Balkinization: Our inevitably living Constitution

Our inevitably living Constitution

Sandy Levinson

For the Symposium on Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press, 2018).

No one in the future can be considered a literate commentator on the history of the Constitution and American constitutional development who has not carefully read and reflected on Jonathan Gienapp’s stunning book The Second Creation: Fixing the American Constitution in the Founding Era. The title itself is extraordinarily rich. It requires us to stop regarding the Philadelphia Convention, or even the various state ratifying conventions, as the singular moment (or even moments) of “creation” of the Constitution (whatever exactly that might be thought to mean). They were important, to be sure, but Gienapp is convincingly insistent that the Congress that convened in 1789 and made crucially important decisions for several years thereafter (including, for example, responding to the Jay Treaty of 1795) played an essential role in “fixing” the Constitution.

There is a quite self-conscious (at least) double entendre in the use of the word “fixing.” One might view it as recognizing that certain (inevitable) deficiencies in the text and understandings that were present in 1787-88 were “fixed” and repaired by new and improved renderings of constitutional meanings given by the legislators thereafter. But there is also, crucially, the development of a notion of a Constitution that becomes “fixed” and therefore made unchangeable (save for the near-futile path of constitutional amendment set out by Article V). A word that Gienapp uses throughout his book is “textualized”; that is, the Constitution is transformed from a set of quite inchoate understandings, similar in their own way to the fluidity attached to the notion of the British “constitution,” into a specific text that is itself thought to provide firm answers to the dilemmas of actual governance that quickly emerged after the new government got up and running in the spring of 1789. There is, of course, yet a third meaning of “fixed” that is available, as when people speak of “fixing” their dogs or cats, by which they mean neutering the animals and making it impossible for them to generate a next generation of puppies or kittens. I shall note below the implications of this third notion of “fixing” the Constitution, which is in fatal tension with the far more dynamic view of American constitutionalism enunciated by John Marshall in what remains the single most important opinion in our history, McCulloch v. Maryland.

The central thesis—and indispensable contribution—of the book is announced in the Introduction: “How a wide swath of the American political community imagined the Constitution when it was written in 1787, or [even] when the federal government first gathered under its auspices in 1789, was quite different from how that community imagined it a decade later” (p. 9). I would add that Gienapp’s assertion makes hash not only of those who fixate on the conventions in Philadelphia or the various state capitals (plus Poughkeepsie, the surprising locale of New York’s ratifying convention), but also of those who believe, say, that The Federalist, written during this same period by highly motivated partisans of constitutional ratification, offers some specially privileged insight into constitutional meaning. Whether or not we agree in full with Aristophanes that (at least sometimes) “whirl is king,” we should recognize that he is a better guide to American constitutional development, even (or especially) in its formative period, than are those who believe that there were necessarily “fixed” meanings of the Constitution in 1787 or even 1790, when the final state, Rhode Island, got around to ratifying the Constitution. (Its approval was by the less-than-inspiring vote of 34-32, and one might surmise that the crucial two votes that precluded yet another rejection by Rhode Islanders was the fact that Congress was threatening to pass a law prohibiting commercial intercourse with the juridically “foreign country” of Rhode Island. So much, incidentally, for the Lincolnian theory that the United States had been a singular entity since 1774, let alone the Declaration of Independence in 1776--the four-score-and-seven-years prior to 1776. Wherever exactly Rhode Island was prior to ratification, it was not within the United States of America.

Of course, one should not go overboard with the reference to Whirl or the “indeterminacy” of the original Constitution. What I have elsewhere termed the “Constitution of Settlement,” involving such things as the two senators assigned to each state (alas), or the length of presidential and congressional terms, might indeed have been fixed on September 17, 1787, when the delegates, save for Randolph, Gerry, and Mason, signed the text that was then delivered to the country at large for ratification under Article VII. And that all-important Article, which has disappeared from what might be termed the “pedagogical Constitution” taught to youngsters, was itself importantly “fixed” inasmuch as it fully repudiated the seemingly fixed rule laid down in Article XIII of the Articles of Confederation regarding requirements for amendment, and replaced it with the all-important proviso that ratification by only nine conventions, rather than all state legislatures, would be enough to breathe life into the proposed Constitution. The dreaded Rhode Island veto, relied on by the hapless leaders of that state when they refused to send any delegates at all to Philadelphia, was no more. George Washington took his oath of office on April 30, 1789, to become Chief Executive of a nation that at that time did not include either North Carolina or Rhode Island. This facet itself of the Constitution forces us to realize that “fixity” may be a sometime thing, though, tellingly, the defense of Article VII must take the form either of an Ackermanian justified illegality or, as argued instead by his colleague Akhil Reed Amar, an assertion that the “confederation” announced in the Articles, including the strictures of Article XIII, had in effect been dissolved by the utter failure, for example, to elicit sufficient tax revenues through the politically disastrous “requisition” system that was the equivalent of sending out letters begging for contributions that would in fact not be forthcoming.

