Balkinization: Are oaths "absurd" or simply pathetic? Reflections of the Balkin-Green exchange

Are oaths "absurd" or simply pathetic? Reflections of the Balkin-Green exchange

Sandy Levinson

I am quite excited by the exchange between Jack and Chris Green about the meaning of the oath of fidelity to the Constitution. This is something that has interested me for a long time. One of the first things I discussed in my book Constitutional Faith was Barbara Jordan’s famous statement that her “faith in the Constitution is total.” I genuinely didn’t know whether to find this inspiring or simply intellectual absurd in almost every conceivable way. (Though one might be reminded of Tertullian’s statement that he believed in Christian doctrine because it was absurd. That was a feature, and not a bug.) I confess I have some of the same ambivalence these past couple of weeks when General Milley, the head of the Joint Chiefs of Staff, took care to remind all personnel in the armed forces that they take their oath to the Constitution and not to the person of the President, as much as the would-be tyrant Donald J. Trump might prefer that alternative. Milley’s letter was an important, even vital, intervention in our present parlous situation. Would that the flunky William Barr be reminded that he is not living under the Fuhrerprinzip.

That being said, the problem arises when one tries to supply genuine content to the meaning of “the Constitution” that one has sworn fealty to. How does the oath operate with regard to what I call The Constitution of Conversation—i.e. the only part of the Constitution that is really addressed in the American legal academy—as against the Constitution of Settlement that includes such words as two, four, six, two-thirds, or three-fourths? Textualism might be helpful with regard to the latter, but, quite obviously, “originalism” is almost totally beside the point inasmuch as no serious person, save in the most high-theory of high-theory seminars, will challenge the meanings of the numbers, or of the egregious reality that Donald J. Trump will remain President, with all of the legal powers assigned to his office, until January 20, 2021, even if he is decisively trounced in the November election. If you don’t believe me, just read the 20^th Amendment (which is never, to my knowledge, taught in courses on constitutional law).

I was also delighted by the fact that Jack brought up his own religious analogies when he referred to the otherwise mysterious fact that we can allude to “Judaism” or “Christianity” in spite of the fact that the definitions of these beliefs, practices, or whatever have changed drastically over the years. And I was particularly gratified by his offhand inclusion of Moses Mendelssohn in his list of Jewish thinkers who in fact transformed the meaning of being “Jewish” and thus loyal to the faith. As it happens, I am, with a philosopher friend, reading Mendelssohn’s truly fascinating book Jerusalem, which contains a riveting discussion of oaths. He is writing primarily of religious oaths, such as the kinds that many polities required of their residents in order to become full citizens (and which were barred by Article VI of the U.S. Constitution). But his skepticism about oaths certainly extends to quasi-religious oaths like those exacted from the President and, under Article VI, all public officials, whether state or national. What, indeed, do we think we’re doing, as a collective constitutional order, in requiring them? And does “originalism” offer the slightest help in answering that question? (Spoiler alert: The answer is absolutely not.)

So first, let us consider Mendelssohn’s critique of what might be viewed as the genuine pathos underlying the extraction of oaths:

It is impossible that I and my neighbor can unite the selfsame inward sensations to the selfsame words. For we cannot confront the former with one another, or form a comparison between them, and correct them, unless by words. [E.g., in disputing the meaning of “horse,” we can go outside and find what both of us agree is a “horse” and then determine, conclusively, that the typical horse has four legs and does not “moo” or “baa.” We cannot do any such thing if someone asks about the “general welfare” or “equal protection.” All we have is words, period. To be sure, there are some philosophers of science who would say the same thing about scientific categories. If one accepts those views, to put it mildly that gives no comfort to anyone wishing to say that there is some kind of “fact of the matter” to which our words must correspond. It’s turtles all the way down. But now back to Mendelssohn] We cannot define words by things, but again must have recourse to words or to symbols, and in the end to metaphors; because by that device, we, as it were, lead the conceptions of the internal sense back to external sensible impressions. But with that process, what confusion and obscurity will there not remain behind, in the signification of words? How will not the ideas vary, which different men, in different times and ages, link to the selfsame symbols and words? ….

And ye, my fellow-creatures, ye take a man, with whom, perhaps, ye never had any conversation about those matters; ye propose to him the most abstruse thesis in metaphysics and theology, clothed as they were, ages ago, in words or so-called symbols; ye make him swear by the most awful of names, that he associates with those words the very identical ideas which you yourself associate with them; and that both he and you associate with them the very identical idea associated with them by him, who wrote them down ages ago; you make him swear that he subscribes to those theses, and draws none of them into question, and with this subscription on oath, you connect office and dignity, power and influence, the temptation to which, removes so many a contradiction, hushes so many a doubt…

And consider as well James Madison’s musings on the nature of language in the all-important but far-too-little read or discussed Federalist 37:

The faculties of the mind itself have never yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. Sense, perception, judgment, desire, volition, memory, imagination, are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy. The boundaries between the great kingdom of nature, and, still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same important truth. The most sagacious and laborious naturalists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the ermination of the former and the commencement of the animal empire. A still greater obscurity lies in the distinctive characters by which the objects in each of these great departments of nature have been arranged and assorted.

When we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes from the efforts of human sagacity. Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science.

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. (emphasis added)

So the message is ultimately the same. In matters dealing with sense impressions, it is, perhaps, e.g., if one is a Lockean, possible to achieve a kind of certainty as to reference. In matters dealing with religious belief or, more to our particular point, the organization of government, it is simply foolish to believe there is a true “fact of the matter” that can be ascertained by reverting to original intent, public meaning, or whatever. They are, as many philosophers (but, apparently, not “originalists”) would concede, “essentially contested concepts,” so that, by definition, there is no genuine end to the conversation. It might begin at time X but that in no conceivable sense “fixes” the meaning, as Larry Solum might say, unless, of course, one is an historian and the evidence supports the proposition that “all respected thinkers” at time X believed, say, that only men had the faculties required to become full participants within the polity. That might be correct, as a statement of intellectual history, but it would be absurd to say that that belief, however “interesting” in terms of understanding our forbearers, has any purchase on us today.

Madison, unlike Mendelssohn, speaks of “liquidation” of disputes, but, of course, he does not in the least offer any guidance as to the time span of the “liquidation” and the possibility that a “liquidated” meaning at time X might be found unsustainable at time Y, including an assertion that the initial decision was “wrong at the time it was decided” and not, for example, merely overtaken by later events.

