professed classical liberals are just fine with making up extra-textual doctrines to enact their favored policies over the law as written, in fact the shtick is named for their infamous example of doing just that!
 

Mr. W:

Your intellectual incuriosity is hobbling. My bookshelves are filled with the works of socialists, fascists and progressives as well as classical liberals and free market economists.

IMHO, Bernstein makes a good philosophical case for Lochner, but not a convincing textual case. While the Founders did indeed believe in the right to contract, they provided it scant protection in the text of the Constitution.

If you read those you disagree with for no other reason than to understand their thinking, you are far more likely to prevail in a battle of ideas.

Know your enemy and know yourself; in a hundred battles, you will never be defeated. Sun Tzu.
 

Like Joe, I can't agree with either premise. I think it confuses rhetoric for reality. In rhetoric, conservatives tend to say they "just apply the law" and that they're "originalists". Both statements are fundamentally dishonest. They're pretenses asserted to cover conservative political doctrine masquerading as law.

On the liberal side, Joe correctly suggests that justice is a proper goal, and more to the point, it's a proper goal for the law. Law without justice is not law, it's tyranny. So when liberals argue for justice, they're supporting an essential condition precedent for law.
 

I would recommend people read "A Tale of Two Lochners" by Victoria Nourse.

Prof. Bernstein engaged with Prof. Nourse & sensibly signed a letter against her being filibustered, when Obama nominated her to the court of appeals. Didn't work.

http://scholarship.law.georgetown.edu/facpub/999/

Some myths involved with Lochner. Bernstein furthered some on his own.



 

Shag,

There are two kinds of originalists (at least): those who genuinely believe this is the right way to interpret the Constitution consistent with rule of law values (Solum for example), and those who see it as the best way to achieve their conservative goals (Meese for example).

Brett and Bart,

I'm a progressive--and I wrote a book On the Rule of Law that reaffirms the value of this ideal. So this is not about conservative are pro rule of law and liberals don't care. It's about who recognizes the essential importance of law to a well functioning society, or politics uber alles.

Mista,

My premise is that law and judges have largely been conservative in the course of US history. Slavery was legal, as was Jim Crow, the Chinese Exclusion Act, etc. (laws), and then there is Dred Scott, Plessy, Lockner (judicial decisions), and so forth. Of course, there are progressive laws (voting rights act) and progressive decisions (Brown). My point is that conservative positions dominate and progressive are often challenging the law in the name of justice rather than defending it.

Joe,

I agree with your comments. It is complicated. The key idea behind the rule of law is the commitment to apply the law as written, whether or not one agrees with it. Or resign. And if the law is bad, it should be changed, rather than undermined through manipulative judicial interpretation.

Brian
 

Brian: I'm a progressive--and I wrote a book On the Rule of Law that reaffirms the value of this ideal...The key idea behind the rule of law is the commitment to apply the law as written, whether or not one agrees with it. Or resign. And if the law is bad, it should be changed, rather than undermined through manipulative judicial interpretation.

That is a very classically liberal point of view. Are you sure you are a progressive?

Progressive lawyers and jurists have spent roughly a century declining to apply the law as written and instead rewriting it through manipulative judicial interpretation. Rarely a day goes by here at Balkinization when one of your colleagues does not suggest a manipulative judicial interpretation of the law to advance some progressive policy.
 

Thanks.

"Slavery was legal, as was Jim Crow, the Chinese Exclusion Act, etc. (laws), and then there is Dred Scott, Plessy, Lockner (judicial decisions), and so forth."

Complicated indeed. Slavery was legal but conservative Justice Benjamin Curtis dissented in Dred Scott v. Sandford. :) Anyway, thanks for allowing comments.
 

Conservatives have also "declined to apply the law as written." Although the 15th Amendment gives Congress the power to enforce the voting rights regardless of race or color, CJ Roberts' opinion overturning preclearance in the Voting Rights Act relied on the edifice of words in earlier court opinions rather than the fundamental law of the Constitution. The resulting quite consequential election chaos was foreseen.