But, of course, members of the new Congress, and Washington as well, were not arguing about the meaning of the Constitution of Settlement; he might have argued that his term expired on April 30, 1793, four years after he took his initial oath of office, but he accepted the understanding that the new country had in fact first sprung to life on March 4, 1789 when Congress first convened. Whether that was a “required” understanding of the Constitution might make a nice exam question, but his acceptance of March 4, to use a Madisonian term, “liquidated” any possible controversy over the end-date of the presidential term, which remained until changed by the 20^thAmendment in 1933. Rather, the disputes were about what I have termed the complementary “Constitution of Conversation,” the Constitution that, for better and worse, is the subset of the overall Constitution that legal academics and the judiciary obsess about. Consider that the Constitution clearly requires that Congress confirm high-level executive branch officials; even if one might wonder today how it is that presidents appoint National Security Advisors and other truly significant officials without such confirmation, that was not an issue facing the initial officials charged with figuring out the practical implications of the new Constitution. What did concern them was what happened if the President wishes to dismiss (or “remove”) a confirmed official. Did Congress retain a right, derived from its confirmation power, to veto a possibly impetuous President? Or are all executive branch officials in effect employees at the Chief Executive’s legally untrammeled will? This is both highly interesting theoretically and also of significant practical importance. To accept the latter notion is to adopt a significant more “monarchical” view of presidential authority than is entailed by the former, in which Congress retains a possibly decisive role in determining who exercises at least some facets of executive power. Not surprisingly, removal was the subject of perhaps the first “great debate” in the history of the U.S. Congress, where by one vote, that of Vice-president John Adams breaking a tie in the Senate, the President (in this case George Washington, of course) was given the unilateral power to say “you’re fired.” Interestingly enough, this decision flew directly in the fact of Publius’s assurance in Federalist 77 that “the consent of the Senate would be necessary to displace as well as to appoint.” Not to worry, though, for a note from Alexander Hamilton, known by then, at least among the cognoscenti, to be one of the authors of The Federalist, indicated that he had “changed his opinion” and had become “convinced” that the president should indeed have the “power of removal at pleasure” (p. 155). As Gienapp writes, this episode only demonstrated the extent to which the Constitution was being treated “as an object of [interpretive] freedom rather than of constraint” (id.). Whirl was indeed king.

This heady notion of openness to what Habermas might term the force simply of the stronger normative argument—i.e, which interpretation of the Constitution was in fact best for the country?—would shortly be supplanted by an emphasis on a more “fixed” Constitution that would ostensibly constrain otherwise exuberant legislators. The bulk of the book is devoted to demonstrating the various ways in which this occurred. Chapter Four is entitled “The Sacred Text.” In my own first book, I distinguished between “catholic” and “protestant” notions of what might be called, using Gienapp’s own terminology, constitutional ontology. For constitutional “catholics,” the Constitution might include a text, but it also included, at least as importantly, the teachings of the magisterium collected in the institutional Catholic Church, just as for all but Karaite Jews, the authoritative materials include both written and unwritten sources; protestants (or Protestants), of course, believed in the maxim sola scriptura. For whatever reason, including, perhaps, the importance of Protestantism in American culture, the appeal to a “sacred text” won out, whatever the obvious problems, well delineated by Gienapp, of believing in the reality of self-sufficient texts.

As always, James Madison plays an important role in the narrative. He was the author of Federalist 37, a stunning essay that emphasizes the limits of textual determinacy. Surely one of the most remarkable sentences not only in The Federalist, but in all American political thought, is Madison’s statement that “[w]hen the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful, by the cloudy medium through which it is communicated” (p. 110). By the time he was opposing the Bank of the United States promoted by his former ally, and now bitter enemy, Alexander Hamilton, the Constitution was becoming less “cloudy” and, Madison alleged, clearly adverse to Congress’s power to charter the Bank. Needless to say, one can wonder whether this later position was the result of Madison’s theoretical reflection on the nature of language or, instead, the product of what we today would call “motivated reasoning,” in which political goals (such as blocking Hamilton’s vision of a commercial republic) led to seemingly different positions from those taken earlier.

Gienapp is truly gifted in delineating a number of early political disputes in which constitutional arguments became central. They certainly included, but are not limited to, the debate over dismissal of executive officials; the chartering of the Bank of the United Sates, and the Jay Treaty. Not at all coincidentally, these debates also served to bring onto the scene the reality of political parties that Madison and others had hoped to forestall by creating a constitutional order that would rely on basically virtuous political leaders thinking only of an abstract public interest. Although, as Noah Feldman demonstrated in his recent marvelous study of Madison, the Virginian could be remarkably understanding of some of his political opponents, such as James Monroe, whom he continued to regard as genuine friends who simply had different views from his own, Hamilton was consigned to the role of a veritable anti-Christ, an enemy to the Republican Form of Government at least as conceived by Madison. The Democratic-Republican Party was founded in part to fend off the Satanic blandishments of the glib and clever Hamilton, and that required as well the manufacture of arguments that might counter those of Hamilton and his own allies. Madison and his allies proved just as willing as many of the Federalists to adopt the rhetoric of a “fixed” Constitution. No longer was the Constitution “incomplete,” to be filled in by imaginative and innovative legislators; “instead, [it] already possessed an operative meaning, discoverable in the fixed past” (p. 310).

What Gienapp is setting out is not, in fact, a method of interpretation that will generate what all of us will agree are the correct answers to constitutional conundra, but, instead, a rhetoric of interpretation that participants in the particular language game of “law talk” would increasingly be expected to use. Whatever Madison might have written, particularly in Federalist 14, about the importance of rejecting tradition and what he called the authority of “names” in favor of the “lessons of experience,” that increasingly took second place, at least in public debate, to what was ostensibly revealed in the text or the teachings of those who were now viewed as creators of the Constitution. Obviously, we live today in the shadow of the intellectual (or rhetorical) tradition that Gienapp set out.

