Balkinization  

Wednesday, December 03, 2008

A couple of comments on Sen. Clinton's eligibility to be Secretary of State

Sandy Levinson

Laurence Tribe has, not surprisingly, written a marvelously incisive posting. I want to offer two brief comments of my own:

1) With regard to then-Harvard Law Professor's Breyer's letter to Sen. Byrd, I'm not sure what kind of "research" is necessary if one is really-and-truly a "textualist." Isn't the appeal of textualism, for better or worse, some version of a guy (or woman) at a bar saying, "Can't you read, stupid?" It is, of course, possible to say that a word that has a more-or-less clear meaning to us today (e.g. "nunnery," as in "get thee to a nunnery") was ambiguous at the time it was written (where "nunnery" was apparently English slang for whorehouse, given the official antipathy to Catholicism), but at that point one has moved from "textualism" to "originalism," with all of its problems in fixing meaning. The point of textualism, for those who take that approach seriously, is precisely that one doesn't have to do anything more than read the text. One certainly doesn't have to hire a lawyer to engage in time-consuming or expensive research. Compare, for example, Justice Black's "literalist" approach to the First Amendment, where I always imagined him taking out his copy of the Constitution, pointing to the Amendment, and asking "What part of 'no law' do you not understand?" Needless to say, one cannot possibly understand the "constitutional law" of the First Amendment by reference to such a "naively textual" approach, but that is another matter.

2) I personally think the truly winning argument is Prof. Tribe's posting is the last one, which focuses on the fact that Hillary Clinton has had nothing whatsoever to do with increasing her salary, since it's the result of a presidential decision generally implementing--i.e., not selecting out the secretary of state for a special pay raise to take account of all the hazardous travel she must do--a piece of legislation passed before she arrived in the Senate. Imagine that Congress passes a law in 2009 law saying that "if X doesn't occur by 2014," then the President in 2015 shall establish a new office that will devote itself to achieving X. The president in 2015 deterines that X has indeed not occurred and decides to appoint a senator elected in 2010. Would that senator be disqualified from accepting the appointment. I think not, because the determinative legislation was passed before (s)he arrived on the scene. I think the same is true with regard to Sen. Clinton. (Perhaps one wants to distinguish the hypothetical on the grounds that we're talking about a specific office rather than "general" implementation of the cost-of-living payraise, though I don't find the distinction important.) I also think, incidentally, that it is legitimate to ask if the increase is larger than the inflation rate and to say that it doesn't count as a "constitutional increase" if the answer is no.

But isn't it relevant that it would count as just another constitutional stupidity if the Constitution foreclosed her nomination, since no serious argument can be made that preventing her nomination would relate to the purposes (preventing self-dealing or corruption) of the initial clause? As for Dick Cheney, I participated in the lawsuit suggesting that a Texas elector couldn't vote for both Bush and Cheney, since both were "inhabitants" of Texas; the district court held, altogether unsurprisingly, that he had successfully moved to Wyoming. More to the point, however much fun it was to participate in the suit (Harriet Meirs was the lawyer on the other side, the only constitutional case she ever worked on, apparently!), no serious person (including myself) could argue that the constitutional bar on electors voting for both president and vice presidential candidates from their own state makes the slightest bit of sense today, even if one stipulates that it made sense in 1803, when it was retained in the 12th amendment. So it was perfectly acceptable--i.e., unlike the case with Bush v. Gore, I wasn't at all angry or even upset--for the district court to allow Cheney to "workaround" the no-longer-sensible provision by a simple self-serving renunciation of his Texas residence.


Comments:

I must admit I fail to perceive the sublime wonderfulness of this.

How is this not pilpul?
 

"pilpul" (plain meaning)," of course, is only one of the many legitimate ways of interpreting Talmudic texts. Surely one of the most recurrent responses to studying Talmudic interpretations is the amazement at what is done with apparently "clear" texts.
 

A link to Tribe's post would be helpful, and in keeping with the spirit of the interwebs. (On the other hand, I've already gotten more than I've paid for.)
 

Whoops -- I hadn't seen it down there.
 

California has codified a number of common law maxims, one of which seems to express the basic argument pretty well: "When the reason for the rule ceases, so should the rule itself."
 

"pilpul" (plain meaning)

I intended the pejorative sense of pilpul: "empty, nonsensical arguments over minute points of the Talmud that have no relationship at all to the world"
 

what about the plain meaning rule, that would bar Clinton from taking the position, except that in this case, application of the emoluments clause renders an absurd result? Even Scalia believes in the absurd result corollary to the plain meaning rule. Since she did not have any control over the raise, wouldn't it be absurd to prevent her from taking the position?

worse yet, if we were to decide she is barred from taking the position, could this then become a tactical tool used by presidents to prevent sitting congress members from taking positions in a new administration? Maybe not that effective of a tool, but certainly a-sand-in-your-eye, take-my-ball-and-go-home type of tool.
 

1) With regard to then-Harvard Law Professor's Breyer's letter to Sen. Byrd, I'm not sure what kind of "research" is necessary if one is really-and-truly a "textualist." Isn't the appeal of textualism, for better or worse, is some version of a guy (or woman) at a bar saying, "Can't you read, stupid?" It is, of course, possible to say that a word that has a more-or-less clear meaning to us today (e.g. "nunnery," as in "get thee to a nunnery") was ambiguous at the time it was written (where "nunnery" was apparently English slang for whorehouse, given the official antipathy to Catholicism), but at that point one has moved from "textualism" to "originalism," with all of its problems in fixing meaning. The the point of textualism, for those who take that approach seriously, is precisely that one doesn't have to do anything more than read the text. One certainly doesn't have to hire a lawyer to engage in time-consuming or expensive research.

Interpreting the Constitution should not be fundamentally different from interpreting any other contract to determine the original intent of the parties to the agreement.

As with a contract, the text may contain terms of art that may be archaic or not commonly known which would require research to determine the original meaning of the term.

This fact of linguistic life does not undermine the principle that an unambiguous contract is restricted to the terms set forth in the text of the agreement.
 

Mark Field said...

California has codified a number of common law maxims, one of which seems to express the basic argument pretty well: "When the reason for the rule ceases, so should the rule itself."

The Constitution is not common law and may only be lawfully amended through amendment.
 

Bart,

I know you crow about your Consitutional Law scores, but do you really conflate the "Social Contract" with Contract Law?

Meanwhile, your sentence, "This fact of linguistic life does not undermine the principle that an unambiguous contract is restricted to the terms set forth in the text of the agreement" has no bearing on avoiding the ineligibility by rolling back the raise. If you are aiming it at some other argument then you might want to be more clear.

I see you weren't able to resist Mark Field's bait either, and have replied to an assertion no one made. The maxim remains, however, in the history of our legal system (as evidenced by Mark's comment) and can be expected to be brought to bear on the question of construing "shall have been" to reach a common sense conclusion that if the raise is rolled back there is no ineligibility.
 

Robert:

Yes, I view the Constitution as a contract between the People and their Government setting forth the powers of the latter and reserving the rights of the former.