Since his party benefits when fewer have the franchise, was this not conservative sophistry in the service of politics, declining to apply the law as written?
 

"In rhetoric, conservatives tend to say they "just apply the law" and that they're "originalists". Both statements are fundamentally dishonest. They're pretenses asserted to cover conservative political doctrine masquerading as law."

I believe the OP covered this viewpoint:

" But these responses merely reiterate the progressive view that judging is politics (aimed at conservative judges), reinforcing the conservative narrative that the views of progressives undermine respect for law and judging. And let's face it, lots of progressives really do believe judging is politics, and they think conservatives who deny this are either deluded or lying (whether cynically or the Noble Lie)."

I would simply observe that, if you're going to be doing something facially wrong, it does salve the conscience somewhat to think that doing the right thing is impossible. When you're doing evil, it helps to think your opponent an even greater evil, because the worse you believe your opponent to be, the worse you yourself can be, and still think yourself better.

I would say that impartiality is one of the most difficult things humans ever attempt, and nobody is going to be successful at it all the time. But if you start out by rejecting it even as a goal to aspire to, you'll be even less successful at it...
 

Perhaps Brett can explain the "impartiality" of Justice Taney and the Justices concurring with his opinion in Dred Scott, what with their having been slaveowners. Or were they being "evil"? And can Brett explain the "impartiality" of judges, justices upholding Jim Crow laws. Or were they being "evil"? Or does Brett believe that that hese justices/judges were doing something facially wrong" or perhaps "something facially right"? And, has Brett ever attempted "impartiality"?

By the Bybee (expletives deleted), while Brett may be qualified to build bridges to nowhere, that's where his concept of "the rule of law" would lead to. Yet another analogy by Brett has been exposed as irrelevant. Nice try, Hemlock.
 

Back to the subject of originalism, over at the Legal Theory Blog there is a post on R. Randall Kelso's:

"Pace Scalia, Thomas, and Gorsuch, a True Originalist Theory of Constitutional Interpretation Would Adopt the View of a Living Constitution, Not a Static or Fixed Constitution"

setting forth the abstract. (The article is 40+ pages.) But I noted that that Blog's Larry Solum did not provide an editorial comment as has been his custom when originalism is challenged. Kelso concludes that originalism in effect comports with living constitutionalism; the abstract doesn't reveal any connection with Jack Balkin's "Living Originalism."

But originalism is tied into the them of this post. And the originalism movement came about years after I completed law school in 1954. As to Bernstein's views on giving conservative mouth-to-mouth on Lochner, I'm reminded of Jack's article to the effect that Lochner was wrong then and wrong now. Conservatives keep on reviving the Lochner Monster, a remnant of the late 19th century The Gilded Age.
 

Shag, at times your obsession with linking anyone who disagrees with you to racism gets tiresome. At other times it's even more tiresome.

Try to remember for a moment that Taney was a Democrat.
 

This comment has been removed by the author.
 

As Mark Field said, I don't really accept the premise here, likewise not agreeing with Prof. Segall at Dorf of Law that Supreme Court justices aren't really "judges."

Mark Field's comment isn't convincingly answered by quoting the OP anyhow. Brett's answer also assumes the premise. Progressives, by the telling of the OP, criticize what they deem a myth. Brett then assumes they are "doing wrong" here or doing "evil" etc.* But, of course, if you don't accept his premises, progressives aren't doing "evil." They also are providing a more honest accounting of how the law actually works.

I don't think the best argument here is that judges shouldn't be "impartial." It is not as if progressives oppose judicial ethical rules that require judges to not take part in cases where they have a direct interest such as investments in a firm. The argument is more just as Brett says. There is going to be some partiality and it is foolhardy & in fact mythical to deny it by appealing to originalism or whatever, that in practice is shown not to do what the supporters claim.

And, try to remember party platforms have changed over the years.

---

* This is more a conclusion of his overall views than words in that specific post that can apply to all sides.
 

