Balkinization  

Sunday, June 14, 2009

George Will discovers Carl Schmitt (in the person of Henry Paulson)

Sandy Levinson

George Will has a very interesting column in today's Washingto Post calling for "more judicial activism." He is referring to the Supreme Court's quickly refusing to engage in any oversight over the sale of Chrysler to Fiat, which he suggests raises problems under the Contracts and Taking Clauses. An embarrassment to conservatives is that the Constitution almost ostentatiously does not apply the Contract Clause to the national government, though the Supreme Court in effect applied it in the mid-30s. But the Takings Clause obviously does apply, and I suppose one might take seriously the Indiana argument that its preferred creditor status was "taken" by the government. Wills concludes his column as follows:

Of course courts should not make policy or invent rights not stipulated or implied by statutes or the Constitution's text. But courts have no nobler function than that of actively defending property, contracts and other bulwarks of freedom against depredations by government, including by popularly elected, and popular, officials. Regarding Chrysler and GM, the executive branch is exercising powers it does not have under any statute or constitutional provision. At moments such as this, deference to the political branches constitutes dereliction of judicial duty. ....

A bemused [then-Secretary of the Treasury] Henry Paulson, who was present at the creation of Bailout Nation with TARP funds, said while still in office: "Even if you don't have the authorities -- and frankly I didn't have the authorities for anything -- if you take charge, people will follow." This would not be happening were Congress awake, or were the courts properly active.


Much could be said, including the obvious point that almost no one is a down-the-line "judicial restraint" buff. Everyone wants a decidedly activist court with regard to his/her own favorite readings of the Constitution. Some of us, for example, might believe that courts have "no nobler function" than protecting the rights of the truly vulnerable in our society, including, of course, victims of illegal torture and other depredations during our so-called "Global War on Terror." But that's not really my main point.

Rather, the final paragraph is in many ways what's especiallly interesting, for Paulson is basically saying that Carl Schmitt got it right, that political leaders will freely g0 beyond any notion of limited authority when they believe that they are confronting truly "exceptional" situations. Paulson is describing exactly what a Schmittian "sovereign" does: make a decision, with or without "authority" in the presumption that a scared public will follow. And, of course, this also underscores another one of my hobbyhorses--I actually have several, of which "our deficient Constituiton" is only one--which is that we may well have multiple "constitutional dictators" depending on the particular issue provoking the perception of the "state of exception." Nobody would have taken George W. Bush seriously, but, presumably, it's different when former Princeton Professor of Economics Ben Bernanke or former head of Goldman Sachs (at a final salary of $38 million/year) Henry Paulson says that something really must be done.

I am truly curious, though, how many people would want the judiciary to get actively involved in such decisions. Recall, for example, the Gold Clause Cases, when the Supreme Court (shades of Marbury) said both that FDR had probably acted unconstitutionally, but, alas, that they were without authority to enjoin him from doing so. For himself, FDR had already apparently prepared a speech explaining his intended defiance of the Court had it in effect wrecked his plan to restore the economy.


Comments:

"no nobler function than that of actively defending property, contracts and other bulwarks of freedom against depredations by government"

Yes, that is why property is listed before life and liberty, I guess.

"does not apply the Contract Clause to the national government, though the Supreme Court in effect applied it in the mid-30s"

This was assumed to be a due process matter:

The United States cannot any more than a state interfere with private rights, except for legitimate governmental purposes. They are not included within the constitutional prohibition which prevents states from passing laws impairing the obligation of contracts, but equally with the states they are prohibited from depriving persons or corporations of property without due process of law.

Sinking Fund Cases, 99 U.S. 700 (1878). Shades of this was found much earlier, Justice Johnson in Fletcher v. Peck (1810) not relying on the Contracts Clause but "on a general principle."

The SC is much less concerned with absolutes in this area these days, and likely would hold bankruptcies provide broad discretion. EASTERN ENTERPRISES v. APFEL (1998) does suggest the SC is willing to put some limits on contract matters, including those involving labor.

The Rehnquist and now Roberts Court has shown repeatedly that it is willing to put a break on federal power when it deems fit. It is rather premature, even Will suggests so, to step in now in this ongoing matter.

But, with power comes abuses, so it very well might warrant it in certain instances.
 