If one views the Constitution in this manner and applies basic principles of contractual interpretation, you clear away much of the academic and judicial underbrush that infests constitutional interpretation.

Of course, you also undermine the legitimacy of many of the judicial "common law" amendments to the Constitution.
 

Interpreting the Constitution should not be fundamentally different from interpreting any other contract to determine the original intent of the parties to the agreement.

No problem. Of course, contracts aren't interpreted according to Bart DePalma's principles either. See Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging.
 

Sandy, regarding your point 2), consider my comment on Prof. Tribe's post:

"What if instead of Hillary Clinton President Elect Obama were to designate John Kerry to serve as his Secretary of State (or to any other Cabinet position?)? Would the fact that he was serving in the Senate at the time of the 1990s vote suggest that his appointment might be unconstitutional? If so, might that fit Charles Dickins' 'The law is a ass'? Whether the Constitution is 'Lost,' 'Invisible,' or just plain hiding, how does 'originalism' resolve this? As for lack of standing to challenge, should we all be required to sit down?"
# posted by Blogger Shag from Brookline : 7:40 AM
 

Dilan:

Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging is the contractual interpretation version of original meaning constitutional interpretation used in Heller.

Pacific Gas does not reverse the general principle of a contract being limited to the provisions within the four corners of document. Rather, the judge's decision about what terms of a provision are and are not ambiguous is not the final word.
 

Mr. DePalma,


Yes, I view the Constitution as a contract between the People and their Government setting forth the powers of the latter and reserving the rights of the former.

If one views the Constitution in this manner and applies basic principles of contractual interpretation, you clear away much of the academic and judicial underbrush that infests constitutional interpretation.

Of course, you also undermine the legitimacy of many of the judicial "common law" amendments to the Constitution.


You do realize the rules of contract construction come from the common law, right?

This is one of those things I never understood about conservatives, federalist society people, etc. I had a comparative law class where an officer of the school chapter of the Federalist Society asked the prof to remind the 1L's that the legislature makes laws, not the judges. Apparently, she was unaware the US is a common law nation, and Judges are supposed to make law. Otherwise, we'd have no common law to work with, and we would have no contract interpretation rules to work with. If one does not like judges legislating, one should move to France, a civil law society, where the civil code basically trumps any concept of judge made law. Used to be, civil law societies distrusted judges so much, they didn't even permit the concepts of precedent or stare decisis. Conservatives would apparently be much happier there.

Liberals, and reality based people in general, seem hesitant to defend this very simple principle. Obviously, judges can't go and do anything, since they are constitutional actors, and are supposed to be acting in good faith and fidelity to the Constitution, but I would humbly argue judges who refuse to make law on the principle that it is not their role, are actually betraying the duties of their offices, which require adherence to our common law tradition.

For the most part, the Constitution is treated like a contract (although a special one), and the Constitutional jurisprudence we have is really a set of contractual construction rules generated by Constitutional common law.
 

nerpzillicus said...

You do realize the rules of contract construction come from the common law, right?

So? It is irrelevant from whence the rules were derived, only that under the rules of contract construction the Courts cannot rewrite the contracts to conform to their own policy preferences as they do with the common law.

This is one of those things I never understood about conservatives, federalist society people, etc. I had a comparative law class where an officer of the school chapter of the Federalist Society asked the prof to remind the 1L's that the legislature makes laws, not the judges. Apparently, she was unaware the US is a common law nation, and Judges are supposed to make law.

Presuming that this person was not referring to the constitution or statute, she should have done the Federalists' recommended reading prior to law school which includes two excellent books on the Anglo-American common law system.

If one does not like judges legislating, one should move to France, a civil law society, where the civil code basically trumps any concept of judge made law...

I would humbly argue judges who refuse to make law on the principle that it is not their role, are actually betraying the duties of their offices, which require adherence to our common law tradition.


You should be making this argument humbly because it is completely in error.

Under our system, the hierarchy of the law is constitution, statute and last and definitely least the common law. Constitution and statute trump common law and the judiciary is not empowered to change the Constitution or statute as they may change the common law. To the extent that legislation means enacting statute, courts may not legislate.
 

This comment has been removed by the author.
 

Yes, I view the Constitution as a contract between the People and their Government setting forth the powers of the latter and reserving the rights of the former.

Uhhh. who are the agreeing parties, what's the agreement, and what is the consideration? How would you enforce the contract in terms of breach? Who would do so, and would it be in law or in equity?

I'd point out that you have assiduously supported the rights of the gummint to refuse to be subject to enforcement for "non-performance" in being "sovereign".

That's hardly a contract. That's more like going to "McBart's", getting a sh*t sandwich, and having as your only recourse not to ever go there again.

So can we please dispense with this notion of the legal accoutrements of contract law applying unmodified here? Thanks in advance.

Cheers,
 

@Bart,

"If one views the Constitution in this manner and applies basic principles of contractual interpretation..."

This is one of the dumbest things I've seen you write. Seriously. Painfully dumb. "The Social Contract" does not equal "Contract Law". Do you really not know the difference?
 

I sure wish the Constitution was written like a contract, with all the terms defined and none of that vague, open-ended language that has no clear meaning. But it's not. And it probably would never have been ratified if it was, much like the gargantuan EU constitution that was rejected in 2005.

The evidence is clear that the Founders left many provisions of the Constitution unclear because it needed to win broad acceptance in the ratification process. Thus we have things like the completely undefined promise of the Ninth Amendment.

If we understand that many issues were intentionally left unresolved, with the expectation that future generations would find a way to sort them out, then we can do a decent job of constitutional interpretation. But some people want to pretend that it's just like a contract and that it's impermissible to bring in any interpretation that's outside the four corners of the document. Let them cling to that belief, I guess.
 

Mr. DePalma,



You should be making this argument humbly because it is completely in error.

Under our system, the hierarchy of the law is constitution, statute and last and definitely least the common law. Constitution and statute trump common law and the judiciary is not empowered to change the Constitution or statute as they may change the common law. To the extent that legislation means enacting statute, courts may not legislate.


I never argued a court could rewrite statute or the Constitution. (and really, “Courts can't pass statutes”? You read and write on this blog sufficiently frequently that I believe you have basic reading comprehension skills. Where did I claim courts pass statutes? Seriously.) This is you creating a false strawman. (is that redundant?). I argued that judges can, should, and do make law. Yes, the common law is “the lowest rung” in the sense that the legislature is free at any time to pass black letter law that overrules or modifies the common law (so long as that black letter law does not overstep into the ability of the judicial department to exercise its constitutional powers, or is in violation of the Constitution). But that does not defeat the fact that Anglo-American Courts are duty bound to make law. Since you have basically conceded Courts can and do develop the common law, we should analyze what the common law is. Most common law today is either the Blackstonian really old stuff, or creating rules of construction and application from interpretation of statute. I humbly argue that Constitutional Jurisprudence, such as you can't yell “fire” in a theater, is the courts rightfully exercising their traditional power to create common law from application of the Constitution to cases and controversies arising under it. Whether a particular decision actually is correct is far different from whether Courts have this power.