The difference between progressive and "conservative" jurists rewriting the law under the guise of judicial interpretation is the difference between ideology and corruption.

Progressives believe as a matter of ideology that the law should give way to progressive policy.

"Conservatives" who rewrite the law under the guise of judicial interpretation are corrupt. When you posses the power to impose your own policy preferences under the guise of judicial interpretation, it is difficult to resist the temptation to exercise that power to advance or protect the laws you prefer.

Power tends to corrupt, and absolute power corrupts absolutely. Lord Acton

We need to start seriously considering constitutional checks and balances on the power of judicial interpretation.
 

"But, of course, if you don't accept his premises, progressives aren't doing "evil." "

You might want to ask yourself if not wanting to think you're doing evil isn't a major driver for rejecting the premise.

Like I said, if you don't want to do something, there's always going to be a temptation to rationalize that doing it was impossible.

And thinking your foe horribly evil is empowering, because it frees you to do "lesser" evil and still think yourself good by comparison.

I think that's a major contributor to the tendency of Democrats to view people like Trump as Hitler level evils; That gives you an enormous amount of room to do things that are questionable and think yourself justified.
 

"Your intellectual incuriosity is hobbling."

Bart, I actually enjoy reading good conservative work. I think my favorite book of jurisprudence is still Bork's The Tempting of America. But I read Bernstein regularly on Volokh, where he comments on Lochner a lot, and it's pretty weak sauce. I'm not going to waste my time reading his expanded weak sauce on the subject. There's a revisionism on the left and right that delights in seeing how much commonly accepted history and sense can be confounded. It's a bit juvenile imo.

As you concede, the right to contract has no basis in text but exists as a 'philosophical' point. That is, political philosophy. Reading one's political philosophy into the law as written is exactly what we're talking about, and it's why Lochner is the archetypical example of jurisprudential lawlessness for ideology's sake. And we know what side the Progressives were on in that fight, which is my point.

"Progressive lawyers and jurists have spent roughly a century declining to apply the law as written and instead rewriting it through manipulative judicial interpretation."

There are problems with this view. For one, one man's 'manipulative judicial interpretation' is another man's traditional common law methodology of making the law as written 'work' for a society of a different time with different conditions. Secondly, I just don't buy the premise that this is some Progressive thing. The most egregious examples of 'judicial lawlessness' involve more than 'manipulative judicial interpretation' and border on 'making stuff up.' The Right has a case to be made when they point to the Right to Abortion (via the Right to Privacy) as a prime example. But what's ignored is the precedents that are the foundation for the Right to Privacy/Abortion come from...the most 'classically liberal' Court we've had in our history (the Court that decided Pierce and Meyers, and later Lochner). There's been times when each side has firmly embraced 'making stuff up' to achieve their political philosophy outside the text.


 

Brian,

I don't think it's helpful to include judicial decisions as data here, especially ones that seemed, even at the time to so many, to be 'lawless' in the sense of involving heavy to beyond 'manipulative judicial interpretation.' As I said, when people today talk about the 'rule of law' being eroded, those on the right point to judicial examples such as Roe or Ogberfell as examples. Whatever the correctness of that critique, as Bork noted long ago the archetypical examples of that were committed by *conservative* courts, with Progressives at the time railing against them as examples of judicial lawlessness.
 

Mr. W:

Allow me to clarify.

Bernstein does an excellent job dismantling the progressive mythology (to which you subscribe) that the Lochner Court invented the right to contract out of whole cloth to advance a new Industrial Age economic theory. In fact, Lochner reflected the classical liberal beliefs of the founders and a long line of previous cases.

This is why I recommended the book to you.

As an original meaning textualist, my response to the book is: "So what?" Point to the provision of the Constitution which protects the right to contract.

FWIW, to my mind, the Ninth Amendment enforced against the states by the 14th Amendment is a good candidate.
 

"Shag, at times your obsession with linking anyone who disagrees with you to racism gets tiresome."