"the Constitution almost ostentatiously does not apply the Contract Clause to the national government"

The Constitution was not understood, by those who wrote and ratified it, to grant the federal government any power by which it COULD impair the obligation of contracts, so what would the point have been?

"that political leaders will freely g0 beyond any notion of limited authority when they believe that they are confronting truly "exceptional" situations."

And will view all situations as "exceptional", if permitted to. We have constitutions to restrain political leaders, after all. If the judiciary isn't going to enforce the Constitution when it gets in the way of what political leaders want to do, we might as well dispense with one or the other.

Hm, the Constitution isn't drawing a salary, I know which I'd get rid of...
 

Really, Brett? No one even thought it possible that the power to regulate interstate commerce could impair the obligation of contracts? I'd be interested to see if you have a citation for your claim regarding the original understanding of the Contracts Clause.

As for the original post, the takings argument strikes me as frivolous for pretty much the same reason that the secured creditors have been unable to persuade a single judge that a Bankruptcy Code violation has occurred. Since the assets of Chrysler are being exchanged for fair value (or at least no one has introduced any evidence to the contrary), how can they possibly have a takings argument just because they wish they had a bigger share in the new corporation? They have no vested interest in the new corporation.
 

Might this issue be looked at with the Bankruptcy clause as a potential means of accomplishing something similar? If so, what has priority when there are clashes of the Bankruptcy clause with the Contracts and Takings clauses? To what extent, if any, were statutes under the Bankruptcy clause involved with the arrangement here? I'm not suggesting that the action taken was proper. Perhaps the DOJ had opined on this or at least counsel in the Treasury Department. The Executive branch should be required to respond.
 

Nobody would have taken George W. Bush seriously, but, presumably, it's different when former Princeton Professor of Economics Ben Bernanke or former head of Goldman Sachs (at a final salary of $38 million/year) Henry Paulson says that something really must be done. I am truly curious, though, how many people would want the judiciary to get actively involved in such decisions.

One would expect a federal bankruptcy court in a bankruptcy proceeding to apply basic bankruptcy law concerning secured creditors.

During the Chrysler bankruptcy hearing, over the heated objections of the Chrysler attorneys, the Indiana retirement funds offered emails from the Chrysler attorneys discussing how the threat by the US government and Fiat to pull the plug if the bankruptcy court did not immediately transfer Chrysler's assets out of the reach of the secured creditors was a strong arm "effort to stuff the judge."

Even though Judge Gonzalez knew the government was blackmailing him, he still denied the funds a chance to conduct meaningful discovery and obtain an expert to rebut the Chrylser claim that the funds would get more money under the government plan that by selling off Chrysler. Then, the court appallingly held against the funds on the ground that the Chrysler testimony was unrebutted!

There is no Constitution ever written that will protect the citizenry from the predations of government if the men and women charged under the Constitution with checking government power knowingly enable those predations.

Welcome to Venezuela.
 

Our resident LLB* unwittingly with this:

"There is no Constitution ever written that will protect the citizenry from the predations of government if the men and women charged under the Constitution with checking government power knowingly enable those predations."

exposes the 8 years of Bush/Cheney. Let me count the ways ...."

*Little Lisa'a bro
 

Shag:

You know, it might be useful to contrast and compare the constitutional rights of American teachers and police officers with those you believe accrue to foreign al Qaeda terrorists.

Go right ahead.
 

It might also be interesting to compare the Youngstown case where the Supremes held that Truman did not have the Article II power or congressional authority to seize a steel mill to Obama's nationalization of Chrysler and GM without authority under Article II and TARP.
 

Bart,

What do you think of Paulson's pre-TARP nationalization of AIG?
 

Our resident LLB*'s qoute that I included in my prior comment serves me as a constant reminder of the need for openness and accountability in governance, whether for the 8 years of Bush/Cheney or the 5 months so far of Obama/Biden. Just as our resident LLB* emphatically stated that Brown v. Board of Education was almost 100 years overdue, he has really hit the jackpot with this newer quote. Who was it that said "Out of the mouths of ... oft times come gems"? The 8 years of Bush/Cheney is not just "foreign al Queda terrorists" but many constitutional issues impacting ordinary Americans, including teachers, police officers, firemen.