But Gienapp, perhaps because he is a truly gifted historian, offers relatively little succor to contemporary “originalists” other than describing how that particular aspect of the constitutional language-game emerged out of the intense political conflicts of the 1790s. He concludes his book, for example, by stating, “The irony of the endless search for the original Constitution is that such an inquiry will never reveal a fixed document.” Whatever our cultural “fascination with fixity,” the concept itself is chimerical. Thus, he concludes, “Appreciating how the idea of a fixed Constitution was invented, in other words, should encourage us to imagine anew, in our own time, what the Constitution ought to be” (p. 334).

As Alison LaCroix notes in her ow review of Gienapp, he quite properly devotes very few pages to the judiciary or to the particular contributions of John Marshall, present in this book primarily as a member of the Virginia ratifying convention. Marshall would not emerge as an important figure, perhaps a genuine “Founder” of our operative constitutional order, until the 19^thcentury. But it is worth noting, I believe, that “the Great Chief Justice’s” all-important opinion in McCulloch v. Maryland (1819) provides the basis for the critique of “fixity” as a constitutive notion of the Constitution. By then, Madison had thrown in the towel on the propriety of chartering a Bank of the United States; he had, after all, signed the bill establishing the Second Bank in 1816. At the very least, his version of original understanding and fixity, argued at length in 1791, was rendered irrelevant by the brute reality of acceptance by the polity in general of the legitimacy of the first Bank of the United States, which had expired in 1811. He never for an instant admitted that he had been mistaken in his 1791 opposition to the Bank, only that it was time in effect to move on. However, he was rendered apoplectic by the specific reasons offered by Marshall for upholding the Bank, and he wrote Virginia’s Chief Justice Spencer Roane, probably correctly, that the Constitution would not have been ratified had wavering delegates been aware of the construction that Marshall would give it with regard to the vast reach of national power under Article I, Section 8.

One might well argue that Marshall in substantial measure rejected much of the belief in the “fixed” Constitution in favor of a far more capacious understanding that was similar to the “true” original understanding, as of 1787-1788, attributed to Madison, that “the Constitution was incomplete, partial, and in critical ways indeterminate,” so that “ongoing discussions and experiences would help make new meanings that would flesh out the unfinished edifice that he had helped construct” (p. 332). How does Marshall do this? Consider only his seemingly casual reference to the Constitution as a “great outline” that would presumably need to be filled in as the lessons of experience suggested, including, for example, the realization that the United States was no longer confined to its original borders east of the Mississippi River, but now reached to the Pacific Ocean. His opinion included the reminder that “we must never forget it is a Constitution” that is being “expounded,” which Felix Frankfurter thought was the most important single sentence in the canon. I confess I did not understand Frankfurter’s enthusiasm for many years, until I linked it with a sentence several paragraphs later, in which we were reminded that the Constitution was designed “to endure,” which in turn entailed that it “must be adapted to the various crises of human affairs.” To be sure, one might read this in a quite limited, almost Schmittian sense, so that “adaptation” would occur only in cases of “emergency,” whereas otherwise we would stumble along, for better or worse, with our “fixed” understandings.

But it appears fairer to the Marshallian understanding to offer the same kind of capacious meaning of “crisis” that he himself offered with regard to the notion of “necessity,” which notoriously turned out to mean “convenient or useful.” It seems altogether appropriate to make “crisis” synonymous with the notion of “challenges” facing our political order at any given time. Thus conceptions of national power, in particular, had to adjust—be “adapted to”—the development of a national economy—and in our own time globalization—let alone the perhaps existential threats presented by climate change and other environmental issues. There is something profoundly stupid, even “imbecilic”—the word used by several critics of the Articles of Confederation to justify the need for a new Constitution in 1787—in Justice Scalia’s snarky statement, in his dissenting opinion that would have struck down Obamacare, that it is a mistake to believe that Congress necessarily has the power to do “whatever-it-takes-to-solve-a-national-problem.” Better, presumably, to drive over a cliff rather than “adapt” one’s constitutional understanding to allow Congress to meet a genuine “national problem.” As Jack Balkin and I have argued elsewhere, this is a formula for a certain kind of “constitutional crisis.” As much to the point is that Scalia’s view, if taken altogether seriously, further undercuts the rationale for anyone’s even genuinely respecting, let alone “venerating,” our Constitution.

It is telling, I believe, that Randy Barnett, in his influential book (at least in conservative circles) on an ostensibly “Republican Constitution,” goes out of his way not only to disdain what some might view as democratic self-government—because he wants an empowered judiciary to monitor alleged constitutional overreaching by the demos, including, he believes, Obamacare—but also, and more relevantly for the purposes of this review, what might one believe is the central teaching of John Marshall about the need for adaptation if a Constitution is truly to “endure”—or, one might even say, to live. Scalia was proud to announce his devotion to a “dead Constitution,” one purportedly “fixed” in past understandings. Gienapp allows us to understand the continued rhetorical pull of such arguments, but he also demonstrates their embeddedness, both in 1790 and 2018, in fundamentally political conflicts and their basic fatuousness as genuine guides to determining constitutional meaning.