Race and racism just are salient features in our history and politics Brett. Lately the conservative movement seems willing to gaslight itself into being obtuse on this point, but it's a reality. From the original Constitution (with its 3/5ths, fugitive slave, etc., provisions) to the historically defining Civil War (and subsequent Reconstruction Amendments) to the recent political realignment, there sits race as the elephant in the room for each.

"Try to remember for a moment that Taney was a Democrat."

This is a profoundly stupid thing to say. Stupid because it fails to understand how American political parties, which are not inherently ideological (they are both named after general democratic platiduinal concepts, unlike in the UK where the names of the parties themselves signify meaningful ideological positions [conservative, labor, etc]), change their ideologies over time. The Radical Republicans instituted unprecedented federal government social welfare spending and programs during Reconstruction while the Democrats at the time argued these were wasteful, unconstitutional and involved reverse discrimination against whites. A century later, a Democratic President who had just defeated a Republican candidate who decried the measure as a violation of state rights and individual liberties signed a federal public accommodations law while starting to embark on a federal 'War on Poverty.' It was once the Democrats who were the party evangelicals flocked to (William Jennings Bryant), now it is the Republicans. It was once the Democrats who railed against protectionism (they wanted to export their cotton after all) while the GOP defended it, that changed for decades (look at the NAFTA House vote) and now seems to be changing back again! Arguing as if historical Democrats and Republicans tell us much about current ones is profoundly stupid.
 

"I think that's a major contributor to the tendency of Democrats to view people like Trump as Hitler level evils;"

Which party recently questioned whether people in 'blue' areas were 'real Americans' after all? Which had chants of 'locking up' the other parties candidate at their rallys? Which charged that the President of the other party wasn't really born where his birth certificate said, that he was *really* a Muslim, etc?

Self awareness.
 

BD: "Progressive lawyers and jurists have spent roughly a century declining to apply the law as written and instead rewriting it through manipulative judicial interpretation."

Mr. W: There are problems with this view. For one, one man's 'manipulative judicial interpretation' is another man's traditional common law methodology of making the law as written 'work' for a society of a different time with different conditions.

In my posts here, I have often compared progressive judicial philosophy to a form of common law. The problems are that that the federal judiciary is subject to the limits of our written constitution and enjoys no power under the Constitution to enact common law. Thus, the progressive abuse of the power of judicial interpretation.
 

"and a long line of previous cases"

Yes, I know that's his argument, he's made it on Volokh many times. To the extent there's any credence to it, it cuts against you and for me here, it shows that there's a significant history of non-progressive, in this case 'classically liberal,' judges more than willing to make up extra-textual judicial doctrines to achieve their political philosophy via the law.

There's a tradition out there of people writing books from what were essentially article length premises. I'm not wasting my time on the former, but I seek out the latter from all kinds of ideology. I'm no stranger to Bernstein's work.
 

"You might want to ask yourself if not wanting to think you're doing evil isn't a major driver for rejecting the premise."

That was my point about conservatives in my original comment. They offer pretexts because they don't want to admit that they're enacting conservative policies through the judiciary. Their explanations are about as convincing as Trump's for firing Comey.

Perhaps I should have put it more succinctly: Brett, the caller is inside your house.
 

Bart,

The main, maybe the only, way of interpreting the law that the law-savvy Founders knew of was the English common law tradition. They wrote a Constitution in broad terms. I don't buy that they didn't foresee, and intend for, the Constitution to be interpreted in the only method they were steeped in.
 

Brett should try to remember that Lincoln was a Republican. But the Republican Party of today long ago ceased to be the Party of Lincoln.

Brett chose the use of "impartiality" and "evil" and "facially wrong" that I had commented on. But Brett's response was Trumpian, avoiding answering the questions I raised.
 

I think "the right to contract" is appropriately deemed to be a privilege of citizenship or a "liberty" or something protected by the 9A.