This doesn’t necessarily require adopting the view that originalism is “bunk,” as was well argued by my former colleague Mitch Berman (where originalism was actually a claim, as stated, say, by Robert Bork, that it was the only legitimate approach to constitutional interpretation, and not, as reduced by later “we’re all originalists now like Will Baude and Steve Sachs, one of the Bobbittian “modalities” that has no dispositive brought up against the claims of “doctrine” (i.e., precedent) or even “prudentialism” (i.e., a concern for the actual consequences of adopting a given rule or interpretation). It only requires recognition that originalism is basically of no help whatsoever in deciding what, today, it means for a President or a general, or any of the rest of us, genuinely to be faithful to the Constitution of the United States. If one is a “true originalist,” the “faithless” (or Hamiltonian) elector case ought to be easy, but almost no one, alas, agrees with that, including Keith Whittington, who has written one of the most interesting and well-developed defenses of originalism as a mode of constitutional interpretation. Perhaps he would respond that the meaning was “liquidated” by the early 19^th century, when the political party system supplanted the absurd hopes of the Framers that political parties could be avoided by placing leadership in the hands of virtuous, public-spirited men (and, of course, they assumed it would be only men). But why view 1804, or 18—whatever as the terminal date for “liquidation.” Perhaps it’s like saying the Prophetic tradition in Judaism ended with Malachi, so that anyone coming afterward was simply a “false prophet.” (This would, of course, include, Jesus and Mohammed, among others.) As Marshall suggested in McCulloch, and as I quote incessantly, any Constitution designed to “endure” must be “adapted to the great crises of human affairs,” which means that there is always further “liquidation” to be done as these crises in fact emerge, and Marshall certainly did not specify that the only mode of “adaptation” was Article V amendment.

To the extent that my rather banal observations are true, and I’d be genuinely interested as to why anyone would think they are not, they also challenge us to explain why we actually require oaths of civic worthies for any other reason than a barebones textualist adherence to the demands of Articles II and VI that officials must in fact take such oaths whether or not they have (or even could have) any genuine guidance as to what they are promising to do. Anthropologists would have little trouble understanding such practices. But anyone falling sway to the Enlightenment, such as Mendelssohn and Madison, might indeed have some explaining to do.

Posted 4:43 PM by Sandy Levinson [link]

Comments:

"and Marshall certainly did not specify that the only mode of “adaptation” was Article V amendment."

I don't recall him specifying that the Constitution was written in English, either.

I've rewritten this several times, to try to state this without causing offense, but it seems impossible, so I'll just blurt it out:

The purpose of the oath is to clarify that officers under the Constitution are actually supposed to follow it. To anybody who regards such obligations as of no weight, such oaths will, indeed, appear silly.

Stating that you find it silly simply tells the rest of us what we need to know about how far to trust you with any position of trust or authority.

# posted by

Brett : 5:05 PM

"The purpose of the oath is to clarify that officers under the Constitution are actually supposed to follow it."

The posters here have rewritten this several times, but I'll just blurt it out: there's no common understanding of "it". No oath can supply this deficiency.

# posted by

Mark Field : 5:49 PM

Thanks to Mark Field for his rebuttal to Brett. It's not merely, though, that "there's no common understanding of 'it.'" The fallacy is to think there is an "it" in the first place. It has become a commonplace to assert of collective institutions, like, say, the Supreme Court or Congress, that they "are not an it, but a they." We like to speak of "the Court" as having decided something, as if there is a singular body, but all of us know, whether we like the decisions or not, that they represent the coming together of distinctly different judges who agree, for whatever reason, to sign a given text.

The Constitution is also a "they," and not only because it was written by a collectivity coming together, very uneasily, in a variety of kicking-the-can-down-the-road compromises and hopes for the best. Rather, it is a collection of seven articles and sections that, to put it mildly, are sometimes in tension with one another (in part because of the fact of collective authorship and comprises. One immediate decision is whether to read the Constitution "holistically," as if the Constituiton is indeed an "it" (Akhil Reed Amar offers the best defense of such holistic readings) or instead, as is the practice in fact in almost all law schools, alas, to teach what have come to be called "clause-bound" readings of the Constitution, so that we debate the "meaning" of the Commerce Clause, or of the Fourteenth Amendment, etc., etc., etc. (And, by the way, is the Preamble part of the Constitution, or, for that matter, the "year of our Lord" phrase at the conclusion where the Constitution is signed and dated.) It is literally incredible to believe that any two people taking the oath will necessarily offer the same interpretations. I understand Brett's unwillingness to trust me with "any osition of trust or authority," but let me suggest that that is because he disagrees with my oft-expressed political views, not because he really believes that my view on the determinacy of the Oath is all that relevant. Surely he cannot believe that Donald J. Trump has ever thought for even ten seconds about the meaning of the Oath, any more, one might suggest, than he pondered the meanings of his wedding vows. But a lot of serious people in fact get married and think long and hard about their vows, but nonetheless discover over time that they and their spouses simply have different interpretations as life develops in all of its fullness, and they agree to go their own ways, either amicably or not. That is the way the world operates.

# posted by

Sandy Levinson : 6:02 PM

Interesting post. The issue of taking oath, is much less complicated or enigmatic. Has to do with greater issue:

Rituals. Why do we need to perform rituals. We need them in fact, in order, to distinguish between the current sacred moment, or, the severity of the presence, and routine. So, the post, has presented to us, the issue of scope of words and expressions v. objects, terminology and reality. That is to say, that it is one thing to have chat, spontaneous small talk, and another thing indeed, to feel, to perceive the "Historingbells" means: how heavy and demanding is the responsibility one assumes, while:

Taking office, signing contract, signing statement or affidavit etc... So, one person, would consider and reconsider his words. Words are like money indeed, don't spend don't repent. Think twice. Talking is cheap. Wanting is good. Yet, you will have to deliver the good. This is not a game, of small talk.

So, if one person, assumes, certain heavy and serious task. He needs to distinguish it, from daily occurrences and engage from now and on, in new frame of work and responsibility. Indeed, speaking of Trump:

It is one thing to be real estate agent, or developer or whatever, and another, to step in to the oval office, and seal the fate of so many. He must be warned. This is not a game. And if it is, deadly one.

Thanks

# posted by

el roam : 6:13 PM

Just clarifying it:

"Historingbells" in my comment above: is made of:

History- ring - bells

Just certain spontaneous translation/transformation, from other languages.

# posted by

el roam : 6:34 PM

Oaths to comply with laws only have purchase with those who first believe in the rule of law.

The claim we cannot comply with laws because words have no meaning, at least until divined by a priesthood of lawyers and judges like the organs of a sacrificial lamb, is self-serving horse manure meant to excuse violations of the Constitution and thus the oaths to defend and support the Constitution.

For the most part, the Constitution is straight forward document, full of mandatory words like "shall." For the most part, lay representatives of the People should have no problem understanding what is required of them. For example, what part of "All Legislative Powers herein granted shall be vested in a Congress of the United States" would be a mystery to a POTUS or bureaucracy seeking to rule by decree?

And, yes Sandy, lay representatives can even apply general concepts like "equal protection of the law.." If your law or application of the law only applies a benefit or penalty to one group of the People, then you are very likely not providing "equal protection of the law."