Posted 9:00 AM by Sandy Levinson [link]

Comments:

Two themes stand out from the new republican government's debates on how to apply the new Constitution: (1) The government applied the Constitution as written, not as a "living" common law document it could amend by decree, and (2) the government applied the Constitution as a series of limits on government power, with none of the current progressive assumption of constitutionality of policies which plainly contravene the Constitution as written.

Madison's lamentation of the limitations of written law to fully describe complex ideas in Federalist 37 also described a judiciary industriously working to apply imperfect law as written. Here is the full passage from which Sandy drew his quote:

The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.

# posted by

Bart DePalma : 10:04 AM

Prof. Alison LaCroix was on CSPAN the other day:

https://www.c-span.org/person/?116258

I too find Madison's discussion of language in Federalist 37 on point. The title of this essay also is my sentiment. It is "inevitable" while also being the sensible approach as well as one see by original practice. I reserved that book, but either way it is true that (as Madison noted) how the Constitution specifically would work would only come out when it was put into place.

And, that continues, including when applying later amendments, as we continue on. Things didn't stop happening in that fashion c. 1796 or something. Some find this too indeterminate so find a way to "restrain" that isn't very restraining.

If someone wants a "dead" Constitution, fine as far as it goes, but it isn't really ours. Scalia's confused snark continues to make me find it is tragic he is put out as a model (see, e.g., Rick Hasen's book). OTOH, I guess, he's somewhat better in a fashion than the latest versions.

# posted by

Joe : 12:24 PM

Originalists have always cheated this point by citing actions and opinions from well after ratification as evidence of "intent" or "meaning" as of 1787-8. In addition to Gienapp's point about process and methods of interpretation, the 1790s saw as much social and cultural change as any decade in history up to that point in time. It would be fair to say that ALL interpretations, no matter how close in time to ratification, were offered based in part on the political and social needs at the time of interpretation, not the time of ratification.*

*Gienapp may make this point, but I haven't seen it mentioned yet and I haven't read the book, though it's on my list.

# posted by

Mark Field : 12:59 PM

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# posted by

Joe : 1:07 PM

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# posted by

Joe : 1:08 PM

As vice must always deny the possibility of virtue, so the living constitutionalist must always deny the possibility of originalism.

For if virtue is possible, what excuse can there be for vice? And make no mistake: If you have a written constitution, living constitutionalism IS vice. It, purposely, defeats the whole point of writing a constitution down: Fixity save when formally amended.

# posted by

Brett : 3:08 PM

Looks like Brett got the epigram right, but switched the terms in his second clause.

# posted by

Mark Field : 3:24 PM

As vice must always deny the possibility of virtue, so the living constitutionalist must always deny the possibility of originalism.

The discussion -- like Mark Field's appeals to history -- is citing our beginnings to show how constitutionalism will work in practice. In fact, how it was understood originally in that respect. Madison and John Marshall, e.g., are repeatedly cited here. But, like certain Christians when using that term, "originalism" for some has a certain narrow meaning. The rest are not true Christians, I mean, originalists.

It, purposely, defeats the whole point of writing a constitution down: Fixity save when formally amended.

The fluidity of the English language is well expressed by linguists like Kory Stamper over at Merriam Webster. Ditto Madison.

Likewise, the whole point of many of the words in our Constitution (as John Marshall, a ratifier, noted) was to have general ends for which specific applications will depend on the exigencies of the moment. Which but dimly will be expected by the original authors. McCulloch v. Maryland. Such was a feature not a bug in his eyes.

"Two" senators is specific, but "due process" or "cruel and unusual" have meanings, but more fluid ones in specific application. They knew that and wrote words that they knew our government would apply over time based on how things developed. Elections, checks and balances, etc. therefore were quite important.

Epigrams, however phrased, only take us so far. Though maybe easier to write in fortune cookies to read at the end of the meal.

# posted by

Joe : 12:29 AM

"But, like certain Christians when using that term, "originalism" for some has a certain narrow meaning. The rest are not true Christians, I mean, originalists."

Ah, the usual appeal to "No true Scotsman!".

But there ARE people who aren't Scotsmen, lots of them. It's no less a fallacy to insist that everyone who calls themselves a Scotsman must be one. It IS possible to lie about being a "Scotsman". Just as it's possible to lie about being an originalist.

In the early 20th century, faced with the fact that socialism was far less popular than liberalism, the Fabian socialists, (Whose emblem was a wolf wearing a sheep's skin.) had the clever idea of calling themselves "liberals", and in the end actually managed to steal the title away from the actual liberals, who must now call themselves "classical liberals" or "libertarians" to avoid being thought socialists if they accurately call themselves "liberals".

A similar attack is underway against originalism; Living constitutionalists, led by this very blog's founder, are trying to call themselves originalists. It may even work.

But I don't have to pretend it's true.

# posted by

Brett : 6:02 AM

"The fluidity of the English language is well expressed by linguists like Kory Stamper over at Merriam Webster. Ditto Madison."

It's a well worn trail you're treading here, but it still leads to a dead end. Language isn't fluid enough to accomplish what you want. If you make it fluid enough, it ceases to accomplish the goal of language: To transmit meaning. Even meanings the reader doesn't like.

Always living constitutionalists appeal to the few vague phrases, like "cruel and unusual", and always when the rubber hits the road, what they're really trying to do is undermine the meaning of the more specific phrases, like “to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.”