So, when you said “common law” amendments to the Constitution were not permitted, I humbly argued that this is actually a proper role for the Courts. A constitution has to be interpreted and applied to the facts of the disputes that come before the court. Courts traditionally build case law out of those disputes. The Framers, who had a large number of lawyers among them, were aware of this traditional habit of the courts. So, I would say “common law” amendments are not only not wrong or improper, but were expected and intended by the Framers as a natural consequence of the common law judicial function. Since the people could always amend the Constitution, just like in the traditional common law situation where the legislature can trump the common law, so can the people trump the Court. The story of the 11th amendment nicely illustrates this dynamic.

Your dispute is actually with particular cases. However, you have a habit of taking your complaints about individual cases, and blowing them up into incorrect assertions of constitutional principle. People have used the phrase “courts shouldn't legislate form the bench” so often that there are people out there who actually believe the American System is compartmentalized into black-and-white, no shade of gray powers - that our system does not (or should not) involve judges making law.

Assuming arguendo that the Constitution should be interpreted like a contract, I submit it basically already is interpreted that way. Common law is always present in contracts. Common law tells us how to interpret contracts. Common law tells us how similar clauses in contracts should be read. If a contract has a clause, and a court interprets it one way, the next court interpreting it will use that decision in deciding the next case. The common law builds in this manner, and when the terms of a contract don't change very often, multiple cases applying the same provision to multiple sets of facts create a common law method of interpretation. My point was that your own contention that the Constitution should be read like a contract is in irreconcilable conflict with your other contention that so doing would undermine “common law” amendments to the Constitution made by the Court. The opposite actually would occur, and the opposite is actually how the system was intended to work.

p.s. Humility is a virtue.
 

Levinson: "The point of textualism, for those who take that approach seriously, is precisely that one doesn't have to do anything more than read the text."

Has any actual textualist ever said anything like this? At any rate, the point of my textualism is that the text is what "this Constitution" refers to in Article VI. The textual Constitution is, alas, the only Constitution we've got. Among the actual Constitution's flaws might well be lack of easy interpretability.
 

If the increase in January 2008 had been a statutory increase (i.e., an increase passed by Congress), but Hillary Clinton had voted against it, would then Hillary Clinton be disqualified?

If the sole purpose of the Emoluments Clause were to prevent self-dealing, Senators and Representatives voting against the increase should not be disqualified.
 

nerpzillicus said...

So, when you said “common law” amendments to the Constitution were not permitted, I humbly argued that this is actually a proper role for the Courts. A constitution has to be interpreted and applied to the facts of the disputes that come before the court. Courts traditionally build case law out of those disputes. The Framers, who had a large number of lawyers among them, were aware of this traditional habit of the courts. So, I would say “common law” amendments are not only not wrong or improper, but were expected and intended by the Framers as a natural consequence of the common law judicial function. Since the people could always amend the Constitution, just like in the traditional common law situation where the legislature can trump the common law, so can the people trump the Court.

The English bill of rights was essentially common law. I would suggest that the Founders were well aware of the shortcomings of common law in protecting their rights as Englishmen against the Crown and and intentionally chose a sturdier written bulwark not subject to the whims of the courts.
 

"no serious person (including myself) could argue that the constitutional bar on electors voting for both president and vice presidential candidates from their own state makes the slightest bit of sense today"

It seems sensible to the extent that, especially if we are talking a big state like Texas, that it will help prevent both coming from the same state.

This will effect the mind-set etc. of the person. By much? Perhaps not. Still, a "slight" bit. But, getting someone from a neighboring state wasn't that BIG of a deal even back then.

The common law constitution discussion referenced by one reply seems very important to me as well. As I noted when this first came out, I think the COLA issue alone is important. Is it really an "increase" at all, really?

One of the conservative Four Horseman, btw, spoke of the spirit of the Constitution. (e.g., Olmstead v. U.S., dissenting opinion) I think we can go that route w/o just saying the provision is obsolete thus an "ass."

Being too literal here, especially in the face of at least a century of experience, is ill advised.
 

"But isn't it relevant that it would count as just another constitutional stupidity if the Constitution foreclosed her nomination"

No. People will always regard as stupid laws which run contrary to their own interests. It thus follows that if the Constitution is not going to be enforced when the ruling class finds it to be stupid, it's essentially not going to be enforced AT ALL. Or at any rate, only when the political class finds it convenient.

And that's not a constitution. It's a book of suggestions.

What I'm saying is that we can't have a rule that 'stupid' parts of the Constitution will be reinterpreted to mean something more reasonable, because we can't count on good faith decisions as to when something is stupid. In fact, we can count on bad faith.
 

Assuming arguendo that the Constitution should be interpreted like a contract, I submit it basically already is interpreted that way.

What I've always found interesting about those who insist on both textualism/originalism and that the Constitution is a contract, is that the Constitution itself says it's a law ("the Supreme Law of the land").

Wouldn't make any difference in terms of its construction, since the principles are essentially the same for both and the common law jurisprudence you've described applies to both.
 

It's not really worth arguing, but Bart doesn't no diddly about contracts law.

Really, his positions on contract interpretation haven't had any legal support since Holmes and the Realists shot down Langdell.
 

Dilan:

It's not really worth arguing,...

Well, your second subsequent word to that is "Bart".

As I've pointed out above (and which Mark Field seems to echo) is that the Constitution is not a "contract" (at least from a legal perspective), and thus the entire body of law specific to contracts is simply inapplicable, regardless of any shortcoming "Bart" may have as to his knowledge of contract law (as I also alluded to in my point above).

Certain common canons of interpretation may be found in contract interpretation and statutory interpretation (mainly because they are prudential canons aimed at clarification and resolution of potentially ambiguous language and avoidance of problems in both instances), but we should rather look to the standard rules of statutory interpretation in looking at the "supreme statutes" of the land.

Cheers,
 

FWIW, one rule of statutory interpretation that doesn't carry to contract interpretation is the canon that no provision should be interpreted to be a nullity. Contracts have to be taken as written (or agreed), and many are poorly written, or over-specified/over-written so that it is quite possible they may contain clauses that must be interpreted to be nullities, or at least refer to impossibilities. The interpreter of contract law is under no obligation to cajole the meaning of nonsense clauses so as to make some sense; they can just forge on with the remainder of the clauses that do apply.

Cheers,
 

Mark -

An excellent point. Really, I think the best way to look at the Constitution is as a “super-statute,” promulgated by direct as opposed to representative democracy. Nevertheless, as you said, this doesn't make a real difference as far as construction or the common law that springs from it.

Mr. DePalma,


The English bill of rights was essentially common law. I would suggest that the Founders were well aware of the shortcomings of common law in protecting their rights as Englishmen against the Crown and and intentionally chose a sturdier written bulwark not subject to the whims of the courts.


I would suggest this statement couldn't be more wrong.