Of course, there will be disputes on the margins over applying the Constitution to some set of facts, which is why we have a separation of powers requiring an effective supermajority consensus to exercise power, backed up by a judiciary to decide cases and controversies.

The real problem with oaths is they operate on the honor system and honor is a quaint concept in an increasingly totalitarian world of power politics where the ends justify any and all means, no matter how dishonest.

# posted by

Bart DePalma : 7:13 PM

What Bart said.

Sandy, you write blog posts, comments, law review articles. Do you do so in the belief that there is not "it" in your writings? That you're shouting into the wind, and nobody will understand your meaning? No, of course not. You believe in, rely on, the capacity of language to communicate meaning. Even when you collaborate with another writer, you don't think it deprives your collective work of meaning.

Until it comes to meanings you don't like. Then you're like someone who shuts off their radio and claims the station is off the air. When you do this you're not being any more profound than a child who sticks their fingers in their ears and sings because they don't want to hear what their parents are saying.

This relates back to your dismissal of oaths. Everyone in a position of authority in our government swears an oath to the Constitution. A constitution you've grown to despise. If everybody shared your view of oaths, they could recite the words in a sardonic tone of voice, everybody would have a good laugh, and then they'd openly violate the Constitution for all to see, admitting what they were doing.

But, of course, a lot of people take such oaths seriously. So they can't admit to violating it, maybe not even to themselves. They have to rationalize what they're doing, they have to pretend to be keeping their oath.

The Constitution being so vague that, except for some numbers, you can't tell what it means, and so have no choice but to make up a meaning, is how they pretend. How you pretend. If you were right about oaths, there'd be no need to pretend. They pretend because the oaths really do matter, to the point where they don't dare just come out and admit to violating them.

When enough people pretend the same thing, I suppose their consciences hurt a little less. But only a little.

# posted by

Brett : 8:27 PM

It doesn't surprise me that Brett is incapable of believing that people of good faith can sincerely disagree about the meaning of a document. But here, Prof. Levinson put in bold Madison's language in Federalist 37. Do you think Madison was "pretending" there? That he "pretended" when he took his oath of office, believing as he did and remembering what he wrote? That everyone who takes an oath in court "pretends" to believe the same things about the Bible (or, indeed, *which* Bible) they swear upon?

I guess Inquisitors think like that, but I hope few others do.

# posted by

Mark Field : 9:30 PM

"It doesn't surprise me that Brett is incapable of believing that people of good faith can sincerely disagree about the meaning of a document."

Conspiracy paranoids have to have an evil, scheming cabal in there somewhere for everything.

# posted by

Mista Whiskas : 9:52 PM

You have to appreciate Bircher Bart's rare ability to regularly choose examples that deconstruct his entire point. Whatever the writers and ratifier so of the 14th meant equal protection of the law to mean they (being the same people who passed several laws providing relief for *forner slaves* [and at times even specifying black former slaves]) certainly didn't mean what Bircher Bart puts forward here.
But this is the same person who once argued here that the word person means one thing in Section 1 of the 14th than it does in Section 2. No one takes the law as written or understood at the time as less important than Bircher Bart.

# posted by

Mista Whiskas : 9:58 PM

This comment has been removed by the author.

# posted by

Joe : 11:50 PM

Bircher Brett engages in a typically sloppy reasoning of 'if the text doesn't mean one certain thing it must mean everything and therefore nothing.' But that's a silly false dilemma. Human concepts and language are, unfortunately for those like Bircher Brett who wants to live in a simple, concrete black-and-white world (except when it comes to those beautiful Confederate monuments, amirite?), susceptible to different understandings by reasonable, well meaning persons. This doesn't make them infinitely malleable. But take the seemingly simple and straightforward Biblical admonishment: Thou shalt not kill. Reasonable, well meaning people (indeed, people betting their eternal souls on it) have come to different conclusions about this four word commandment (one of Bircher Bart's 'simple' 'shalls'): does it command abstention from any killing, including war and self defense (many faith traditions do so conclude), or simply what we think of as 'murder?' Does it include abortion (it almost certainly did not when written, at least up until quickening)? How about 'mercy killings' or assisted euthanasia? The fact that so many people wrestled so earnestly with these questions over a seemingly simple four word commandment for centuries before there was any 'red' or 'blue' to fit one's potential conspiracy theory should demonstrate that the reading and interpretation of long, complex document like the Constitution is of course going to yield lots of competing and completely reasonable differences of opinion on many parts of the document.

# posted by

Mista Whiskas : 5:28 AM

Oh, sure, nobody is going to read the interstate commerce clause, and claim it means that roses are blue. It's not being treated as THAT ambiguous, there's no motive to do so, and nobody wants the resulting ridicule anyway. Though somebody might look at the Ninth amendment, and call it an inkblot. I think that could plausibly happen, while most justices would be content with merely never, ever applying it, and saying nothing.

But people are perfectly willing to read a clause that gives Congress the authority to regulate a specific subset of commerce, and claim it lets Congress regulate basically everything, regardless of whether it belongs to that subset, or indeed is even commerce. Willing to read the clause as if it said, "to regulate" and stopped there, with the remaining words meaningless surplusage. And that by itself is too far down the rabbit hole for the rule of law to survive.

# posted by

Brett : 6:31 AM

Actually, the InterState Commerce clause jurisprudence is a good example since it might simplistically seem to be the worst case of going against the text. One needs to remember that the IC Clause is a *grant* of powers to the federal government. Sure, in a system of enumerated powers there's the *implication* that what lies outside the clause is not available to the federal government. But the *explicit* text a judge has in front of them is this grant, this thing the Founders wanted to make sure the federal government *could do.*

Now, what if you were faced with a situation where it appears the granted power would be an empty one if you stayed strictly in the confines of the *implication?* It's certainly reasonable to conclude that intra-state economic activity is inextricably tied to inter-state economic activity in a modern industrial economy. That's not the fault of the interpreters, it's a change in the world (and a very radical one at that). And so, faced with this fact and with the oath to make sure the *explicit* grant isn't hollow, it's just not un-reasonable or dishonest to rule as the Court did in Wickard.

And, again, this is probably the strongest case those arguing against 'living constitutionalist' readings can make.

# posted by

Mista Whiskas : 6:42 AM

"Sure, in a system of enumerated powers there's the *implication* that what lies outside the clause is not available to the federal government."

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

It's not an implication, the 10th amendment is a rule of interpretation that baldly states that: If it's not delegated, the federal government doesn't get it.

"Now, what if you were faced with a situation where it appears the granted power would be an empty one if you stayed strictly in the confines of the *implication?*" [Not an implication!]

Then the granted power is an empty one until you get an amendment. That's what it means to have the rule of law: "This is bad policy" isn't a magical get out of following the law card. Because I guarantee, every time you flash that card, somebody else thinks it's GOOD policy, and the law was written the way it was to settle your argument.