The Contract Clause does explicitly touch upon it though doesn't settle the question. The freedom to contract with others was, however, part of the "free labor" aspect of the Republican Party, the people behind the Thirteenth and Fourteenth Amendments. But, it is contracts with regulation. I think Justice Harlan's dissent doesn't get enough attention in this respect. See also, my citation of Nourse's article.

Mark Field's reply to Brett is helpful. Brett sets forth basic premises that work both ways. So, we have to look at the facts and see what they lead to. And, progressives were correct that there was a fake claim of impartiality, "the rule of law" not just about certain types of property rights, for example.

I also don't think it useful, though Brett is a lousy prophet, to use things like "evils akin to Hitler." I don't think Trump is doing things akin to Nazi Germany. He is doing many very bad things. This doesn't justify any response, though again, when the people Brett leans toward do the exact thing he accuses Democrats of [such as using secrecy since allegedly Democrats will just abuse openness], he's a bad prophet.


 

SPAM now describes himself: "As an original meaning textualist ... " to distinguish himself from an originalist? How does SPAM determine/decide upon the "original meaning" of the text? Does he transport himself back to those times unbiased?
 

Shag might find this interesting if he did not read it already:

http://www.fed-soc.org/publications/detail/does-the-fourteenth-amendment-protect-unenumerated-rights

It's about 11 pages and is somewhat germane to the comments.
 

Joe, you're playing by rules these folk have left behind long ago.

"Thou art but too good a fellow, Joe," to paraphrase Melville.
 

Mr. W: The main, maybe the only, way of interpreting the law that the law-savvy Founders knew of was the English common law tradition. They wrote a Constitution in broad terms.

You can make this argument for the handful of general terms like "due process," "unreasonable searches and seizures," and "Excessive bail [and] fines," and "cruel and unusual punishments." These are invitations to the courts to define these terms which generally apply to judicial process.

The vast majority of the Constitution is quite categorical and expressly prohibits most of the progressive project. This is why progressive jurists must rewrite or erase these categorical limits to advance progressive policy.
 

Shag: SPAM now describes himself: "As an original meaning textualist ... "

Now and always.

...to distinguish himself from an originalist?

Precisely. I share Scalia's critique of the originalist snipe hunt for parol evidence outside of the text of the law.

How does SPAM determine/decide upon the "original meaning" of the text? Does he transport himself back to those times unbiased?

Original meaning is hardly a new or alien concept. This is centuries old Anglo-American SOP for interpreting written law, contracts and wills. The idea of rewriting the text by interpretation is the alien concept which courts had rejected for centuries.
 

Li Si, the Legalist chief minister of the first Chin emperor Qin Shi Huang, and Vladimir Putin have in their different ways been strong supporters of the rule of law. That does not discredit the concept, but it does suggest tempering enthusiasm with caution.
 

James:

The former KGB officer and current elected dictator of Russia is a strong supporter of the rule of law?

That would be information to the families of his assassinated or imprisoned political opponents, not to mention the Ukrainians.
 

In the past, SPAM has described himself as a "textualist." Perhaps he can identify a earlier thread when he described himself as an "original meaning textualist." Personally I think he's trying to update his resume. "Always"? I had asked earlier:

"How does SPAM determine/decide upon the "original meaning" of the text? Does he transport himself back to those times unbiased?"

SPAM's response:

"Original meaning is hardly a new or alien concept. This is centuries old Anglo-American SOP for interpreting written law, contracts and wills. The idea of rewriting the text by interpretation is the alien concept which courts had rejected for centuries."

is non-responsive. Doe he use a Ouija Board? Does he drive a DeLorean? Perhaps SPAM thinks CJ taney was a textualist in his Dred Scott opinion.
 