1)the English Bill of Rights was an Act of parliament in 1689, which would be subject to the same limitations of court interpretation and construction. The Founders didn't like the idea that the legislature could make its own fundamental rules, such as avoiding elections, or the King dissolving parliament for excessive amounts of time. Quite the opposite of what you say, the constraining feature of the written constitution was directed against the political branches, not the courts.

2)If this was the case, and the Founders did not like the idea of the courts protecting rights at common law, why did the original Constitution not have a bill of rights? How did the Framers think fundamental rights would be enforced and protected from infringements by the Government? Why are the Ninth and Tenth Amendments so open ended? If one believes in natural rights theory, how could the constitution be confined to the text and four corners of the document when fundamental rights are not listed in the document? Why is the Bill of Rights constructed as negative liberties restricting the Congress and Executive? As Mark points out, the text itself of the Constitution betrays a pure textualist, four corners method. But not only this, but the very open-ended structure of the Constitution begs for interpretation by the Courts.

3)The Founders feared the whims of the executive, not the Courts. Not one of the complaints in the Declaration of independence is directed at the Courts. However, they include these gems:
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

 

nerpzillicus said...

BD: The English bill of rights was essentially common law. I would suggest that the Founders were well aware of the shortcomings of common law in protecting their rights as Englishmen against the Crown and and intentionally chose a sturdier written bulwark not subject to the whims of the courts.

1) the English Bill of Rights was an Act of parliament in 1689, which would be subject to the same limitations of court interpretation and construction.


The British courts have added substantially to the rights on the original legislation, which is why I used the word "essentially."

Quite the opposite of what you say, the constraining feature of the written constitution was directed against the political branches, not the courts.

The Bill of Rights amends the entire Constitution, not just Articles I and II.

2) If this was the case, and the Founders did not like the idea of the courts protecting rights at common law, why did the original Constitution not have a bill of rights?

Because the Federalists who drafted it trusted te new republican government to recognize the voters' natural rights. The Anti-Federalists more presciently did not trust any government with their rights and demanded a written bill of rights. Given the efforts of the government including the Courts over the years to ignore even the enumerated rights, the Anti Federalists were right to insist on amendments and thankfully prevailed. The alternative would have been the Courts deciding what rights we do and do not have.

How did the Framers think fundamental rights would be enforced and protected from infringements by the Government?

This was new territory. The drafters were hoping that federalism and a myriad of checks and balances would ensure the Government kept to its part of the agreement in the Constitution. As a further check on a potential tyranny, these revolutionaries depended upon a well armed citizenry.

Why are the Ninth and Tenth Amendments so open ended?

The Tenth Amendment simply reinforced that the federal government was limited to the powers expressly enumerated in the Constitution.

The Ninth Amendment was a catchall provision for all the natural rights which were not listed in the first eight amendments. It was not a limit on the enumerated rights.

Why is the Bill of Rights constructed as negative liberties restricting the Congress and Executive?

Because the founders considered the judiciary to be the weakest branch without the power to legislate. They would have been horrified at the New Deal and Warren Courts.

As Mark points out, the text itself of the Constitution betrays a pure textualist, four corners method. But not only this, but the very open-ended structure of the Constitution begs for interpretation by the Courts.

It is not a betrayal of textualism to hold that broad provisions such as due process were an invitation to the Courts to set judicial procedure. However, even here there are textual limits which should prohibit the oxymoron of "substantive due process."

3)The Founders feared the whims of the executive, not the Courts.

That is true. They experienced the tyranny of the crown and had no concept of an imperial court such as we have today assuming legislative and even executive powers. The drafters of the Constitution, perhaps foolishly, anticipated that the Courts would be bound by that Constitution.
 

As I've pointed out above (and which Mark Field seems to echo) is that the Constitution is not a "contract" (at least from a legal perspective)

I don't have any real problem with treating the Constitution as a contract, because as I said, the canons of construction are basically the same. The bigger problem is that some people (e.g., slaveholders) try to mischaracterize the nature and terms of the contract. There's danger when people who are ignorant or self-interested come along to invent supposed principles of contract law and apply them to the Constitution. Then again, they do the same to statutes...

Ultimately, Constitutions are sui generis -- more than statutes and not really contracts. Hamilton referred to them (correctly in my view) as the "organic" [meaning "organizing"] law of a nation. That's right, I think.

If this was the case, and the Founders did not like the idea of the courts protecting rights at common law...

Both Federalists and anti-Feds expected the courts to protect rights. Hamilton famously said so in Federalist 78: “the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws.”

Jefferson agreed. Writing to Madison on March 15, 1789, he said, “In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent, and kept strictly to their own department, merits great confidence for their learning and integrity.”

Perhaps most interesting is the legal argument made by John Taylor of Caroline, who was as anti-Fed as they get. He argued to the Circuit Court in the case which became Ware v. Hylton, that “legislative majorities are not to be … relied upon…. Hence the Constitution of America was designed to preserve certain rights against the aggression of such majorities, and hence too it provided a mode of enforcing that Constitution…. It interposes the judiciary between the government and the individual.”
 

Mr. DePalma,

nerpzillicus said...

BD: The English bill of rights was essentially common law. I would suggest that the Founders were well aware of the shortcomings of common law in protecting their rights as Englishmen against the Crown and and intentionally chose a sturdier written bulwark not subject to the whims of the courts.

1) the English Bill of Rights was an Act of parliament in 1689, which would be subject to the same limitations of court interpretation and construction.

The British courts have added substantially to the rights on the original legislation, which is why I used the word "essentially."


They added to it between 1689 and 1787? The Framers were concerned with Courts adding recognized rights for Englishmen against the Crown? Cites?



Quite the opposite of what you say, the constraining feature of the written constitution was directed against the political branches, not the courts.

The Bill of Rights amends the entire Constitution, not just Articles I and II.


But the Constitution did not originally have a bill of rights. If the purpose of the Constitution was to create a “sturdier written bulwark not subject to the whims of the courts,” why would the Framers have originally left out this crucial piece, and focus solely on the limited powers of the Federal Government and its structure?


2) If this was the case, and the Founders did not like the idea of the courts protecting rights at common law, why did the original Constitution not have a bill of rights?

Because the Federalists who drafted it trusted te new republican government to recognize the voters' natural rights. The Anti-Federalists more presciently did not trust any government with their rights and demanded a written bill of rights. Given the efforts of the government including the Courts over the years to ignore even the enumerated rights, the Anti Federalists were right to insist on amendments and thankfully prevailed. The alternative would have been the Courts deciding what rights we do and do not have.

How did the Framers think fundamental rights would be enforced and protected from infringements by the Government?

This was new territory. The drafters were hoping that federalism and a myriad of checks and balances would ensure the Government kept to its part of the agreement in the Constitution. As a further check on a potential tyranny, these revolutionaries depended upon a well armed citizenry.