# posted by

Brett : 7:19 AM

But this sort of begs the question: what's entailed in the explicit delegation of power in the IC clause, especially if intra-state activity is inextricably involved? Take this analogy: someone like Bircher Brett might say 'the Bible says plainly thou shalt not kill, yet you have done so called believers arguing to defend the law enforcement defense of deadly force against those who they reasonably believe to be imminent dangers of inflicting deadly force of others! What part of thou shalt not kill do they not understand?'

Remember several non-FDR justices went along with the decision in Wickard. Sure, argue it's wrongly decided, but to argue it's so unreasonable as to conclude bad faith says more about the lack of intellectual imagination of the one making that conclusion than anything else.

# posted by

Mista Whiskas : 8:03 AM

Mr. W: You have to appreciate Bircher Bart's rare ability to regularly choose examples that deconstruct his entire point. Whatever the writers and ratifier so of the 14th meant equal protection of the law to mean they (being the same people who passed several laws providing relief for *forner slaves* [and at times even specifying black former slaves]) certainly didn't mean what Bircher Bart puts forward here.

Which writers or ratifiers? This is why you apply laws as written and why those serving the People swear an oath to uphold the Constitution, not the original intent of a writer or ratifier.

Sure, in a system of enumerated powers there's the *implication* that what lies outside the clause is not available to the federal government...Now, what if you were faced with a situation where it appears the granted power would be an empty one if you stayed strictly in the confines of the *implication?*

Impossible.

When the Constitution grants Congress the powers of A, B and C, it impliedly excludes D, not A.

It's certainly reasonable to conclude that intra-state economic activity is inextricably tied to inter-state economic activity in a modern industrial economy. That's not the fault of the interpreters, it's a change in the world (and a very radical one at that).

Irrelevant.

The Constitution expressly and only granted Congress the power to regulate interstate commerce, not the interstate or intrastate economies.

Furthermore, whether or not you or a court believes the Constitution's grant of power is insufficient to accomplish your preferred goals is irrelevant.

And so, faced with this fact and with the oath to make sure the *explicit* grant isn't hollow, it's just not un-reasonable or dishonest to rule as the Court did in Wickard.

Both dishonest and a violation of their oath to support the Constitution.

# posted by

Bart DePalma : 8:26 AM

There might be room to argue around the margins, but any interpretation of the clause that allows it to reach what it has explicit language to exclude is a non-starter.

It's a clause authorizing regulation of commerce. If it ain't commerce, it doesn't authorize regulating it.

It's a clause authorizing regulation of commerce across specified boundaries. If the commerce doesn't cross those specified boundaries, it doesn't authorize regulating it.

Any interpretation which renders most of the language of the clause without force is a bad interpretation!

Does this render regulation of actual interstate commerce less than 100% effective and easy? Yeah, it does. That's the natural result of not giving the government free reign, sometimes it has trouble getting its way. Boo hoo.

# posted by

Brett : 8:26 AM

Whatever the writers and ratifiers of the 14th understood equal protection of the law to mean they (being the same people who passed several laws providing relief for *forner slaves* [and at times even specifying black former slaves]) certainly didn't understand it to mean what Bircher Bart puts forward here.

# posted by

Mista Whiskas : 8:29 AM

"any interpretation of the clause that allows it to reach what it has explicit language to exclude is a non-starter."

Again, what's explicit in the clause is the grant, not a prohibition. And like thinking 'thou shalt not kill' is compatible with the law enforcement defense can be reasonable so can thinking intra state activity inextricably tied to interstate commerce is compatible with the clause be quite reasonable (especially in light of the N&P clause).

The artificially constrained readings of 'commerce' are a much worse argument. Certainly one can reasonably think that a broad grant to regulate 'commerce' includes the various stages of that commerce (in fact it's almost unreasonable to hold otherwise).

# posted by

Mista Whiskas : 8:35 AM

Mr. W: Whatever the writers and ratifiers of the 14th understood equal protection of the law to mean they (being the same people who passed several laws providing relief for *forner slaves* [and at times even specifying black former slaves]) certainly didn't understand it to mean what Bircher Bart puts forward here.

Consistency is hardly a hallmark of a Congress made up of dozens of representatives from across a continental nation, especially in the heat of a Civil War.

One more reason to apply the Constitution as written instead of engaging in "original intent" snipe hunts.

# posted by

Bart DePalma : 8:41 AM

The original understanding of the words used by the writers and read by the ratifiers isn't a snipe hunt, it's the supposed foundation of the text's legitimacy. And no one re the 14th understood laws which benefited only one or a limited class of persons as violating the concept of equal protection of the law.

# posted by

Mista Whiskas : 8:55 AM

Mr. W: The original understanding of the words used by the writers and read by the ratifiers isn't a snipe hunt, it's the supposed foundation of the text's legitimacy. And no one re the 14th understood laws which benefited only one or a limited class of persons as violating the concept of equal protection of the law.

Original meaning is indeed superior to original intent.

This is basic contract law. (1) Apply the contract as written. (2) If the writing involved a term of art, apply the meaning at the time of the writing. (3) Only of the writing is vague or susceptible to more than one meaning do you consider parole evidence of original intent.

We do not get beyond the first step here. Equal means equal.

# posted by

Bart DePalma : 9:04 AM

" And no one re the 14th understood laws which benefited only one or a limited class of persons as violating the concept of equal protection of the law."

You don't think that the fact they were dealing with people who had actually been slaves, rather than just superficially looking like such long dead people, has any relevance? That there's no 14th amendment between passing a law to benefit actual former slaves, and passing a law to benefit people who happen to look like long dead former slaves?

# posted by

Brett : 9:16 AM

"Equal means equal."

Like all tautologies this is useless. What's important is to know what does equal protection of the law involve. And since our history is rife with legislation helping out particular classes of persons (at others expense of course) it's fair to say that most people, including the ratifiers of the 14th, did not understand the 14th's text to mean what Bircher Bart says it must. That blows his entire argument up in the usual spectacular fashion (in arguing that the text is simple and obvious he chose an example where he himself got it plainly wrong, demonstrating it's not so simple or obvious.).

# posted by

Mista Whiskas : 9:29 AM

"You don't think that the fact they were dealing with people who had actually been slaves, rather than just superficially looking like such long dead people, has any relevance?"

It doesn't in reply to Bircher Bart's contention that it's a EC violation to pass measures that benefit specific classes of people (former slaves are so).

# posted by

Mista Whiskas : 9:30 AM

Mr. W: And since our history is rife with legislation helping out particular classes of persons (at others expense of course) it's fair to say that most people, including the ratifiers of the 14th, did not understand the 14th's text to mean what Bircher Bart says it must.

The fact legislatures love to enact legislation favoring or disfavoring a class of the People does not change the meaning of the word "equal."

Of note, courts routinely, ahtough not universally, struck down such "class legislation" until the Progressives started rewriting the EPC.