I downloaded the article Joe provided a link to. It is by Kurt Lash. It is double column. I could not get it on my desk to in order to utilize the magnifying feature and read it isegments as time permits. But I did read Alan Gura snarky response and Lash's End Note 7 short response taking Gura down by pointing out changing positions and approaches of Gura. I plan to read the article on screen straight through on the screen with magnification as the font of the hard copy is small and light. Perhaps our own "original meaning textualist" might read it to comment on Lash's approach on the text of the 14th A as compared to Gura's approach. I should point out that textualism works better with statutes, especially recent statutes, than with the Constitution, unless one has access to a DeLorean.

 

Alan Gura was the advocate in both gun cases in front of SCOTUS.

Kurt Lash writes sixty page articles on original understanding [or whatever term is used] that tells part of the story on specific clauses of the Constitution and provides possible conclusions that others can reasonable critique.

Asked about how Trump would affect Gorsuch's interpretation of executive power limitations, he answered:

"His oath will bind him to which ever conclusion conforms with the Constitution. There is no reason to believe the current executive will make any difference in his thinking, nor should it."

I will assume he actually believes that; it's a bit silly either way. How a judge determines "what conforms with the Constitution" is complex, a result of various factors, including him or her being a human, not a Vulcan etc. Experience also influences how one determines meaning, including providing lessons on what is warranted. Madison et. al. said as much.

http://prawfsblawg.blogs.com/prawfsblawg/2017/04/5-questions-about-justice-neil-gorsuch.html

"unless one has access to a DeLorean"

It's no fun in the alternative timeline. I blame Marty. No, not Lederman.
 

I'd like to think that the GOP's reputation as the "rule of law" party has taken a serious, serious hit in the last 48 hours.
 

Hope it's not too late for real discussion on this.

Analysis in this area is totally screwed up by the failure to understand that our current party structure is historically weird and the consequence of the 1965 Voting Rights Act bringing Southern Blacks AND poor Southern Whites into the body politic. It is a contingent, not necessary, fact that one party coalition includes all the white supremacists and 95% of the temperamental conservatives.

Independent prosecutors should be drawn from the set of temperamental conservatives, because only a temperamental conservative could be smart, principled, and have faith in an objective rule of law.

A smart principled progressive is, by necessity, too sensitive to the empirical reality of lived human experience to believe in such patent nonsense as the objective true rule of law in close cases.

Our political dysfunction will end when the consequences of 1965 have played out to the point where white supremacists are no longer welcome in either party, when a non-negligible number of POC are members of the Team Red Party that replaces the GOP, and when numerous temperamental conservatives can be found on the Democratic side.

In the meantime, the asymmetry described is natural and good.

I want to live in a society that believes in an objective rule of law. I also want to
 

Shag: In the past, SPAM has described himself as a "textualist." Perhaps he can identify a earlier thread when he described himself as an "original meaning textualist."

The latter describes how a court should define the text of a law, contract or will.

Doe he use a Ouija Board?

It is becoming clearer as time goes on that you either did not practice law or you have forgotten how as a symptom of advancing Alzheimers.
 

"Independent prosecutors should be drawn from the set of temperamental conservatives, because only a temperamental conservative could be smart, principled, and have faith in an objective rule of law."

See also, the separate post on this blog that notes:

(1) Where the subject of the investigation is a Republican, only a Republican investigator will have enough credibility to conduct an investigation whose outcome will be broadly acceptable. (2) Where the subject of the investigation is a Democrat, only a Republican investigator will have enough independence to conduct an investigation whose outcome will be broadly acceptable. One senses that there's actually only one principle at work.

I guess it's partially a question of definitions, yet again. Words like "conservative" and "progressive" are used in various ways. In the scheme of things, John Paul Stevens and David Souter were "conservatives" in certain respects, especially the latter, though both are deemed "liberal" and I guess "progressive" regularly as well. Mr. W.'s Moby Dick reference almost implies I am conservative!

Well, that might be a bridge too far, though sometimes I am called out that way!
 

I am well aware that over the years of SPAM's trolling at this Blog of his claims of being a "textualist." But I do not recall SPAM prior to this thread describing as an "original meaning textualist." So I inquired:

" Perhaps he can identify a earlier thread when he described himself as an 'original meaning textualist'."