True to a degree, but misses the point. If your argument is correct, that the written Constitution was drafted to prevent individual rights from being subject to the whims of the Courts, then why did they skip effectuating this essential purpose in their original draft? Can you not see the logical inconsistency of your claim? All you say is correct (except the “alternative” stuff, and I'll need a cite for where the Courts ignored enumerated rights from 1689 to 1787-91), but if the Framers feared the Courts, they set forth precious few rules for them, yet tons for the regular election of representatives, limits on the power of Congress to pass certain laws (ex post facto, bills of attainder, suspension of habeas corpus (retaining powers for the courts)), etc.. As you say, the Framers felt the republican government would be responsive to the electorate because, unlike the British model, elections had to be held regularly, and Congress could not amend or adjust key operating rules that would diminish its responsiveness to the people. This, however, does not support your thesis that the written Constitution was drafted to prevent excesses of the courts. Further, the bill of rights, while certainly binding on the entire federal government, cannot be said to be directed at the courts (except in the sense that they mandate the Court's responsibility to prevent the executive from prosecuting criminal cases and searches in improper manners and enforcing due process). The only two that are restrictive on the Court as an independent department are the seventh and eighth - the eighth quite directly dealing with issues of punishment and detention (not the prevention of courts from articulating individual rights not contained in the Constitution), and the seventh's preservation of trial by jury, the inviolability of the fact-finding responsibilities of the jury, and most importantly, a recognition that the Federal Government is a common law institution and the courts are mandated to follow rules of the common law. The seventh Amendment is basically QED on half of my point.


Why are the Ninth and Tenth Amendments so open ended?

The Tenth Amendment simply reinforced that the federal government was limited to the powers expressly enumerated in the Constitution.

The Ninth Amendment was a catchall provision for all the natural rights which were not listed in the first eight amendments. It was not a limit on the enumerated rights.

I agree completely. However, this again defeats your point. If the Framers were concerned with the Courts eliminating rights, why would they leave out a whole bunch, and leave those open to judicial elimination through interpretative fiat by the tyrannical courts? Certainly you can see your assertion simply doesn't make sense.


Why is the Bill of Rights constructed as negative liberties restricting the Congress and Executive?

Because the founders considered the judiciary to be the weakest branch without the power to legislate. They would have been horrified at the New Deal and Warren Courts.

Even if I were to assume the Framers would have been horrified by those events, you have basically conceded that the Framers were not concerned with the courts' interpretation of individual rights under the Constitution through the common law. At this point, you are basically admitting that the Constitution as written and understood by the Framers granted the Court this power, but they may not agree with where its interpretations have taken it. That is a fine debate to have, but your original point has then been refuted – the Framers and the Amenders were concerned with the political branches infringing on rights, not the courts. Which is the other half of my point.

As Mark points out, the text itself of the Constitution betrays a pure textualist, four corners method. But not only this, but the very open-ended structure of the Constitution begs for interpretation by the Courts.

It is not a betrayal of textualism to hold that broad provisions such as due process were an invitation to the Courts to set judicial procedure. However, even here there are textual limits which should prohibit the oxymoron of "substantive due process."

Again, your argument is no longer about the power of the courts to apply common law interpretive methods to the Constitution, but about the appropriateness of some of their decisions. Once again, specific cases are always great debates, but your fundamental contention re the power of the courts to interpret the Constitution, and their use of the common law in interpreting it is now eviscerated.

3)The Founders feared the whims of the executive, not the Courts.

That is true. They experienced the tyranny of the crown and had no concept of an imperial court such as we have today assuming legislative and even executive powers. The drafters of the Constitution, perhaps foolishly, anticipated that the Courts would be bound by that Constitution.

So we are in agreement. The Framers did not intend (whether they should have or not) to use the written Constitution as a limitation on the courts traditional use of the common law as a method to interpret its application. The Framers did not implement the Constitution or the Bill of Rights because of a fear of judicial tyranny, but from fear of Congressional and Presidential tyranny. Your original contention was incorrect.

And Mark Field's latest says it better than i can (certainly shorter)
 

Re: Nerpzillicus v. "Bart" debate

It's a knockout for Nerpzillicus, who raises his gloves totally untouched, but I doubt that "Bart" will admit it (see my comment on Dilan's last post). "Bart" should be ashamed of this particularly dismal posting of his, but like all RWAs, he will not admit such.

I'd point out that if this latest tripe from "Bart" is an example of the way the Federalist Society twists history, facts, logic, and common sense to conform to their ideological aims, then their reading list (that he propounded in an older post's comments) should be considered with a very jaundiced eye, if not avoided entirely (except for vanilla recommendations common to everyone's list [e.g., actual Blackstone, not Bork]).

Cheers,
 

The Framers did not intend (whether they should have or not) to use the written Constitution as a limitation on the courts traditional use of the common law as a method to interpret its application.

You can say this more affirmatively: the Founders expected that courts would use common law methods for interpreting the Constitution. It's hard to see what other expectation the Founders could have had. All of them who were lawyers (and that's most) were common law lawyers. They were trained in the habits of mind common to the British tradition.

If there were any doubt that this was the original expectation, Jefferson Powell demonstrated it convincingly in his article "The Original Understanding of Original Intent". I highly recommend it.
 

Mark,

You can say this more affirmatively: the Founders expected that courts would use common law methods for interpreting the Constitution. It's hard to see what other expectation the Founders could have had. All of them who were lawyers (and that's most) were common law lawyers. They were trained in the habits of mind common to the British tradition.

Agreed completely. I guess its just the "conservative" in me that unnecessarily restrains my writing sometimes.
 

As always, any sufficiently long discussion of constitutional interpretation ends up sounding like creepy ancestor worship in the end. The Founders, in their wildest dreams, could not have imagined the world of the New Deal. So we have no way of knowing whether they would have been "horrified" by the decision of the New Deal Court to rubberstamp the political branches, nor is it clear why we should even care.

The Founders, by and large, were quite humble about their faculties and their ability to predict the future. To the extent they even dared to imagine that they were writing a document which might govern the Nation's affairs for centuries hence, they knew quite well that there would be countless unforeseen developments that future generations would have to address. To the extent certain people choose to obsess over the intent of the Founders to the exclusion of all else, there is no indication that their intent was for the Nation to be ruled by their dead hand. In fact, just the opposite.
 

Mark Field:

You can say this more affirmatively: the Founders expected that courts would use common law methods for interpreting the Constitution. It's hard to see what other expectation the Founders could have had. All of them who were lawyers (and that's most) were common law lawyers. They were trained in the habits of mind common to the early British tradition.

Not to mention the early republic was "planted
thick with [...] man's laws" (to use Robert Bolt's phrase) at the moment of inception. There was hardly a rush to enact a statutory state (as would be necessary were "Bart"'s thesis true). The common law served the republic well back then (as it does even now), and this by the lawyers "Bart" claims thought so dimly of such law?!?!? To maintain such in the face of history and reality is "historical revisionism" of the worst kind.

In reality, "Bart" hates common law because he hates (certain) interpretations (and has the typical RWA propensity for a fondness for binary thinking, in part because it saves him the effort of having to puzzle out any issues). In a world of black-and-white "right and wrong", we can't be bothered with fallible human reasoning ... we need it from on high (as I alluded to in my Bolt quote above).