# posted by

Bart DePalma : 9:33 AM

An agreement puts responsibilities on both sides even if one does not take a special oath though notarization often is involved & that adds an oath/affirmation to the affair. An agreement might be implicit. When you do business in public, you agree to certain things. This includes customers.

The constitutional oath/affirmation is a type of ceremonial act that reinforces this, originally with a special supernatural understanding of part of the enforcement mechanism. I think such things have some value (I'm not going to handwave the value of a marriage ceremony) but how does it really do that much to settle the hard questions?

We have now gone into the debates over details (I'll cover that separately) but the oath doesn't really change much here. Sandy Levinson et. al. quite honestly think the Constitution means certain things. The idea the oath doesn't do much really (btw one criticism of test oaths was how bad people can take oaths w/o much concern for violating it, but the very act made it seem more protective than it really is) doesn't change all of that.

The people who "violate" constitutional limitations (and there are a lot of basics we agree with) do so in good faith most of the time. This is hard to believe for some, on all sides, since it all seems so obvious. As James Madison, who an "originalist" should think has something of value here, noted, it isn't.

# posted by

Joe : 9:56 AM

Three case studies.

[1] The 10A says that what power is not delegated (not "expressly" enumerated) or otherwise barred is left to the states or people. A useful principle to put in red ink (all aspects of it), but it is not magic wand to settle hard questions.

The "10A" often is used to mean more, including structural things felt implied such as that marriage is largely a state affair so that even when the Congress uses explicit powers to regulate, it is deemed problematic. Or, it this principle is even used to put a gloss on explicit barriers -- education is local as a defense of segregation etc.

[2] Interstate commerce. After we get undisputed stuff (grant of power etc.).

Then, we go to harder issues. As to intrastate activity that very well affects interstate commerce, John Marshall -- a ratifier -- and others noted obviously to some extent the clause includes power to deal with that. If intrastate commerce in a variety of ways interferes with interstate commerce, it is regulating the latter to address it in a variety of ways. And, Congress -- set up in a way to protect the interests of states etc. -- has broad policy discretion there.

Plus, as Marshall and others noted -- including Hamilton and Madison -- enumerated powers also has things that are necessary and proper to bring them into being. A bank is not part of the armed forces. But, a national bank might be necessary and proper to run a war etc.

[3] Equal protection -- If originalism is your thing, the 13-14A was brought about by basic principles against class discrimination & what slavery is. TO me, that also is a good way to apply the text. Sandy Levinson co-wrote an article showing the broad idea there. The fact that currently black people are better off than freemen in 1865 doesn't change that any more than answering Brett's cries of "censorship" regarding regulation campaign finance is simply answered by noting that back then censorship was silencing socialists.

# posted by

Joe : 10:12 AM

"The fact legislatures love to enact legislation favoring or disfavoring a class of the People does not change the meaning of the word "equal.""

These are the legislatures that wrote and ratified the 14th we're talking about.

It's absurd to think 'equal protection of the law' must mean no legislation that benefits a specific group of people, almost all legislation does so. Again, Bircher Bart's example torpedoes his entire point.

# posted by

Mista Whiskas : 10:33 AM

Mr. W: It's absurd to think 'equal protection of the law' must mean no legislation that benefits a specific group of people...

Why?

...almost all legislation does so.

Old racial discrimination and modern progressive.

The common law and then statutory criminal code applies to everyone.

Public goods like education and infrastructure should be available to everyone.

# posted by

Bart DePalma : 11:47 AM

I think Prof. Levinson is basically right, but this is a bit of an overclaim:

It only requires recognition that originalism is basically of no help whatsoever in deciding what, today, it means for a President or a general, or any of the rest of us, genuinely to be faithful to the Constitution of the United States.

Originalism is of some help. I say this as a huge critic of it. But it is some help.

What originalism can do is eliminate some attractive arguments that don't really work when historical context is considered.

Here's an example. One could argue that the "involuntary servitude" provision of the Thirteenth Amendment prohibits conscription, or any form of prison labor. Those arguments get thrown around by libertarians a fair amount. But understanding that the historical context of the Thirteenth Amendment was about slavery informs us as to why that doesn't work; there was nobody out there saying we needed to pass the Thirteenth Amendment to end the draft, even though the draft was a highly charged controversial political issue at the time the amendment was adopted. Similarly with prison labor.

Now note, originalism is just one tool in the toolkit. But it can help. It can tell you certain things about the scope of the language being used.

The problem is that's basically the only thing it can do. It can't tell you how to apply the Constitution to modern issues. It can't tell you in any accurate way how to make the laws workable. And it can't even supply a determinate meaning of most constitutional provisions, because history is so malleable.

So it has a limited role in statutory and constitutional interpretation, just as it has a limited but important role in contract interpretation.

# posted by

Dilan : 12:41 PM

It's a clause authorizing regulation of commerce. If it ain't commerce, it doesn't authorize regulating it.

My big problem with conservatives on the commerce clause isn't this, it's two other things:

1. As Joe notes, there's also a necessary and proper clause. You have a regulation of commerce. For it to work, you need some regulation of some things that may not be coommercial in nature, or may not be interstate in nature. Why is it such a terrible interpretation of the Constitution to say the N&P clause allows it?

2. The courts tried to draw distinctions between "commerce" and other things, most notably "manufacturing" in E.C. Knight and Hammer v. Dagenhart, and it fell apart. Because manufacturing stuff for sale IS a form of commerce. Samuel Johnson said no man but a blockhead wrote, except for money (see Mazer v. Stein), and no factory owner but a blockhead manufactured anything, except for money.

"Commerce" in 2020 is simply a very broad concept, because we have become a globalized, interconnected economy. In 1787, you can certainly argue there wasn't a lot of commerce among the several states. How many multi-state corporations were there? How many transactions ever crossed a state line? Most of what you did was local, go down to the local merchant and buy stuff.

But in 2020, that's no longer true. You can still argue that there's some stuff, like growing your own pot for your own use, or growing your own wheat for consumption on your own farm, where you can argue the Court got it wrong and it was a purely local activity. But the vast majority of what we do is buy stuff that has traveled across state lines, from sellers who operate across state lines. So the commerce power grew exponentially. This is not because of any liberal conspiracy. It's because of reality.

# posted by

Dilan : 12:50 PM

Do you think Madison was "pretending" there? That he "pretended" when he took his oath of office, believing as he did and remembering what he wrote? That everyone who takes an oath in court "pretends" to believe the same things about the Bible (or, indeed, *which* Bible) they swear upon?

I think James Madison was both a very dishonest person and a very incompetent one, and we shouldn't really care what he believed.

I also think in general, political theory works better if you assume all politicians are lying all of the time. Epistemological theory certainly works better that way.

We are in 2020. I don't understand why we worship a bunch of dead white males whose most important goal in life was to come home and rape their slaves.

# posted by

Dilan : 12:53 PM

"should be available to everyone."