Phrases which were meant to distinguish powers granted from powers withheld, but which the living constitutionalist wants to treat as granted.

Joe, the point of language is to transmit meaning, and the point of living constitutionalism is to "find" a meaning the reader finds congenial, regardless of what meaning is being transmitted. Living constitutionalism is a deliberate rejection of the fundamental purpose of language, a decision that, if you don't like what a text is telling you, you will simply substitute some other meaning you like better.

I have no respect for living constitutionalists. They aren't merely at war with the Constitution. They are at war with language itself, one of the few things that distinguishes us from the beasts of the field. And thus are ultimately the enemy of all mankind.

# posted by

Brett : 6:19 AM

"A similar attack is underway against originalism"

I'm shocked, shocked, to find that Brett finds his political opponents to be acting in bad faith and, indeed, involved in some concerted far ranging conspiracy!

"in the end actually managed to steal the title away from the actual liberals"

This is really silly. It avoids the fact that the meaning of words changes over time all the time. They evolve. I mean, those who thought of themselves are others as 'conservative' would have at one time been supporters of traditional privileges and institutions (aristocracy, Church powers, etc.,) that modern day conservatives wouldn't support. Did modern day conservatives 'steal' the title?

Liberalism started as a challenge to traditional institutions and privileges in the name of liberty and equality. It's quite normal and reasonable that at some point many of the people that objected to, say (wrongly or rightly), the privileges of peerage would later go 'hmm, now that I think about it, poverty and economic inequality themselves are threats to meaningful liberty and equality.' That 'classical liberals' or 'libertarians' lost that argument among the movement hardly means it was 'stolen.'

# posted by

Mista Whiskas : 7:10 AM

I wonder, does Brett talk to many 'living constitutionalists?' Or more importantly, does he *listen* to them? Because I have to say the ones I've read and talked to don't seem to think Wickard is the raison d'etre of their philosophy. Instead, what they usually tend to say is what Brett seems to concede, that there are many important clauses in the text of the Constitution that seem to embody *principles* the application of which will change throughout time because they are somewhat dependent on changing situations. What's 'reasonable,' or 'cruel,' or 'due' is heavily dependent on the circumstances at hand, and that changes over time. Hence, the 'living' part of the term.

But, let's take Wickard. I think Brett is correct that the IC Clause was meant to be a grant of a power with an implied circumscription. But the problem the Wickard court faced was this: the program at stake, which certainly focused on interstate markets, was argued to be undercut unless intrastate activity which was linked to it was not also regulated. If Wickard could grow and keep his own wheat then he would not participate in the interstate market in wheat. If everyone, or even enough people did the same, it would undercut the attempted exercise of granted power to the point of defeating the grant.

So, what do do? The Court chose to affirm the explicitly granted power at the expense of the implicitly denied power. I just don't see that as such a travesty and betrayal.

# posted by

Mista Whiskas : 7:20 AM

Joe: "Two" senators is specific, but "due process" or "cruel and unusual" have meanings, but more fluid ones in specific application."

The Constitution's specific provisions expressly prohibit nearly all of the progressive state, which is why progressives invented the "living constitution" as a propaganda term for rewriting or erasing the law by decree and the post-modernist nonsense stripping plain meaning from words.

The vesting clauses beginning Articles I to III expressly prohibit an absolute bureaucracy enacting and adjudicating law.

Equal protection of the laws expressly prohibits the redistributionary tax and welfare system and discriminating on the base of class and race.

The Commerce Clause grants Congress the power to regulate the trade of goods and services between states and is not a general police power.

Nothing fluid about applying these laws as written.

# posted by

Bart DePalma : 9:10 AM

Brett: "in the end actually managed to steal the title away from the actual liberals"

Mr. W: This is really silly. It avoids the fact that the meaning of words changes over time all the time.

The meaning of "liberal" did not change over time, rather the New Deal totalitarians misappropriated it.

Socialism and communism never gained traction with Americans like it did with Europeans.

Progressivism became a bad word after our totalitarians caused a massive inflation during WWI, which cratered the economy in the 1920 Depression.

So, our totalitarians took a page from Lenin's communists relabeling themselves as "Bolsheviks" (the majority) and decided to unilaterally rename the sides of American political debate, taking the term "liberal" for themselves and calling the actual liberals "conservatives."

The Europeans never played along with this switch. They still call those of us who believe in limited government liberals.

# posted by

Bart DePalma : 9:20 AM

It won't surprise anyone that Brett is wrong about the history of the changing word "liberal". It really has little to do with the Fabian Socialists and a lot to do with Herbert Asquith's Liberal Party program (Asquith became Prime Minister in 1908). Those reforms drew from a variety of sources, including Bismarck, Henry George, and the US Progressives. Winston Churchill, hardly a "socialist", supported Asquith's "People's Budget". Asquith's program, combined with Wilson's version of Progressivism, became the template for FDR's administration, and that solidified the switch in meaning.

As for "fixity of meaning", consider this from Euclid v Ambler Realty (1926):

"[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. … [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles…"

This opinion was delivered by that noted liberal, Justice Sutherland.

# posted by

Mark Field : 9:21 AM

"The vesting clauses beginning Articles I to III expressly prohibit an absolute bureaucracy enacting and adjudicating law."

No they do not.