SPAM's response:

"The latter describes how a court should define the text of a law, contract or will."

Once again SPAM is non-responsive. Perhaps SPAM as a DUI criminal attorney is too busy in police courts making plea deals to check his archives of comments at this Blog to identify an earlier reference by SPAM to being an "original meaning textualist." Speaking of "advancing Alzheimers," I remind SPAM that the memory is the second thing to go.

How does SPAM determine the original meaning of the text of the Constitution as amended from time to time? Kurt Lash has written many articles on the original meaning of the 14th A as have many other legal scholars. The volume produced since the originalism movement resembles "The Big Bang" compared to the comparative rather limited text of the 14th A. But SPAM is not an originalist apparently. Perhaps SPAM is a "feint-hearted" [sic] textualist. Are originalists wrong in their interpretations/constructions of the 14th A from the standpoint of SPAM as an "original meaning textualist"? Or is SPAM a Mugwamp, with one foot in the textualist camp and the other foot in the originalism camp? Or is SPAM displaying early symptoms of "advancing foot in mouth disease"?

By the Bybee [expletives deleted], the "science" behind the Ouija Board discloses biased hands, which SPAM continues to display at this Blog.

Now, I have to take my meds and listen to the Ella Fitzgerald Orgy on WHRB 95.3 in the Boston/Cambridge area (also available on the Internet at whrb.org) finishing up at 1:00 PM today. Right now she's singing "Ain't Misbehavin" apropos presently.

 

Note that in actuality, except perhaps in the series premiere of Charmed, those who use an Ouija Board tend to "help" the results. Perhaps, an apt reference.
 

Joe:

Shag's ouija board snark is nonsense to any lawyer who applies written law, contracts or wills as part of their practice. I perform original meaning analysis continuously. I just filed a contract counterclaim breaking down a convoluted lease and addendum.

You do not need to summon spirits or time travel to determine the original meaning of words and phrases when some text was drafted. Any claim otherwise is self serving sophistry.
 

Alas, now SPAM has disclosed his pre-existing condition: Unawareness of sarcasm, an early symptom of lacking a sense of humor - with his:

"You do not need to summon spirits or time travel to determine the original meaning of words and phrases when some text was drafted. Any claim otherwise is self serving sophistry."

But SPAM continues to avoid the question asked of him with SPAM's response to Joe (who obviously has a sense of humor):

"I perform original meaning analysis continuously. I just filed a contract counterclaim breaking down a convoluted lease and addendum."

Perhaps if a copy were made available by SPAM of that document, it might reveal a pony of an answer to the question SPAM continues to duck, although the question posed relates to the 14th A and not a lease and addendum that may be of more recent vintage. While this is a legal blog, it's focus is not on "convoluted" leases, rather the focus is on a Constitution whose text is not always clearly revealing.

So, SCHMEDRICK, be responsive finally.
 

I handled a fair amount of commercial lease deals in my practice here in MA, mostly representing tenants and was exposed to many varieties of commercial leases. Like much of contract law, common law plays a role in lease law (both real and personal property leases); in the interpretation/construction of the texts of the leases. Likewise as to wills and trusts. Of course the text is the starting point, but sometimes the text doesn't speak clearly. Over the years common law developed rules of interpretation/construction. Common law existed in America at the time the Constitution was ratified. Since there had not been a significant history of formal constitutions prior to our Constitution, there hadn't been established under common law rules of interpretation/construction of our Constitution. Our Constitution did not specifically provide rules for its interpretation/construction. While some legal scholars have expressed the view that we have a common law Constitution, many believe no. Our Constitution while having a text as do leases, wills, etc, is not in the same category as it impacts a nation. To this day there continue to be differing opinions on how our Constitution is to be interpreted/construed. The over 200 year history of SCOTUS has not demonstrated a clear method for the interpretation/construction of our Constitution. I imagine the search for the Holy Grail of interpreting/construing our Constitution will continue for a long time, providing full employment for constitutional lawyers, unless America gets bogged down in a constitutional crisis. So many theories have developed since the originalism movement that started in the 1970s suggesting that they are at most hypotheses.