Cheers,
 

Steve M:

As always, any sufficiently long discussion of constitutional interpretation ends up sounding like creepy ancestor worship in the end. The Founders, in their wildest dreams, could not have imagined the world of the New Deal....

Perhaps. Perhaps not. But not relevant to the main thread of the discussion here. The question was how they thought things should run back then (and more to the point, how things actually did run back then). See Nerpzillicus's penultimate comment above. If they intended for there to be interpretation back then, and not some "strict letter of the law"/"nothing outside the box", then original intent can hardly justify their cribbed readings of judicial power that the RW loves to use (inaccurately and/or selectively) as a cudgel against their disputants alongside the buggywhip of the "Socialist!" epithet.

Cheers,
 

The Founders, by and large, were quite humble about their faculties and their ability to predict the future. To the extent they even dared to imagine that they were writing a document which might govern the Nation's affairs for centuries hence, they knew quite well that there would be countless unforeseen developments that future generations would have to address. To the extent certain people choose to obsess over the intent of the Founders to the exclusion of all else, there is no indication that their intent was for the Nation to be ruled by their dead hand. In fact, just the opposite.

Agreed. And this was exactly Marshall's point in McCulloch v. Maryland.
 

By the way, I don't think Bart's totally wrong about the applicability of contract interpretation principles to the Constitution. Not because the Constitution is a contract-- it may be, in some sense, a social contract, but it isn't an actual one with parties and consideration and the like.

But nonetheless, most canons of statutory construction are quite similar to contractual canons of construction, and at least here in California, lawyers can often cite to statutory interpretation cases when interpreting contracts and vice-versa. So I really don't have a big problem using contractual canons of construction, where appropriate, to interpret the Constitution.

Where Bart goes wrong is in pretending / assuming that there is this mythical plain meaning / original understanding rule that trumps all other considerations in contract law. That might have been the case years ago (though the realists pretty well demolished even that claim in the early 20th Century), but it definitely does not describe modern contract law where all sorts of evidence extrinsic to the contract can come in and all sorts of arguments can be made about what the parties would have intended if they had confronted an issue, the underlying purposes and objects of the contract, industry custom and usages of trade, and what would make sense for the parties in a particular situation. In other words, Bart's version of the rules of interpretation isn't even a good (or accepted) way of interpreting contracts.

None of this is to say that plain meaning doesn't count, in both contracts and constitutional law. It does. But in both instances, we have a bunch of doctrines and principles which allow us to depart from literal meaning when the circumstances require it.
 

Dilan:

By the way, I don't think Bart's totally wrong about the applicability of contract interpretation principles to the Constitution.

The problem is that he selectively grabs those elements that he thinks (wrongly) support his preconceived ideas about Constitutional interpretation (which in turn is suspected of being a fair bit more "results-oriented" than he will ever admit to).

As I said before -- and I think you're saying as well, Dilan -- the fact that contract interpretation and constitutional interpretation share many of the same features is not that contractual interpretation is a "supreme" form of law (much as "Bart" might wish to argue such for rhetorical ends), to which other forms of law must pay obeisance and bow donw, but rather that the same pragmatic maxims and goals apply to both.

That said, "Bart"'s reliance on contract law -- for the primogeniture of all other law that is good and just -- has the unfortunate defect (at least for his 'argument') that it was itself birthed in the common law, which is to say judge-made law. Does he simply not know this, or does he simply not reason through the inferences from his 'argument'? Curious minds want to know ... well, maybe not so much.

Cheers,
 

Dilan: "Where Bart goes wrong..."

Far too charitable. It might be acceptable for a non-lawyer to fail to distinguish between the metaphor of "The Social Contract" vis a vis our Constitution and the substance of Contract Law, but it is really unforgivable in anyone who passed the bar and holds himself out as a credible participant in discussions of Constitutional law. From someone who purports to be what Bart purports to be it's just plain dumb. Painfully. But it's also why he and his type avoid simple declarative statements, preferring instead to argue by insinuation. It takes a fair amount of work to deconstruct insinuation, and so folks who operate that way get busted for their nonsense less often, as with his asinine insinuation that the judiciary acts extra-Constitutionally. But we do come to expect such.
 

Steve M,


As always, any sufficiently long discussion of constitutional interpretation ends up sounding like creepy ancestor worship in the end. The Founders, in their wildest dreams, could not have imagined the world of the New Deal. So we have no way of knowing whether they would have been "horrified" by the decision of the New Deal Court to rubberstamp the political branches, nor is it clear why we should even care.

The Founders, by and large, were quite humble about their faculties and their ability to predict the future. To the extent they even dared to imagine that they were writing a document which might govern the Nation's affairs for centuries hence, they knew quite well that there would be countless unforeseen developments that future generations would have to address. To the extent certain people choose to obsess over the intent of the Founders to the exclusion of all else, there is no indication that their intent was for the Nation to be ruled by their dead hand. In fact, just the opposite.


I agree with you totally, and do not care whether they would be horrified of the new deal. You seem to be more of a living constitutionalist than some kind of originalist. However, you cannot deny that originalism is currently en vogue as an interpretive method. If you disagree with it, I believe there are two ways to approach challenging originalism as a method of interpretation:

1)demonstrate a superior method.
2)Show that the framers (and indeed the public at large in 1787) did not intend for us to be controlled by their dead hand (wasn't it Jefferson who said the earth belongs to the living and the dead have no control.

Now, I think we can find cites that show this was the opinion of most Framers. Therefore, the originalist movement began shifting to original application or original understanding (I don't know if those are the accepted technical terms) from original intent. The principled reason was that the Framers didn't speak for all of the new Americans; the less principled was that the Framers didn't support this interpretive theory.

However, the second argument can be extended from a “no intent to control from their graves” argument to “actually intended for the Constitution to be interpreted with the times.” Whether you care about the intentions of people in the 18th century or not, if one can show they actually intended the Constitution to be a living Constitution, then originalism is no longer legitimate. Otherwise, one is using a method at odds with the original understanding of how the Constitution should be interpreted when one tries to determine how each provision was originally understood.

I believe the most convincing evidence for a non-static Constitution is the Framers intentional and fully cognizant incorporation of the common law into the document, through the Courts. Common law evolves, and since almost all of the Framers read Blackstone, they all knew this feature of the common law. They knew judges made law, used prior decisions to apply to new times and facts, and interpreted laws dynamically. If the Framers and the public knew this was how the common law worked, then by enshrining the common law in Constitution, they were (at the very least) impliedly consenting to dynamic interpretation of the Constitution in the future through the common law. So the original intent of the Framers and the public defeat the case for originalism.

Now, I totally haven't fully researched or developed this hypothesis, nor do I even know if it is original or a retread. But it seems that originalism has simply sucked up all the air in the room, and if we want to develop a more robust and sensible interpretive method, we should come up with some reasoning for it (besides common sense). Trying to out-originalist the originalists (like Heller) just is not convincing, and while Heller really displays the futility of such an interpretive theory, it doesn't give us another method. The English common law evolved for hundreds of years before the Constitution, and the common law continued to evolve to the modern day, though the current codification of everything makes us look a lot more civil law than ever before. (not that there is anything wrong with codification – the irony for the Mr. DePalmas of the world is – and I would bet you dollars to doughnuts - legislatures have done way more codification (read “approval”) of the law judges make than modification or outright repeal of areas of the common law).