"Equal protection of the laws expressly prohibits the redistributionary tax and welfare system and discriminating on the base of class and race."

Laughable.

"The Commerce Clause grants Congress the power to regulate the trade of goods and services between states and is not a general police power."

And it's not used as such, except in and that commerce inundates so many parts of life.

# posted by

Mista Whiskas : 9:21 AM

"The meaning of "liberal" did not change over time, rather the New Deal totalitarians misappropriated it."

The word 'liberal' was applied to an intellectual tradition and empirical movement. These, of course, can change the contents of their beliefs (especially where, as in this case, things are *added* to the basic beliefs). There's no more 'misapporpriation' there than there is in modern conservatives claiming the mantle of Burke when they currently believe many things contrary to what Burke stood for.

"Progressivism became a bad word after our totalitarians caused a massive inflation during WWI, which cratered the economy in the 1920 Depression."

Remember Bart has long claimed here that Hoover, elected in 1928 by an almost twenty percent margin, was a tried and true progressive.

So I guess it wasnt that bad of a word ;)

# posted by

Mista Whiskas : 9:26 AM

Mr. W: No they do not.

Back in the day, John Cleese played the contradictory Mr. W.

# posted by

Bart DePalma : 9:35 AM

BD: "Progressivism became a bad word after our totalitarians caused a massive inflation during WWI, which cratered the economy in the 1920 Depression."

Mr. W: Remember Bart has long claimed here that Hoover, elected in 1928 by an almost twenty percent margin, was a tried and true progressive.

Then there is the contradictory Mr. W's fondness for red herring.

# posted by

Bart DePalma : 9:37 AM

Red herring? If progressivism was a bad word, and, as you often say, Hoover was a bona fide progressive, how did he win in a landslide?

See, your mythology just doesn't hang together.

# posted by

Mista Whiskas : 9:44 AM

Mr. W:

In 1928, Hoover did not campaign as a progressive, because the term was still unpopular among voters. Instead, his campaign slogan called for a continuation of the Coolidge liberal prosperity: "A Chicken in Every Pot and a Car in Every Garage" However, he most definitely governed as a progressive.

FDR did not have a successful predecessor on whose shoulders to ride, so he changed the terms of the debate and misappropriated the term "liberal."

# posted by

Bart DePalma : 9:51 AM

Laughable rationalization.

# posted by

Mista Whiskas : 10:12 AM

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# posted by

Joe : 10:17 AM

Ah, the usual appeal to "No true Scotsman!".

But there ARE people who aren't Scotsmen, lots of them. It's no less a fallacy to insist that everyone who calls themselves a Scotsman must be one. It IS possible to lie about being a "Scotsman". Just as it's possible to lie about being an originalist.

People are not "lying" about being Christians when they argue they can support same sex marriage and be Christian. Now, some might disagree on the subject. Christians strongly disagreed among themselves from the times of Peter v. Paul. We even have strong disagreements among evangelicals. John Fea, e.g., is a dissenting evangelical, as seen by his book "Believe Me" about Trump support in that movement.

I'm not going to add to what others said about the whole "liberal" definition business. I find the term "originalist" tiresome in practice for various reasons, but calling someone like Jack Balkin a "liar" when he writes long articles, using original understanding, on what "commerce" means is part of the deal. There is some limit to language but suffice to say "originalism" has about as many reasonable possibilities as "Christian."

# posted by

Joe : 10:17 AM

It's a well worn trail you're treading here but it still leads to a dead end. Language isn't fluid enough to accomplish what you want. If you make it fluid enough, it ceases to accomplish the goal of language: To transmit meaning. Even meanings the reader doesn't like.

Meaning is being transmitted. "Equal" has a meaning. Since 1776, some basic equality among humans was deemed "self-evident" under our legal thought. This has roots in Christian thought, which influenced a lot of people at the time too. But, the specifics were greatly debated, and changed over time. How developments of science, society, law etc. would apply that two hundred years later only "dimly" would be known. Institutions, established in a republican way, are set up to apply those specifics.

The trail is well worn. It still is not leading you to the promised land except disagreement on specifics that seem obvious to you so the other side must be knaves or fools. I guess the claim of "liar" is generous of you on some level.

Always living constitutionalists appeal to the few vague phrases, like "cruel and unusual", and always when the rubber hits the road, what they're really trying to do is undermine the meaning of the more specific phrases, like “to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.”

The Constitution does not have a "few" vague phrases. The meaning and reach of the executive power is a prime example. The Necessary and Proper Clause is an open-ended phrase that provides a gloss over the whole gambit as well.

The term "to regulate commerce" is surely not very specific. As applied to Native Americans, in fact, it was quite broad. After all, other than the Treaty Clause (which after the 1870s was looked upon in disfavor as a means to engage with tribes though existing treaties staid in place), it was the primary means to engage with tribes. This, however, required using it to cover a wide range of matters. What does "commerce" entail? This was a subject of various Marshall Court cases. That covers a lot of ground. How did slaves fit in? There was a big dispute there. What is "necessary and proper" there? Is a national bank constitutional? Yes, there were great debates over "undermining" limits.

Joe, the point of language is to transmit meaning

Brett, meaning is being transmitted. There is not failure to understand what language means as a concept here. The specifics are being debated.