As for Youngstown, it came down in 1952, the year that I had ConLaw. It is an important decision, demonstrating that Justices do not automatically rubber stamp the Executive that may be of the same political inclination. Contrast and consider Bush v. Gore and other decisions of the Rehnquist and Roberts (aka Federalist Society) Court since Bush v. Gore supporting the Bush/Cheney strong Executive theme in most instances. Would that one of Roberts, Scalia, Roberts and Thomas had the integrity and courage of a Justice Jackson in Youngstown.

Can we finally put our resident LLB* on the side of openness and accountability in governance regardless of party? A lot of stuff has to be sorted out. For example, I would challenge Obama/Biden on Af/Pak. Obama/Biden will not get a free ride from liberals unlike our resident LLB*'s 8 year roller coaster Bush/Cheney ride.

*Little Lisa's bro
 

EL:

Congress enacted the Housing and Economic Recovery Act of 2008 in July for the purpose of nationalizing Freddie and Fannie, which Paulson implemented in September 2008. There has been almost no reporting on how the nationalization was implemented and none of the shareholders have brought suit.

As a general matter, the Bush Administration set the stage for many of Obama's later extra constitutional acts:

1) Paulson started the strong arm tactics by threatening regulatory compulsion if the banks did not agree to purchase Merrill Lynch and later to take TARP money. I will make you an offer you can't refuse type of mafia socialism.

2) Just as bad, Bush unconstitutionally "reinterpreted" TARP to use the money to bail out the auto companies, which gave Obama cover for his later nationalizations.

We are entering new territory here - the first truly socialist administration in US history. I do not mean this is some cheap partisan epithet sort of way. I have been researching this for a couple months and started writing a book describing Mr. Obama extensive background in economic democracy, green socialism and Saul Alinsky's Rules for Radicals strategies for selling socialism to the middle class, and later synthesis of these three streams of thought into a New Socialism that we are seeing played out with the banks and the auto industry, and perhaps also through his as yet undefined health industry and carbon regulation initiatives.

Fascinatingly, the Obama game plan was described nearly completely by a radical economic democracy proponent and professor named David Schweickert in an online article back in the fall of 2008. I have not yet been able to find a direct connection between the two men, but Schweickert lives in the same Chicago neighborhood as Obama, his daughter attended an Obama law school class, they share the same connections to the Chicago Democratic Socialists of America and Scwieckert is one of the members of Progressives for Obama.

I better stop before I get going. The bottom line is that what Obama has accomplished largely under the radar during the first few months of his administration is truly impressive, important and, if you believe in free markets as I do, horrifying.

We are living in interesting times.
 

If our resident LLB* thinks:

"We are living in interesting times."

currently, what, pray tell, does he think about the 8 years prior to 1/20/09? Were those interesting times, or something else? Let's review what happened during those 8 years .... Remember Arte Johnson's line from "Laugh-In" "Verrry interesting, but stupid!"

*Little Lisa's bro
 

We are living in interesting times.

# posted by Bart DePalma : 11:50 AM



At least we're no longer being led by clowns looking for an excuse to invade Iran.
 

Shag:

There wasn't much novel about the Bush years apart from 9/11 and the Boumediene decision.

The interrogation policy was from JFK & LBJ.

The rendition was from the Clinton era.

The electronic surveillance was simply a technologically updated version of what we have been doing since the Civil War.

AUMFs are post Vietnam

Liberating countries is what the US was engaged in for most of the 20th Century.

The Bush Doctrine was a warmed over version of the Wilson and Reagan Doctrines.

The Bush tax rate reductions were a pale copy of the Reagan reforms.

We have been adding onto Medicare since it came into existence.

The Bush era was one long retread.

Obama is something new.
 

BB:

You make a good point. The Iranian democracy movement is indeed on its own.

Mr. Obama and Mrs. Clinton received that much publicized 3 A.M. phone call and declined to answer.

Tiananmen Square all over again.
 

Baghdad, the scum you support didn't give a fuck about democracy, and neither do you.

It looks like the Iranians have a Florida 2000 situation on their hands. Hopefully it turns out better for them than it did for us.
 

Tiananmen Square all over again.

# posted by Bart DePalma : 2:19 PM



If you feel we should have invaded China over Tiananmen Square, you have some serious problems.
 

"no nobler function than that of actively defending property, contracts and other bulwarks of freedom against depredations by government"

Yes, that is why property is listed before life and liberty, I guess.


Ha!

Yep, I get all teary-eyed when I hear Will and his ilk go on and on about the Founding Fathers' passionate love of capital.