So, maybe there really shouldn't be anything more to interpreting the Constitution then what the Anglo-American courts have always done – utilize the principles of the common law, and develop a Constitutional common law, that bases itself on tradition and principle, but adjusts for the times, and considers new issues and more efficient, more just ways of doing things. Pretty much what we've done for 230 years.

As Dilan points out, the Realists changed the law of contracts in the early 20th century. I would submit this is exactly what the Framers intended: the courts to build, adapt, and evolve the common law as time, logic, reason and justice dictate. I would say the realists didn't destroy an old version of contract law, instead, they evolved the common law. Somewhat semantic as far as the ends, but I think an important distinction as far as what should be considered the means.

(or maybe its all just arglebargle and foofera).
 

nerpzillicus:

We are getting pretty far afield of may basic point. Here is my last word on the subjects you have raised and they you have the thread to yourself:

1) When I speak of the Constitution, I am including the Bill of Rights. The consensus of the ratifying states was that the Constitution was incomplete without a Bill of Rights, with multiple states ratifying the Constitution with a written demand for a subsequent Bill of Rights and NC refusing to ratify at all without a Bill.

2) A written Bill of Rights was not demanded because the drafters and ratifiers thought that the Courts would take away their rights, but rather would not defend them any more than British Courts had.

3) The role of the Courts under our Constitution was described in Federalist 78:

[T]he judiciary is beyond comparison the weakest of the three departments of power...[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers.'

In sum, Hamilton argued that the People should not fear the Article III judiciary because it does not exercise the powers of the legislature or the executive, but if the courts were to do so "there is no liberty." This is not an argument for the Courts to rewrite the Constitution as they please as if it were the common law.

While the common law may have developed the rules for contract interpretation which I propose should be applied to the Constitution, those rules do not permit the Courts to rewrite a contract or the Constitution as if it were the common law.

Legitimate constitutional interpretation is not the equivalent of drafting common law. For example, there is a fundamental difference between interpreting the terms "keep," "bear" and "arms" in the Second Amendment provision "the right of the people to keep and bear arms shall not be infringed," and the illegitimate common law project where the courts attempted to erase the Second Amendment from the Constitution by changing "the right of the People" to the "right of the States" because the judges disagreed with the policy of allowing individuals to keep and bear arms.

The floor is yours.
 

Nerpizillus: "I believe there are two ways to approach challenging originalism as a method of interpretation..."

I offer a third: Howls of derisive laughter. That's all disingenuous stonewalling deserves. Time to put Originalism on the silly-shelf, next to Scalia's worries about counter-majoritarianism. It's all fodder to keep occupied a certain caliber of mind, prone to reasoning by authority while thinking they're thinking, but reasoning folks should simply point and laugh.
 

Overheard: ""This is not an argument for the Courts to rewrite the Constitution as they please as if it were the common law."

Good thing no reasoning creatures think that's what happens. It remains, however, the Court's job, especially at the highest level, to interpret the Constitution where it is subject to serious contention, and there is a certain class of sore loser who then makes wild claims of extra-Constitutional action by the courts.

As I said earlier, there's a reason some folks argue by insinuation rather than honest, forthright statements: it's too easy to refute their nonsense when presented as a direct statement, such as the insinuated (but not actually written) "The Courts [illegally|immorally|Unconstitutionally] re-write the Constitution." No one would take such a claim seriously, it would hardly draw a response. Ah, but make it an insinuation and maybe you'll squeak by with your absurdities.

Overheard: "Here is my last word on the subjects you have raised..."

One can only hope the guy's a Promise Keeper.
 

Part of the problem is that Bart isn't exactly the most serious advocate for originalism that one could find. Thus we find him repeatedly arguing that the Executive Branch has broad, flexible powers that are adaptable to the realities of modern warfare, the existential nature of the terrorist threat, and all that (because, dontcha know, the Constitution is not a suicide pact), yet the Legislative Branch is forever constrained by the dead hand of whatever was thought reasonable in 1787.

So the Constitution forbids the Judiciary from circumscribing the President's powers in the event of a military crisis (whether or not it's an actual crisis) but, at the same time, the document positively demands that the Supreme Court strike down any attempts by the Legislature to address an economic crisis. Like, if the Framers couldn't have imagined the need for a modern regulatory state, that's the ballgame, dude!

Nerpzillicus' posts are thoughtful and interesting, and it's a shame we don't have a better advocate for the other side of the debate. But as I recall from law school, there were a few truly brilliant minds in the Federalist Society, and then there were all the folks who still hadn't gotten over the outrage of Marbury v. Madison...
 

SteveM: "Part of the problem is that [X] isn't exactly the most serious advocate for originalism that one could find."

Now, I didn't excise the name to be cute. My point is that there are no serious advocates to be found anywhere, because it's an argument of convenience, which why I keep likening it to Scalia's now silenced beating of the "but that would be counter-majoritarian" drum. Should we have a suitable Congress paired against the right President then you can believe the cries would reverse (admittedly through a smoke-screen of new code so as to appear slightly less hypocritical). It's not just the local proponents, it's the nature of their club, who by and large epitomize the "Law as a Means to an End" thinking of which Professor Tamanaha writes.

Nice jab re: Marbury. ;)
 

wasn't it Jefferson who said the earth belongs to the living

Jefferson's exact words were "the earth belongs in usufruct to the living". The words "in usufruct" have a technical meaning, namely that the beneficiary (i.e, the living) can use the profits but not the principal.

I believe the most convincing evidence for a non-static Constitution is the Framers intentional and fully cognizant incorporation of the common law into the document, through the Courts.

I'm quibbling, but while they did incorporate common law methods of interpretation, they did NOT incorporate the substance of the common law into the Constitution. The Supreme Court rejected substantive incorporation very early on.

Now, I totally haven't fully researched or developed this hypothesis, nor do I even know if it is original or a retread.

The article I mentioned above -- Jefferson Powell's "The Original Understanding of Original Intent -- explores the issues you've been discussing. GMTA.
 

Mark,

I believe the most convincing evidence for a non-static Constitution is the Framers intentional and fully cognizant incorporation of the common law into the document, through the Courts.

I'm quibbling, but while they did incorporate common law methods of interpretation, they did NOT incorporate the substance of the common law into the Constitution. The Supreme Court rejected substantive incorporation very early on.

Absolutely correct. A very sloppy statement by me. Should read something more like:

"I believe the most convincing evidence for a non-static Constitution is the Framers intentional and fully cognizant mandate that the judicial branch continue the common law tradition in its jurisprudence."

Now, I totally haven't fully researched or developed this hypothesis, nor do I even know if it is original or a retread.