This is true for welfare state programs (anyone who meets the eligibility for SNAP, TANF, WIC, etc., can get them).

# posted by

Mista Whiskas : 12:54 PM

"It can tell you certain things about the scope of the language being used."

Does it help there? For example, the writers and ratifiers of the 14th Amendment EPC weren't worried about programs benefiting blacks being unfair to whites (well, this was debated but the other side lost which only bolsters the point I think) when they used general terminology, but the terminology adopted was ultimately general. That's been used by the Court to, for example, strike modern day affirmative action programs.

# posted by

Mista Whiskas : 12:57 PM

Dilan: One could argue that the "involuntary servitude" provision of the Thirteenth Amendment prohibits conscription, or any form of prison labor.

Excellent argument concerning the draft. Not so much for denying liberty and property to those convicted of crimes with due process.

"Commerce" in 2020 is simply a very broad concept

Same thing as it ever was - the trade in goods and services. This definition is clear and unchanging.

Because manufacturing stuff for sale IS a form of commerce.

Not remotely. Anyone who claims so is ignorant of business operations or, more likely, dishonest. If I manufacture the more perfect mousetrap, but never trade it to another, there is no commerce - PERIOD.

You have a regulation of commerce. For it to work, you need some regulation of some things that may not be coommercial in nature, or may not be interstate in nature.

Why?

Why is it such a terrible interpretation of the Constitution to say the N&P clause allows it?

Once again, the N&P Clause grants Congress the power to enact legislation to necessary to exercise the power. For example, to create an agency to enforce a law regulating interstate commerce. The N&P Clause DOES NOT expand the enumerated power one iota beyond the regulation of interstate commerce to reach any other part of the economy.

# posted by

Bart DePalma : 1:24 PM

" I don't understand why we worship a bunch of dead white males whose most important goal in life was to come home and rape their slaves."

I don't particularly worship them. I think they were pretty smart guys, who weren't such saints as to entirely rise above the age the were born into. From a perspective of 200 years later, who looks good in retrospect?

But the wrote a constitution we still use, and the only real claim our rules have to rule us is that they're following it. Should they decide to ditch it without going through an Article V convention, I'm game for hanging them all from the nearest lamp post. And I don't mean that metaphorically.

# posted by

Brett : 1:32 PM

"Excellent argument concerning the draft. Not so much for denying liberty and property to those convicted of crimes with due process."

The 13th amendment, as anybody who bothers to read it would notice, actually authorizes slavery and involuntary servitude as a criminal penalty!

# posted by

Brett : 1:43 PM

Does it help there? For example, the writers and ratifiers of the 14th Amendment EPC weren't worried about programs benefiting blacks being unfair to whites (well, this was debated but the other side lost which only bolsters the point I think) when they used general terminology, but the terminology adopted was ultimately general. That's been used by the Court to, for example, strike modern day affirmative action programs.

At this point it doesn't matter because we have 42 years of caselaw on affirmative action.

But at the time of Bakke? It should have mattered.

# posted by

Dilan : 1:53 PM

Not remotely. Anyone who claims so is ignorant of business operations or, more likely, dishonest. If I manufacture the more perfect mousetrap, but never trade it to another, there is no commerce - PERIOD.

You ignored Samuel Johnson/Mazer v. Stein. Nobody manufactures stuff (except on the margins) except because they intend to sell it. Large-scale manufacturing is part of commerce.

# posted by

Dilan : 1:54 PM

Once again, the N&P Clause grants Congress the power to enact legislation to necessary to exercise the power. For example, to create an agency to enforce a law regulating interstate commerce. The N&P Clause DOES NOT expand the enumerated power one iota beyond the regulation of interstate commerce to reach any other part of the economy.

Where's this in the text of the N&P clause? If a regulation of non-commerce, or commerce not among the several states, is truly necessary to make the regulation of commerce work, why wouldn't it be within the N&P clause? That seems like the precise purpose of the thing.

# posted by

Dilan : 1:56 PM

The 13th amendment, as anybody who bothers to read it would notice, actually authorizes slavery and involuntary servitude as a criminal penalty!

There's an exception in the text, but there are nonetheless arguments made every now and then as to how it would still bar some forms of prison labor.

# posted by

Dilan : 1:59 PM

From a perspective of 200 years later, who looks good in retrospect?

Given how much he ignores what Madison, Marshall et. al. said when saying what the text means, only so good to BB, apparently.

But the[y] wrote a constitution we still use, and the only real claim our rules have to rule us is that they're following it.

I'm not totally sure what is being said here but the framers themselves said the text is often open-ended, would be left to experience to determining the hows (Madison was specifically quoted on the point) and put in language to give people later on a lot of discretion to apply the text. As the rabbis said when God tried to intervene when interpreting the Torah, "you gave it to us, it's ours to interpret."

The 13th amendment, as anybody who bothers to read it would notice, actually authorizes slavery and involuntary servitude as a criminal penalty!

The 13A, one provision in the Constitution, while banning something left a loophole, and it isn't even clear what exactly is allowed by it. Both slavery and involuntary servitude? Only the latter? All types? What about the 14A that came after it which put in more limitations on governmental power? What if it was later deemed a violation of cruel and unusual punishment? etc.

# posted by

Joe : 2:15 PM

These discussions of originalism tend to speak of "two hundred years" etc. but the basic discussion is how to interpret a constitution. There is a lawsuit pending concerned about the 26A, ratified while some who read this blog was alive.

Some time ago, on some talk show, a person said he was involved in the creation of some state constitution. There being many new versions over the years. He thought originalism didn't make much sense.

So, though it is a factor tossed in, it isn't just long ago people, many of whom were disreputable and something ratified when only a small portion of the population could vote etc. This is far from academic since new amendments are possible though two hundred years from now, many will think us dubious sorts too living in corrupt inequitable system.

# posted by

Joe : 2:23 PM

BD: Once again, the N&P Clause grants Congress the power to enact legislation to necessary to exercise the power. For example, to create an agency to enforce a law regulating interstate commerce. The N&P Clause DOES NOT expand the enumerated power one iota beyond the regulation of interstate commerce to reach any other part of the economy.

Dilan: Where's this in the text of the N&P clause?

Seriously?

"Congress shall have Power...To make all Laws which shall be necessary and proper for carrying into Execution the [enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Dilan: If a regulation of non-commerce, or commerce not among the several states, is truly necessary to make the regulation of commerce work, why wouldn't it be within the N&P clause?

Never necessary.

You are welcome to offer an example.

Dilan: Because manufacturing stuff for sale IS a form of commerce.

BD: Not remotely. Anyone who claims so is ignorant of business operations or, more likely, dishonest. If I manufacture the more perfect mousetrap, but never trade it to another, there is no commerce - PERIOD.