Will also gets it bass-ackwards on contract. Government depredations of contract? Hello? Contract doesn't exist without government. Try again.

What he probably means is government failing to enforce contracts he likes and believes exist. Giving him the benefit of the doubt on this, his argument still misses the mark. The power to enforce a contract is also the power to decline to do so. And gosh darn it, wouldn't you know that'd come in a case where Will thinks there is one and it should be enforced. Apparently Will hasn't heard that government can and does every day decline to enforce contracts that people thought they had.

However I have a guess as to why Will's such a storehouse of recently discovered and fervently believed-in contracts. My guess is, like a lot of conservatives, Will just believes the deal's been changed midstream. At bottom it's a social contract he thinks has been violated. And he's probably right. But getting the courts to agree and find support in the code, that's another question, Will.

Of course, Will is busily asserting things are legally thus-and-such to an audience of non-lawyers. Few of his readers are going to consider Sinking Fund Cases, 99 U.S. 700 (1878) -- or anything else. I could likewise spout nonsense about pointer arithmetic in the C programming language and sound pretty good to over 99% of the audience. Sadly, C is unforgiving and does not care how many people believe inaccurate info about it. And no help if you accuse it of judicial activism, or inactivism, or anything.
 

jpk-

I gotta take issue with something you said. While C itself may not be a judicial activist, I have seen some pretty judgmental compilers. :)
 

Some fascinating analogies here.

Let's say you're the release engineer for a large and longstanding body of code. Over time compilers get better and better. Some code that used to pass inspection now gets flagged by the compiler. Your standard for releases is no compiler messages, not even a warning. But the code's been in there for ten years, has compiled and executed correctly that entire time across a dozen platforms. Any fix you make to appease the compiler will not have anywhere near that amount of real-world testing. Perhaps it's time to invoke precedent?

I could go on.
 

Sounds to me like the standard is creating an ex post facto rule. Maybe we treat the code like a non-conforming use in zoning?

Is the W3C then the Congress, and Microsoft an activist 9th Circuit?
 

Ah, but the standard hasn't changed. The compiler is the court here. The newer compiler enforces the standard more strictly than the older one. The code was in violation of the standard at all times. But enforcing the standard now on a well-tested piece of code that's technically in violation may be a big mistake.

So not ex post facto. But grandfathering seems on the mark. And real estate a rich source of examples for fun with analogy.

W3C? Amicus maybe.

Microsoft is like a lobbyist with more money than God. Buys a lot of law it likes.
 

So would you see the compliler as a living constitutionalist, interpreting the standard in the light as seen today, or an orignialist, correcting past lazy compilers for their failure to follow the original meaning of the standard when interpreting the code in the past?

But Microsoft doesn't really make the laws. I mean the W3C throws out standards all the time, and MS just makes its own rules. maybe MS is the unitary executive, refusing to enforce any rule it thinks infringes on its power as market-actor-in-chief?
 

Here's our resident LLB*'s revisionism on the 8 Bush/Cheney years:

"The Bush era was one long retread."

Yes, nothing happened, no Mission Accomplished, no WMD, just a copycat era. OOPS! Did our resident LLB* forget about Katrina? And the bubbles, including those that popped in '07 and '08? Remember, the memory is the second thing to go.

But for a retread era, our resident LLB* was activley cheerleading for Bush/Cheney for all those 8 years. With this attempt at revisionism on the part of our resident LLB*, is he suggesting that for those 8 years he was pulling a Rip Van Winkle, asleep in the hills of Colorado with his Backpack of Lies as his pillow? So our resident LLB*'s history will show a snooze of 8 years after Clinton up to 1/20/09? Maybe the rest of us have been dreaming, too.

*Little Lisa's bro
 

"The newer compiler enforces the standard more strictly than the older one."

More like, software maintainance team couldn't get a buyoff from the customer to make certain changes they wanted to the code, so they've rigged the compiler to output software with those changes, regardless of what code is fed into it.
 

Brett, how long have you been a C programmer?
 

I have not yet been able to find a direct connection between the two men, but Schweickert lives in the same Chicago neighborhood as Obama...

Awesome! I guess that makes me a "socialist" by association, too. I suppose the fact that many U of C faculty live in that same neighborhood might cause your hyptohesis some problems, given the fact that the Chicago School o' economics has likely had quite a few members living there, as well.
 