[Note: My meds have kicked in and I intended in my earlier comment "SCHMENDRICK."
 

Schmendrick (שמענדריק) is Yiddish for a foolish or contemptible person (OED). In addition, according to Joys of Yiddish by Leo Rosten, another definition is "an apprentice schlemiel." It may also refer to: Shmendrik oder Die komishe Chaseneh (Schmendrik or The Comical Wedding), a play.


 

A note on Primus' "Trump's Innocence and the Rule of Law: A Note on the Comey Firing:

Primus seems to be going along with the conflation you see in most of the coverage today; Take F.B.I. Is Investigating Trump’s Russia Ties, Comey Confirms, in the New York Times.

In fact, the body of the story says nothing of the sort, but instead Comey had stated that "members of President Trump’s campaign" were being investigated.

It should not be necessary to point out that "Trump", and "members of Trump's campaign", are not the same thing. "No man should be the judge in his employee's case." just doesn't have quite the same impact, especially when the one employee we know for certain is being investigated has long since been fired.
 

Perhaps after Trump's presidency, he can make a TV comeback with: "an apprentice schlemiel."
 

Reminds me of "The Last Unicorn", a movie my niece compelled me to watch dozens of times; The bumbling wizard's name is "Shmendrik".
 

Shag:

There is no principled reason to treat the Constitution any differently from a statute, contract or will. The fact a Constitution meant to limit government impacts more people than say a will is actually a good argument for adopting Randy Barnett's presumption in favor of individual liberty and against government directions of our lives.

The fact the Constitution is written and requires an amendment process to change its requirements by definition precludes a common law constitution written and re-written by the judiciary.

That being said, the Constitution effectively invites Congress and the judiciary to set the rules for general terms relating to judicial process like "due process," "unreasonable searches and seizures," and "Excessive bail [and] fines," and "cruel and unusual punishments."

The rest of the Constitution is quite clear and categorical if you apply the original meanings to the terms of art used in the text and well as basic rules of grammar and statutory construction.

Progressive attorneys and jurists are generally smart people and know all this. They knowingly and willfully refuse to enforce the Constitution's limits on progressive policy.
 

Regarding the NYT article. Overall, "Trump's Russian ties" seems appropriate, noting headlines at times are misleading and not the choice of the writers.

The lede paragraph noted: "The F.B.I. director, James B. Comey, took the extraordinary step on Monday of announcing that the agency is investigating whether members of President Trump’s campaign colluded with Russia to influence the 2016 election."

Note Sessions, the Justice Secretary and close advisor during the campaign, has recused himself (though reports are that he was involved in the firing). Anyway, "not the same thing" is not the same as "nothing of the sort" either. It's hard to believe really that Trump himself is totally separate from all of this. At the very least, if you are going to investigate people so close to him, who he has involvement with repeatedly, he's going to enter into the investigation.

Trump, suffice to say, has some ownership here. "Trump's" is not out of the blue. Anyway, Lawfare, which is a more conservative blog than "Just Security" or "Take Care," hits to the core of the point here:

Trump’s clumsy attempt to deny that his own conduct is at issue in the FBI’s inquiry is foolish. Comey testified just the other day that the FBI is “conducting an investigation to understand whether there was any coordination between the Russian efforts and anybody associated with the Trump campaign.” Splitting hairs over whether this does or does not mean that Trump is “under investigation” cannot obscure the fact that Trump just fired someone who is leading an investigation that deals with whether his aides, campaign, and White House staff had improper dealings with adversary foreign intelligence service.

https://www.lawfareblog.com/nightmare-scenario-trump-fires-comey-one-man-who-would-stand-him

It is a tad specious to speak of "his employee's case" as if Trump has no special connection here. As if some random "employee" of his is involved. If we are going to worry about nuance, perhaps show more of our own.