# posted by

Joe : 10:46 AM

Query: Is the concept of Christianity/Christians based upon a doctrine or originalism or has this concept evolved as people have lived from the beginnings of Christianity/Christians? Are there various stages over time that changes may have taken place, in a manner of constitutional amendments, in the concept of Christianity/Christians with perhaps new fixities? Do current day Christians speak in tongues of past original meanings of Christianity, and are current day Chritians in agreement on the same tongues?

# posted by

Shag from Brookline : 10:48 AM

1. The framers certainly assumed that in a common law system, the meaning of constitutional provisions might evolve over time.

2. Other than that fact, there really isn't any great reason to worry about the views of the overrated, inexperienced racist slaveholders who founded this country. The Supreme Court is governed by consensus, precedent, and politics, not long dead slave rapists.

# posted by

Dilan : 10:53 AM

Dilan:

Drafting a written constitution vesting Congress or a convention and states with amendment power expressly precedes a common law constitution.

# posted by

Bart DePalma : 11:07 AM

The quest for "meaning" begs the question "Meaning to whom?". We have some chance of determining "meaning" when we converse with people today. That's the important "meaning" when it comes to implementing the Constitution.

# posted by

Mark Field : 11:08 AM

Bart:

The Seventh Amendment (referencing the common law system) postdated the adoption of the Amendment process. Obviously the framers did not see the Amendment procedure as rendering the common law inoperative.

At any rate, you really can't repeal the common law. SCOTUS has a limited docket. So it was baked into Article III that precedent would control the actions if the lower courts. Not original meaning.

# posted by

Dilan : 11:23 AM

We are left on relying on the decisions of attempted rapists now.

Note that "originalism" doesn't only apply to the pre-1865 Constitution though.

# posted by

Joe : 11:47 AM

Dilan:

No one claims the Constitution precludes common law in general, but rather the amendment clause precludes courts from amending the Constitution through the common law.

# posted by

Bart DePalma : 11:48 AM

Joe:

That's depressing but true.

# posted by

Dilan : 11:55 AM

Bart:

"Amending the Constitution" has a different meaning. Common law evolution is more diffuse and gradual.

# posted by

Dilan : 11:56 AM

Dilan:

Regardless of the speed, courts rewriting or erasing provisions of the Constitution under the guise of interpretation is amending the document.

# posted by

Bart DePalma : 12:11 PM

No Bart it isn't.

Just because you can't conceive of the difference doesn't mean there isn't one. It just means your thinking is too rigid and lacks nuance and subtlety.

You have all these judges, much smarter people than you, people who handled the biggest cases, not DUI's in Colorado, who are telling you that your theories are too simplistic. Instead of doubling down, try to understand what they are really saying.

# posted by

Dilan : 12:15 PM

Dilan:

Citation to authority has to be hands down the #1 progressive logical fallacy.

You are confusing intellectual dishonesty with intelligence.

# posted by

Bart DePalma : 1:05 PM

I don't think there's any confusion that SPAM's dishonestly is not intellectual.

# posted by

Shag from Brookline : 2:08 PM

Bart:

Appeal to authority is an informal fallacy. It is only fallacious when there is no reason to believe that the authority has superior knowledge.

None of that is true here.

If you refuse to understand how the law develops, you simply cannot practice appellate law. I hold liberals to this same standard. I can't stand when people pretend to be latter day Duncan Kennedys and declaim that there is nothing to law but politics. That isn't true either.

But very smart judges give you detailed reasons supporting their interpretations. Declaring none of that matters and all they are doing is amending the Constitution is just saying "I don't care that all these incredibly smart people say something. I know better."

# posted by

Dilan : 2:13 PM

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# posted by

Bart DePalma : 2:47 PM

Dilan:

Appeal to authority ("because I said so") is a fundamental logical fallacy employed by every parent and everyone who wants to assert parental authority role over fellow adults.

As to competence concerning the subject at hand, a high school student with a basic competence in grammar can apply most laws as written.

As to integrity, even most brilliant, nuanced jurist cannot honestly read the express and absolute command "All legislative powers herein granted shall be vested in a Congress of the United States" to permit an executive bureaucracy to decree most of our law.

# posted by

Bart DePalma : 3:38 PM

No Bart, your average high school student cannot resolve whether imposing a life sentence on a juvenile is a "cruel and unusual punishment" nearly as well as 9 experienced judges armed with 200 years of caselaw.

And the fact that you don't realize this explains a lot.

# posted by

Dilan : 3:55 PM

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# posted by

Shag from Brookline : 4:16 PM

SPAM's 3:30 PM response to Dilan:

"As to competence concerning the subject at hand, a high school student with a basic competence in grammar can apply most laws as written."

coming from SPAM as the foremost criminal defense DUI counsel in his rural mountaintop community might give the boyos in his local police court LOL moments. This might suggest that perhaps SPAM skipped high school in the process of becoming an attorney.

# posted by

Shag from Brookline : 4:19 PM

Sandy's second paragraph closes with this:

***

There is, of course, yet a third meaning of “fixed” that is available, as when people speak of “fixing” their dogs or cats, by which they mean neutering the animals and making it impossible for them to generate a next generation of puppies or kittens. I shall note below the implications of this third notion of “fixing” the Constitution, which is in fatal tension with the far more dynamic view of American constitutionalism enunciated by John Marshall in what remains the single most important opinion in our history, McCulloch v. Maryland.
***
Maybe Sandy's later discussion of Marshall was too subtle for me to understand his application of the third meaning of "fixed." Did Marshall "unfix" the Constitution? Some might say "You can bank on it."