I was a Fortran programmer, but not for a long while. Learned while in high school, on a computer that used core memory. ;)
 

If you knew Fortran you must know that your analogy makes no sense.
 

Standards? Hell, we started writing drivers in C ... on occasion with "inline asm" directives as necessity dictated (before "volatile" types and O/S semaphores were invented, it might be necessary to do things such as execute the "Old MacDonald" instruction at times, and occasionally mask interrupts too).

Cheers,
 

"If you knew Fortran you must know that your analogy makes no sense."

That's what makes it such a perfect analogy for living constitutionalism. Which doesn't make any sense, either.
 

That's what makes it such a perfect analogy for living constitutionalism. Which doesn't make any sense, either.

>OTOH
 

That's what makes it such a perfect analogy for living constitutionalism. Which doesn't make any sense, either.

# posted by Brett : 8:26 PM



Good point. Your description of how a compiler works is complete gibberish, much like your complaints about living constitutionalism.
 

Seriously, I'm not the one who decided to analogize the law to a compiled language, when it's clearly an interpreted language. But as far as my analogy goes, nothing would be simpler than writing a compiler OR interpreter which would output the same program desired by the person who'd originated it, no matter what source code was fed in. Doing so is a lot easier than writing a functional interpreter or compiler.

And it's essentially what living constitutionalism amounts to: Abusing being in the position of interpreting code you're not authorized to change, by substituting results you prefer for what the code actually specifies.
 

My experience with compiler upgrades that break old code indicates that it happens only rarely because the language standards are more strictly enforced.

To the contrary, it usually happens because the compiler designers have come up with some way to make the output of the code generator execute faster, but which requires the programmer to be a little less cavalier about some constructs. For an example of this, look up "type punning". A hot-shot programmer (who wasn't nearly as hot as he thought he was) and a hot-shot compiler writer (who created a new type of error but no error message to go with it) collaborated once to cost me a whole lotta pain. You know you're in deep when you are debugging a 2-million line C program in assembly language.

Programming languages which are not under development and extension are worthless ones, like ALGOL or COBOL -- he wouldn't recognize FORTRAN anymore, by the way. What that says by analogy about constitutions you may imagine.
 

Seriously, I'm not the one who decided to analogize the law to a compiled language

# posted by Brett : 9:12 PM




No, you're the one who tried to jump into the middle of a geekfest on a topic about which you clearly know next to nothing.
 

Brett:

And it's essentially what living constitutionalism amounts to: Abusing being in the position of interpreting code you're not authorized to change, by substituting results you prefer for what the code actually specifies.

Oh, bull. Scalia was perfectly content to say the Eleventh Amendment meant precisely what it did not say. Claiming that "living constitutionalists" are the only ones prone to "results-oriented" decisions is simply a lie....

Cheers,
 

Pardon one more O/T comment, but there's one anecdote that's priceless:

I wrote some code that called a function written by a colleague and friend of mine. Using a compiler written by a company that through several peregrinations finally got eated by Intel recently, we found that with optimizations turned on, the compiled code simply neglected to actually call my friend's function. I pointed out to my friend that this was an amazingly perceptive optimizer; having examined his code, it simply concluded that his code didn't do anything worthwhile.

Who says that there's no such thing as "artificial imtelligence"?

It was, of course, a compiler bug .. and a pretty weird one ... but the opportunity to rib my friend about this was ... as Mastercard says, priceless.

Cheers,
 

Brett's attack on living constitutionalism may be a geek's way of supporting originalism without actually saying so. Since I have not as yet found the Holy Grail of Constitutional Interpretation and my search continues - primarily via SSRN - I continue to be astounded by the well reasoned attacks upon originalism post-Heller, using Heller itself as the platform for the attack, such as:

Jamal Greene's "Heller High Water? The Future of Originalism" available via SSRN at:

http://ssrn.com/abstract=1413801

and

Jeffrey M. Shaman's "The End of Originalism" also available via SSRN. [Caution: this is a preliminary draft and the author requests "do not quote or cite" without his permission. Those interested will have to go to SSRN for more information. I can't wait for the final version because this draft is so great.]