Dilan: You ignored Samuel Johnson/Mazer v. Stein. Nobody manufactures stuff (except on the margins) except because they intend to sell it. Large-scale manufacturing is part of commerce.

I am indeed ignoring all of the ignorant and/or dishonest case law in this area.

Let's assume I build the better mouse trap with the intent of trading it across state lines. This intent in no way, shape or form expands Congress's power to regulate my interstate commerce back the business process to directing whether and how I build my mouse trap.

# posted by

Bart DePalma : 2:38 PM

Never necessary.

You are welcome to offer an example.

Congress bans the fraud in the sale of insurance across state lines. Insurance companies respond by incorporating subsidiaries within states, and claim that such companies are not operating in interstate commerce. Congress responds by banning multi-state companies that operate intrastate subsidiaries that sell fraudulent insurance.

The first regulation is an exercise of the Commerce power. The second regulation is an exercise of the necessary and proper power.

There's just a million permutations of this. You want a bright line, because you want to neuter the necessary and proper clause. But that's just your ideology speaking.

Let's assume I build the better mouse trap with the intent of trading it across state lines. This intent in no way, shape or form expands Congress's power to regulate my interstate commerce back the business process to directing whether and how I build my mouse trap.

You are the dishonest one here. It's not merely a matter of intent. If you build one mousetrap, in your home, in the hope that you can eventually engage in interstate commerce, I could certainly accept as plausible the argument that you haven't engaged in it yet.

But when you have a factory that builds mousetraps which are sold and shipped all over the country, we are no longer talking about your "intent" at all. That's commercial activity, not a mere intention.

And the fact that you are pretending to not know the difference is dishonest.

# posted by

Dilan : 3:10 PM

Dilan: Dilan: If a regulation of non-commerce, or commerce not among the several states, is truly necessary to make the regulation of commerce work, why wouldn't it be within the N&P clause?

BD: Never necessary. You are welcome to offer an example.

Dilan: Congress bans the fraud in the sale of insurance across state lines. Insurance companies respond by incorporating subsidiaries within states, and claim that such companies are not operating in interstate commerce. Congress responds by banning multi-state companies that operate intrastate subsidiaries that sell fraudulent insurance.

Fraud in the sale of insurance is commerce. This is not an example of regulation of non-commerce.

Assuming the hypothesized commerce in insurance is indeed intrastate, then the problem falls within the jurisdiction of the affected state, not Congress.

# posted by

Bart DePalma : 3:29 PM

Dilan: You ignored Samuel Johnson/Mazer v. Stein. Nobody manufactures stuff (except on the margins) except because they intend to sell it. Large-scale manufacturing is part of commerce.

BD: Let's assume I build the better mouse trap with the intent of trading it across state lines. This intent in no way, shape or form expands Congress's power to regulate my interstate commerce back the business process to directing whether and how I build my mouse trap.

Dilan: But when you have a factory that builds mousetraps which are sold and shipped all over the country, we are no longer talking about your "intent" at all. That's commercial activity, not a mere intention.

You raised the issue of intent, not I.

Let's assume I build the better mouse trap in a factory and trade it across state lines. The fact I manufacture the mouse trap in no way, shape or form expands Congress's power from regulating my interstate commerce back along the business process to directing whether and how I build my mouse trap.

# posted by

Bart DePalma : 3:39 PM

"The fact I manufacture the mouse trap in no way, shape or form expands Congress's power from regulating my interstate commerce back along the business process to directing whether and how I build my mouse trap."

This is a ridiculous position.

Company X makes doohickey Y. They have designers and developers for Y in several states, but all the in-person meetings in designing and developing it happen in Maine. Once designed they have the product manufactured in their two plants, one in Maine the other Ohio. The raw material comes from three mines in Idaho, Utah and Georgia, all arranged by their traveling purchase agents. The Ohio plant is near the West Virginia border, 1/3 of the workforce travels over the state lines daily to work there. The head of the factories of course check in with the Maine HQ regularly, bi-weekly in person. The product is then shipped from the Ohio and Maine plants to distribution centers in all 50 states. Each branch store in each state goes to the distribution center and gets their regular order and takes it back to their branch location. From this location the salespersons pick up their allotment and go out to make sales.

According to Bircher Bart's logic, the only part of this clearly inter-state business venture can be regulated is, what, the shipping of the finished product to the branch locations? That's laughable.

This is why the Court had to drop trying to draw silly, artificial, abstract lines between what is 'manufacture' vs. 'commerce,' etc., and just realize what every company engaged in inter-state commerce already knew: they were all necessary, important stages in their commerce.

# posted by

Mista Whiskas : 5:27 PM

Let's assume I build the better mouse trap in a factory and trade it across state lines. The fact I manufacture the mouse trap in no way, shape or form expands Congress's power

Congress' power doesn't need expanding. Manufacture for sale is commerce. You just don't like the result of a federal government having all this power. But that's not a constitutional objection.

# posted by

Dilan : 5:29 PM

"Should they decide to ditch it without going through an Article V convention, I'm game for hanging them all from the nearest lamp post. And I don't mean that metaphorically."

It doesn't take long in a conversation to get Bircher Brett to start making threats of violence...Remember when he would come on here and lament how uncivil it was that people say mean things or don't want to associate with people whose beliefs they abhorred?

The least self-aware person in the universe.

# posted by

Mista Whiskas : 5:36 PM

Dilan: Congress' power doesn't need expanding. Manufacture for sale is commerce.

Not in normal meaning and certainly not in the original, pre-industrial revolution meaning of that word.

# posted by

Bart DePalma : 5:42 PM

BD: "The fact I manufacture the mouse trap in no way, shape or form expands Congress's power from regulating my interstate commerce back along the business process to directing whether and how I build my mouse trap."

Mr. W: This is a ridiculous position. Company X makes doohickey Y. They have designers and developers for Y in several states, but all the in-person meetings in designing and developing it happen in Maine. Once designed they have the product manufactured in their two plants, one in Maine the other Ohio. The raw material comes from three mines in Idaho, Utah and Georgia, all arranged by their traveling purchase agents. The Ohio plant is near the West Virginia border, 1/3 of the workforce travels over the state lines daily to work there. The head of the factories of course check in with the Maine HQ regularly, bi-weekly in person. The product is then shipped from the Ohio and Maine plants to distribution centers in all 50 states. Each branch store in each state goes to the distribution center and gets their regular order and takes it back to their branch location. From this location the salespersons pick up their allotment and go out to make sales.

I bolded the only two examples of "interstate commerce" in your hypo.

Congress does indeed have the power to make regular the interstate trade in raw materials and then the finished product, but nothing else in your hypo.

# posted by

Bart DePalma : 5:54 PM

"Congress does indeed have the power to make regular the interstate trade in raw materials and then the finished product, but nothing else in your hypo."

That's why the position is palpably ridiculous, it's obvious everyone working for the company is involved in the same venture. Companies sure see it this way (they wouldn't see those involved in the two highlighted things to be involved in a different project).