The article I mentioned above -- Jefferson Powell's "The Original Understanding of Original Intent -- explores the issues you've been discussing. GMTA.

i printed this off when you suggested it, but have not had time to look at it yet. But now it's moved to the top of the list. i guess there goes my harvard law review article :)
 

Mark Field:

I'm quibbling, but while they did incorporate common law methods of interpretation, they did NOT incorporate the substance of the common law into the Constitution. The Supreme Court rejected substantive incorporation very early on.

Isn't there an implicit nod, at the very least, to the common law through the provisions of the Seventh Amendment?:

"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law."

Albeit that was not in the unamended constitution.

And then there is the language of Article III, Section 2 ("all cases, in law and equity") that also gives a nod to the notion and legitimacy of courts of common law as understood at the time.

Cheers,
 

... but this is all academic anyway.

As Robert Link has pointed out, RWAs like "Bart" don't really hate common law, they just like to flog the dead horse of "judges legislating from the bench" when they're trying to 'work' the refs, and when they are unhappy about particular judicial decisions. They're pushing for a 'replay' or new refs; which one it is doesn't matter. It has nothing to do with any semblance of legal theory.

Engaging in "original intent" versus "original understanding" versus "original meaning" debate (or trying to force that debate) is implicit fallacy of petitio principii; assuming that such even matters. The typical conservative view is that "the good old days" were the good ... old ... days, and hat we ought to go back there. Change is to be resisted and reversed. Particularly when it is not to their liking, which is pretty muck all the time despite the fact they use the InterToobz to tell us this....


Cheers.
 

Steve M said...

Part of the problem is that Bart isn't exactly the most serious advocate for originalism that one could find. Thus we find him repeatedly arguing that the Executive Branch has broad, flexible powers that are adaptable to the realities of modern warfare, the existential nature of the terrorist threat, and all that (because, dontcha know, the Constitution is not a suicide pact), yet the Legislative Branch is forever constrained by the dead hand of whatever was thought reasonable in 1787.

Try actually reading my posts before you misrepresent my arguments. My arguments have nothing to do with changing circumstances or the flexibility of executive power. My arguments on the balance of war powers come directly from the text of the Constitution, which grants these powers to the President as CiC, except when Congress exercises one of its limited enumerated powers, while Article III does not grant the Courts any war power whatsoever. Further, it is my contention that our current war on terrorists is actually very similar to our prior wars on pirates and other non-state groups and should be handled in much the same way.
 

My arguments on the balance of war powers come directly from the text of the Constitution...

Oh, I understand completely that you imagine this to be the case.
 

Someone once said: the illegitimate common law project where the courts attempted to erase the Second Amendment from the Constitution by changing "the right of the People" to the "right of the States" because the judges disagreed with the policy of allowing individuals to keep and bear arms.


Regardless of your position on the matter, the fact that the word "state" appears in the amendment is a fact, not the result of judges disagreeing with the policy. Interpretation is still legitimate.
 

[Steve M]: Part of the problem is that Bart isn't exactly the most serious advocate for originalism that one could find. Thus we find him repeatedly arguing that the Executive Branch has broad, flexible powers that are adaptable to the realities of modern warfare, the existential nature of the terrorist threat, and all that (because, dontcha know, the Constitution is not a suicide pact), yet the Legislative Branch is forever constrained by the dead hand of whatever was thought reasonable in 1787.

[LSR "Bart"]: Try actually reading my posts before you misrepresent my arguments. My arguments have nothing to do with changing circumstances or the flexibility of executive power.


if we were to take seriously the framer's distaste for standing armies, much less actual damage might result from recent slips from the framer's intent WRT preznitential powers.

"Bart" does try to insist that he's been a Tory all along, and that he'd have undying fealty to the sovereign were he born 200 years ago. Perhaps. But his opinion of things and what he would have thought back then is only of interest in assessing "Bart"'s honesty and lack of hypocrisy, and for that, there's much better evidence to work from. It matters not at all in trying to determine what the founders would have thought, even if we were to allow that their thoughts are important now.

Cheers,
 

[overheard at the bar]: "Further, it is my contention that our current war on terrorists is actually very similar to our prior wars on pirates and other non-state groups and should be handled in much the same way."

One might think that our current war on pirates should be handled in much the same way as our prior wars of pirates. But it's the Dubya maladministration we're talking about....

Nonetheless, the Constitution doesn't speak to that issue.

But I'd point out that the way we dealt with "pirates" a long time back was far from uniform (so to speak). Sometimes we fired (on) them, sometimes we hired them. ;-)

Just more cherry-picking and distortion from the LSR in support of his unitary executive ... now I think it best for me to go back to doing whatever it was I was doing before commenting on overheard conversations.

Cheers,
 

To the extent certain people choose to obsess over the intent of the Founders to the exclusion of all else, there is no indication that their intent was for the Nation to be ruled by their dead hand. In fact, just the opposite.

Well, the very fact that they wrote a constitution in the first place is a very strong indication that their intent was precisely that. That's the entire purpose of having a constitution, particularly a written one.
 

The entire purpose of having a constitution is to ensure that future generations rule themselves precisely as the current generation would have it? Really? I confess, if that were the entire purpose of having a constitution you'd think I would have heard about it before.
 

Overheard: "...our current war on terrorists is actually very similar to our prior wars on pirates and other non-state groups..."

Anyone out there have a line on just from where this is likely to have come? Rush? Sean? Ann? I'm itchy to know the source so as to understand why it's such a trump card in the eyes of some. I've been hearing it as the ostensible show stopper since 2006 when I first started hanging out here, but never seen it floated anywhere save by our local troll. Does anyone reckon it's just because the pirates were Muslim?
 

2005: Legal Affairs

2004: Pirates and other "Enemies of Humankind"

2002 website with similar ideas, citing a previous Daily Telegraph article can be found here

But one of the earliest references to this particular comparison I can find is Dahlia Lithwick on Sept. 14, 2001. Note that she favors Congress acting, rather than the executive, but hey...
 

Pat,

You da man.
 

@PMS_Chicago: Am I reading right (a quick skim while at the dayjob)? That Legal Affairs bit seems to say a) yeah, treat 'em like pirates, which means b) treat it like international crime rather than war. Can't believe the local troll means to support such a position. Another lie of omission?
 

I don't think it's a lie of omission so much as divergent evolution of thought. Once you find terrorists to be in that liminal category between state and individual, you can treat them as criminals akin to pirates (like Burgess suggests would be most effective) or argue that their liminal state makes them subject to new structures or responses. No doubt there are more than two options, but I think recognizing the unusual status is the deep node from which other positions follow.
 

@PMS_Chicago,

Interesting perspective, although the Legal Affairs article seems to scuttle the notion that it's such an unusual status.

Even granting as much as I can to the argument, the difference between military targeting of a comparatively specific group, say "the Barbary pirates", and declaring an amorphous "war" on "terror" is profound. There is no justifying a grant war powers in the latter case, not unless we would likewise grant them for the "war" on poverty or the "war" on drugs (or, in the waning milieu, the "war" on polysyllables). Even the 2002 AUMF authorizing the rape and plunder of Iraq is on sounder epistemological grounds (albeit no better moral grounds).
 

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