By the Bybee, there recently surfaced yet another version of originalism: Original Methods Originalism. This is explained by John O. McGinnis and Michael B. Rappaport in their "Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction," 103 Northwestern University Law Review No. 2, also available via SSRN but the URL was not included on my printout. [Caution: You may need a pint of Guinness and a glass of Port to make it through these 53 tight pages. My, my, the simplicity of originalism seems to get more and more complex.]

I decline to get involved in these software battles, because I'm big in hardware. But imagine the Holy Grail of Constitutional Interpretation being available by the push of a button and not having to listen to Scalia, Thomas, and the usual suspects. That Jamal Greene is a hot ticket: "Heller High Water" indeed.

Another By the Bybee: Try Googling "Million Man Second Amendment March on Washington, D.C." and be dazzled by the number of hits. The problem may be the hits in the course of the march with so many crazies carrying, open and concealed.
 

Well, I've defended originalism often enough here, I didn't think I had to make it explicit every time.

Originalism is triumphant... In the realm of public opinion, and only in the realm of public opinion. If a case has high public saliency, like Heller, both sides will feel they must at least pretend to be engaging in originalist reasoning, in order that their opinion will have some degree of public legitimacy.

And neither side will actually do so.

Originalism has been an almost complete bust, so far as penetrating into actual judging. This is scarcely surprising; Though one of the major parties finds it necessary for political reasons to express a desire for limited government, neither actually desires to be restricted to the powers actually delegated the federal government by the Constition.

And so, Democrats nominate living constitutionalists, openly, and Republicans do so, and lie about it. The only difference is the distortions the two parties prefer.

Heller was a particular embarassment for originalists. The majority didn't (Wouldn't?) even get right such basic matters as who had prevailed at the circuit court level in Miller, or what Miller's holding had been. They couldn't: Miller actually was a case of solid originalist reasoning, and reached a conclusion, that a criminal had a right to own a weapon of war, that they found too distasteful to uphold.

I don't see much future for originalism under our current Constitution. It's the honest way to interpret the Constitution, but neither party wants to be honest about that document, if being honest means exercising less power.

Maybe it has a future if we were to have a constitutional convention, and craft a constitution the political class would be willing to live within. But I doubt even that, they've grown too used to living without real constraints, even constraints of their own chosing would chafe.
 

What if a constitutional convention considered the matter of how a new Constitution should be interpreted? What form might that take? While the current Constitution, as amended, formally and otherwise, fails to provide a definitive rule of how it's to be interpreted*, it has served fairly well for over 200 years. So perhaps some of the posters and commenters on this Blog might come up with some ideas for such a rule in a new Constitution. (I have not checked the Constitution 2020 project literature as yet; perhaps its contributors have offered suggestions for such a rule.)

*McGinnis and Rappaport in their recent article I cited in an earlier comment seem to be of the view that their "Original Methods Originalism" is supported by the Constitution as an interpretive tool. This appears in the last paragraph of the article:

"In our view, original methods is the best positive interpretive theory of the Constitution because it captures the actual meaning the enactors ascribed to our founding legal document. Original methods is also the best normative interpretive theory because it discovers the desirable meaning of the Constitution. The desirability of the Constitution depends on it having received a concensus at the time of its enactment. And the meaning of that concensus is best determined by reference to the interpretive methods that the enactors would have employed. Hence, original methods both discerns the actual meaning of the Constitution and the desirable meaning that passed through the supermajoritarian process."

QED? I think not. Perhaps their next step is a book enumerating "the interpretive methods that the enactors would have employed." That would make everything easy?
 

I supplied a link above to a defense, of sorts (the authors prefer a different term), of LC. It has a discussion of Heller.

"Originalism is triumphant... In the realm of public opinion"

It is unclear how much it is "triumphant" since the public as much as "Democrats" and "Republicans" does not seem to "desire" the restriction of powers Brett deems obligated by "originalism."

Thus, they elect the people who nominate judges that are not "originalist." Those who oppose a simplistic view of "originalism" btw are quite "honest," in fact, arguing that a honest interpretation of what is actually done (and always has been) is the LC approach.

"powers actually delegated the federal government by the Constitution"

What they are is open to debate, one that Brett generally loses to the dominant "public opinion." Anyway, since the C. also concerns state power and individual rights, this is a myopic view of things.

"The majority didn't (Wouldn't?) even get right such basic matters as who had prevailed at the circuit court level in Miller"

It discussed the SC holding, the one that actually counts. We generally can tell by the case title in federal cases who won below anyway. Thus, Heller won below, and D.C. petitioned for reversal. I'm unsure where Scalia said otherwise.