By the way, Sandy's discussion of Marshall was spot on. Years back I enjoyed Sandy and Jack's take on Marbury v. Madison in Constitutional Commentary on its 200th anniversary. And I suspect that Sandy's review included events that perhaps Glenapp did not cover in his book. I imagine that over at the Originalism Blog Sandy's review post will get attention over the next week. Of interest is Will Baude's review post and his post on the Glenapp book at the VC on his "Original Law Originalism." Baude will be looking into some of the questions Sandy raised about originalists in a new book apparently in progress.

# posted by

Shag from Brookline : 5:06 PM

Dilan: Bart, your average high school student cannot resolve whether imposing a life sentence on a juvenile is a "cruel and unusual punishment" nearly as well as 9 experienced judges armed with 200 years of caselaw

Seriously, why?

Given this is arguably the most subjective provision of the Constitution, what makes the opinions of the judges more valid than that of the student?

# posted by

Bart DePalma : 5:34 PM

Is SPAM of the view that his average high school student is a natural originalist or that the student would base a decision upon his/her current day views of the provision? Might the average high school student have an age bias? Perhaps SPAM's average high school student might think a ten year sentence is cruel and unusual? I would assume the average high school student would not have that much of an awareness of 200 years of SCOTUS caselaw.

# posted by

Shag from Brookline : 7:21 PM

Shag:

The term "cruel and unusual" has no objective meaning. Its like defining severe pain. The only advantage a judge has over the student in defining the term is the power to do so.

# posted by

Bart DePalma : 9:45 PM

I always took the prohibition on "cruel and unusual" punishments to prohibit judges from getting inventive, or ordering people tortured. It was adopted straight from the English bill of rights, where it had that meaning.

Naturally, the judiciary don't like the idea that this particular amendment was aimed straight at THEM.

# posted by

Brett : 6:47 AM

As has been learned from the beginnings of the Constitution, there are many provisions in the Constitution that have no objective meanings. But that hasn't stopped the evolving originalism movement that began in the 1970s from excavating pre- and post -Constitution selective writings in attempts to put forward, under the current version of originalism, views of the original public meanings of those provisions in the Constitution that had no objective meanings back then. Both SPAM and Brett seem to be wandering from their professed originalism/textualism.

Brett should be reminded that statutes provide for punishments from which judges make selections. Maybe Brett has in mind how it works with the Saudis. The prohibition is aimed at legislatures, with the judiciary making determinations as to whether legislative punishments are "cruel and unusual." But Brett walks in lockstep with SPAM, turds of a feather.

# posted by

Shag from Brookline : 7:06 AM

I've decided to "preserve" this recent Brett comment in case he decides to trash it:

***
I always took the prohibition on "cruel and unusual" punishments to prohibit judges from getting inventive, or ordering people tortured. It was adopted straight from the English bill of rights, where it had that meaning.

Naturally, the judiciary don't like the idea that this particular amendment was aimed straight at THEM.
# posted by Blogger Brett : 6:47 AM

***

Brett's "I always ... " discloses much about him, a middle-aged man who has self-trained in the law via Internet legal blogs, come loudly..

# posted by

Shag from Brookline : 7:37 AM

The link provided accuses the king of working with the judiciary to advance wrongs that the English Bill of Rights was put in place to address: "late King James the Second, by the assistance of divers evil counselors, judges and ministers employed by him" did such and such including matters involving bail, fines and punishment. There was parliamentary supremacy but at the very least that covers two branches government. Thus, e.g., the king's men could not torture prisoners.

Parliamentary supremacy is not a thing here. The 8th Amendment doesn't have a limit like the First. It doesn't say "the courts" or "judges." Prison guards, not being judges, don't have the power to torture. Congress doesn't have to power to authorize torture, including when carrying out possible inherent powers to punish & detain.

https://slate.com/news-and-politics/2005/03/what-happens-if-you-refuse-to-testify.html

Judges are clearly limited along with the rest of the government and multiple provisions of the Bill of Rights restrain them regularly. Thus, defendants in front of them, e.g., must receive due process, given rights like a lawyer even if a judge rather them not get one etc.

So, among other things, yes, judges are restrained to only apply authorized punishments -- not get "too inventive" -- and this includes (but by far is not limited to) things like torture.

# posted by

Joe : 7:41 AM

Brett is correct about the original target of the 8A being the judiciary. At the time we enacted the Constitution, the states operated under a common law criminal system. We enacted statutory criminal codes much later.

# posted by

Bart DePalma : 8:46 AM

By the Bybee [expletives deleted, despite Gina], consider the views of originalism's Saint Scalia and originalist Justice Thomas on "cruel and unusual" punishment meanings. SPAM's average high school student might be shocked by their views. Is SPAM? Or Brett?

# posted by

Shag from Brookline : 8:50 AM

Shag:

I part company with Scalia in his attempt to deductively define the undefinable 8A to allow all punishments permitted at the time the BoR was drafted. There is no evidence to arrive at this conclusion either in the text or the drafting and ratification history.

A judge could also reasonably deduct the 8A was enacted to eliminate cruel and unusual punishments employed at the time.

# posted by

Bart DePalma : 9:02 AM