I mean, Bircher Bart thinks commerce just means 'shipping.'

# posted by

Mista Whiskas : 6:01 PM

Note, when the purchase agents drive from Maine to other states and negotiate sales that is not interstate commerce according to Bircher Bart. When the plant managers in Ohio coordinate with their bosses in Maine about how many doohickeys to send to the 50 different states they are not involved in interstate commerce. When the developers of the doohickey travel from several states to meet to design the product and plan multi-state production efforts they are *not engaged in interstate commerce.*

Thus a silly political philosophy forced upon the ordinary understanding of the language of the Constitution makes for silly claims.

# posted by

Mista Whiskas : 6:05 PM

"certainly not in the original, pre-industrial revolution meaning of that word."

Actually, the widely accepted definition of the term around the Revolution was incredibly broad. Here's Sam Johnson's:

https://johnsonsdictionaryonline.com/commerce-noun/

Check out the examples!

# posted by

Mista Whiskas : 6:08 PM

Another example.

Major League Baseball is a corporation that runs a sports league. Their product is baseball games played between teams from different states. They schedule the Boston Red Sox to travel from Boston, MA to NYC, NY to play a game against the NY Yankees. Agents, marketers, sales reps, etc., from each team travel to each other's sites extensively in preparation for the game. Merchandise is shipped from each team's facilities to the NY arena, and reps from both teams meet in both locations frequently to work out how much of that will be delivered, where it will be displayed, how proceeds will be distributed, etc. Travel agents for the Red Sox make accomodations and the host team makes hosting accomodations. The Red Sox travel to NYC and play the game. The two teams have sent reps to work out agreements and logistics of filming the game and selling the rights and splitting the proceeds (film distributed across all states and more).

To any normal, sane human being this is all part of an interstate endeavor. To Bircher Bart only when the Red Sox cross the NY state lines is interstate commerce occurring.

This is how laughable his position is.

# posted by

Mista Whiskas : 6:17 PM

Sniffles, your position a laughably ridiculous. But great job proving that you’re also wrong that “it” is universally agreed upon.

# posted by

Bartbuster : 6:46 PM

Remember that Bircher Bart has argued here that the defining feature of the Constitution is a 'presumption of liberty*' which is nowhere found in the Constitution's text. Bircher Bart's constant accusations about those who ignore the 'law as written' is simply a confession.

*the same person who focuses on the presumption of 'liberty' is a huge fan of commemorations to the Confederacy, the single most important movement in our history denying the same. Go figure!

# posted by

Mista Whiskas : 6:55 PM

BD: "Congress does indeed have the power to make regular the interstate trade in raw materials and then the finished product, but nothing else in your hypo."

Mr. W: That's why the position is palpably ridiculous, it's obvious everyone working for the company is involved in the same venture.

What is your point? The Constitution grants Congress the power to make interstate COMMERCE regular, not manufacturing, ventures or multi-state endeavors.

BD: "certainly not in the original, pre-industrial revolution meaning of that word."

Mr. W: Actually, the widely accepted definition of the term around the Revolution was incredibly broad. Here's Sam Johnson's: "Cómmerce. n.s. [commercium, Latin. Intercourse; exchange of one thing for another; interchange of any thing; trade; traffick.

Do you read for content a single thing to which you link?

You just illustrated my point...again.

Commerce is trade in goods and services. No manufacturing, ventures or multi-state endeavors.

# posted by

Bart DePalma : 7:12 PM

1. trade in goods and services which involves manufacturing, ventures or multi-state endeavors is commerce.

2. Intercourse means almost any social mixing.

# posted by

Mista Whiskas : 7:26 PM

# posted by

Mista Whiskas : 7:27 PM

2. Intercourse means almost any social mixing.

Well, at least if it is with a member of the opposite sex.

# posted by

Joe : 7:39 PM

I withdraw my previous claim progressives arguing commerce means something more than trade in goods and services are acting out of ignorance.

# posted by

Bart DePalma : 7:50 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 9:12 AM

Mr, W: 2. Intercourse means almost any social mixing.

Commerce means almost any social mixing?

Sandy, the problem is not that words have no meaning, but rather some readers are either loons or liars.

Joe: Well, at least if it is with a member of the opposite sex.

Homophobe.

# posted by

Bart DePalma : 9:16 AM

"Commerce means almost any social mixing? "

Take it up with the dictionary of the day.

"Homophobe."

Bircher Bart's sense of humor is as poor as his intellectual and moral sense.

# posted by

Mista Whiskas : 9:51 AM

"arguing commerce means something more than trade in goods and services"

Commerce means trade in goods, but it doesn't just mean the act of transporting those goods. It's the entire process of the trade.

# posted by

Mista Whiskas : 9:53 AM

BD: arguing commerce means something more than trade in goods and services"

Mr. W: Commerce means trade in goods

Making progress.

but it doesn't just mean the act of transporting those goods, It's the entire process of the trade.

Correct. Trade in goods includes the agreement to exchange goods and money and then the act of exchange.

# posted by

Bart DePalma : 10:17 AM

No. Planning, manufacture, shipping, display, sale and delivery are all inextricable parts of commerce.

# posted by

Mista Whiskas : 12:21 PM

This comment has been removed by the author.

# posted by

Joe : 12:50 PM

Since we moved on to other things, I want to re-up this:

challenge us to explain why we actually require oaths of civic worthies

There is a religious aspect to it since an oath is traditionally a matter of swearing to God though there is also an affirm alternative. I was skimming a book promoting humanism, and non-belief in God or an afterlife still often has religious-like aspects or religious-like terms (like "belief"). And, what is "religion" anyway? See, e.g., U.S. v. Seeger & a reference to an "ultimate concern."

The oath/affirmation to me is a symbolic act, a ceremonial act, that adds a certain unclear strength to efforts to make sure the Constitution is applied seriously. It isn't magic. The "through the glass darkly" interpretation business that will imperfectly be addressed over time will all exist. The whole thing will also exist if there was no oaths/affirmations and being elected or confirmed to a position was deemed to require following the Constitution with some checks for violations.

Why have a marriage ceremony if you don't believe in God? Just get a marriage license. Why wear a wedding ring? etc. I think the ceremony and symbolic actions matter to some degree to humans. Surely only so much. But, we work on probabilities here.

The counter would be why not have them? Because they make us believe more than facts deserve? See, e.g., long discussions on how an "oath" is somehow a special interpretative device that seem tedious. But, I don't know how true that is. Anyway, we still will have something that will be cited as given some special importance & for that, that thing will be glorified somehow. So, e.g., some argue we make elections too important, not paying attention to other things too like you know impeachment etc.

# posted by

Joe : 12:54 PM

Joe:

Like honor, oaths are completely self-enforcing.

I take my military and attorney oaths very seriously, but that's me.

# posted by

Bart DePalma : 1:31 PM