"or what Miller's holding had been"

Miller lost on the SC level.

"Miller actually was a case of solid originalist reasoning, and reached a conclusion, that a criminal had a right to own a weapon of war, that they found too distasteful to uphold."

Miller held (quoting Heller):

In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

I'm unsure how appealing this is to your side or how much it fits what you claimed Miller held. As to the lower court opinion, this is the breadth of its analysis (after two paragraphs discussing the facts):

The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States, U.S.C.A., providing, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The demurrer is accordingly sustained.

"living without real constraints"

What does this even mean? Can the state ban books that criticize the Dear Leader? Can they willy-nilly arrest people without any due process? Can unpopular candidates who win with 60% of the vote not be seated? Can matters that a majority of both houses of the legislature support be passed on an up/down vote w/o a supermajority being necessary?

Reality indeed.
 

In addition to Joe's comments, let me add another reason why I think originalism has failed as a theory: it's inconsistent with popular sovereignty.

In a republic/democracy, the people as a whole understand that they are ultimately responsible for their own governance. Originalism tries to take away this responsibility, granting it instead to those who've been dead for 200 years now. It's hardly surprising that the public wants to run things its own way, less surprising that they actually do so regardless of what "theory" might tell them. The only thing that IS surprising is that there are people foolish enough to believe that they can interpret a republican constitution so as to deny the most fundamental principle of republican government.
 

The link provided above also makes Mark Field's point. One summary of their approach:

To be faithful to the Constitution is to interpret its words and to apply its principles in ways that preserve the Constitution's meaning and democratic legitimacy over time.
 

"Miller lost on the SC level."

No, he didn't. The lower court had found the NFA facially unconstitutional. The Supreme court said, no, it's only unconstitutional with regards to possesion of firearms with military utility. And sent the case back for a factual determination as to whether sawn off shotguns had such utility.

Which never took place because Miller was dead.

That's not a win or a loss.
 

"That's not a win or a loss."

Unless you consider how many lives may have been saved from gun nuts as a result of Miller for its impact on lower courts.
 

Shag from Brookline said...

Unless you consider how many lives may have been saved from gun nuts as a result of Miller for its impact on lower courts.

Yup, federal gun laws sure stopped the bloodbaths during Prohibition I and our current Prohibition II.

Dude, when a gangster weighs bearing firearms to kill his enemies and protect himself from being killed against a federal gun law, take a wild guess which one wins.
 

"Miller lost on the SC level."

Miller himself didn't even make it to the Supremes and submitted no briefs or oral argument. The only party to submit briefs was the government.

This is probably one of the reasons why the Miller opinion was such a hash.
 

I would ask our resident LLB* (aka gun nut) to

" . . . take a wild guess . . . "

how many innocent family members get killed or injured annually in homes with guns, legal or illegal, including accidentally?

Perhaps after Miller, some people were deterred from having sawed-off shotguns or other arms.

By the Bybee, is our resident LLB* (aka gun nut) outraged by Scalia's dicta limitations on Second Amendment rights, preferring an unlimited right to keep and bear arms, open, concealed, whatever its fire power? And would our resident LLB* (aka gun nut) deprive an ex-felon of a self-defense right in his/her own home - or wherever?

*Little Lisa's bro
 

No need to guess; the facts are in the literatureand easy to find.
 

No, he didn't.

The opinion ended thusly:

We are unable to accept the conclusion [2A claim] of the court below, and the challenged judgment must be reversed.

The SC also rejected a 10A claim. Loss. As to the 2A claim, the court below was "reversed." Not a win. As to what happened after it was sent back, see below.

The lower court had found the NFA facially unconstitutional.

Rather a section of the NFA unconstitutional. [1132 et seq. vs. 1132j]. Since this case was as much a tax case as anything else, it is useful to note the complexity of the law involved.

The Supreme court said, no, it's only unconstitutional with regards to possession of firearms with military utility.

Miller said:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense

Thus, the ultimate end was the promotion of the "militia," not baldly "military utility" or as you originally said some "weapon of war."

It surely did not say [since it didn't have to address it] that a "criminal" had the right to own such a weapon. Criminals traditionally denied certain rights of "the people," including voting.

And sent the case back for a factual determination as to whether sawed off shotguns had such utility.

I guess this is possible, but it only said this:

We are unable to accept the conclusion of the court below, and the challenged judgment must be reversed. The cause will be remanded for further proceedings.

I'll grant this could mean what you say it means, but ...

Which never took place because Miller was dead.

here is a detailed discussion of the case.

The opinion was handed down 5/15/1939. By then, yes, Miller was dead. His co-defendant, Layton, was not. "Layton pleaded guilty to the reinstated NFA charge."

The judge who originally declared the charge unconstitutional accepted it. He had previously refused to accept a plea & appointed counsel ... eventually resulting in the Supreme Court case. So, if he thought a 2A claim was open, I'm unsure why he accepted the plea.

That's not a win or a loss.

Sounds like a loss; at the very least, it was a partial loss, since the SC definitely rejected the 10A argument.

On remand, Layton didn't benefit from the 2A argument either.

-----

The article I linked, btw, suggests this was a test case. The lower court's token analysis only helps the argument as does the judge's past actions.

The pro bono lawyer was not paid & instructed the SC clerk that he would not submit a brief. This is not totally unprecedented -- see, e.g., Marbury v. Madison, where Madison didn't show up.

It is doubtful that the SC would have ruled otherwise even if the lawyer wrote a brief. The tax issue was decided by the SC already. 2A rights of criminals using sawed off shotguns is not an ideal case.

Overall, the opinion is decently written in comparison with others. Its author also wrote such important cases like Meyer v. Nebraska, which is if anything more thin in scope.
 

"Unlimited"? The Miller decision was scarcely that: Per Miller, if a firearm doesn't have military applications, it's unprotected by the 2nd amendment. That leaves a lot of modern civilian firearms out in the cold, at least half my gun collection. Just not the ones the gun banners loath most.

The point of the 2nd was to make sure that a militia could be constituted in an emergency from the general population, bearing arms they already owned. It's got nothing to do with civilian uses of firearms, except in so far as they serve that end.
 

Mark thinks it surprising that originalists want to undermine [or ignore] popular sovereignty. I do not think this is so surprising when one considers those who embrace originalism: traditonalists who are no more genuinely republican than Plato, self-styled libertarians who live in terror of any perceived encroachment on their rights, and conservative elitists who think the masses ought to be kept dumb and disenfranichised.
Ok, I exaggerate. :-)

However, what seems genuinely surprising about originalism to me is that it is such a crazily impractical view. I get that people want constraints on raw majoritarianism and on raw judicial discretion, but the imagined intentions of a sub-section of the American population, all of whom died hundreds of years ago?
Even traditionalists have to acknowledge that things DO change, even just facts on the ground. Perhaps they want to cling to the same values and would like to minimize change, but how can anyone expect a vision of the world 200 years ago to work for the world in which we live?

Unless we want to claim that the C. is such a meta-level document that it does not touch concrete matters, we have to think it needs to be applied to the facts of the world in which we now live. And, to apply it to that world requires interpreting it in light of those facts.
 

Fascinatingly, the Obama game plan was described nearly completely by a radical economic democracy proponent and professor named David Schweickert in an online article back in the fall of 2008. I have not yet been able to find a direct connection between the two men, but Schweickert lives in the same Chicago neighborhood as Obama, his daughter attended an Obama law school class, they share the same connections to the Chicago Democratic Socialists of America and Scwieckert is one of the members of Progressives for Obama.

Bart, you are finally starting to give me the whillies.
 

" but how can anyone expect a vision of the world 200 years ago to work for the world in which we live? "

Ok, that's the key thing here: We don't. A two hundred plus year old document, written for an agrarian society, is not going to work today. This is blatently obvious. (Of course, the whole thing isn't 200 years old.)

That's not the point of disagreement. The point of disagreement is whether you actually change the words of the document, or just pretend that the 200 plus year old document suddenly means something suitable for a modern society. Or rather, a certain critically placed segement of society's opinion of what's suitable...

The argument is whether it adapts by amendment, or by suborning judges to say it means what you want.

Our position is that, if you want the freaking document to change it's meaning, you've got to change the words. Draft the damn amendments, and send them out to the states for ratifications. And when some of them don't get ratified, ACCEPT THAT!

As opposed to just training lawyers in doublethink, which is what we do now.
 

The point of disagreement is whether you actually change the words of the document, or just pretend that the 200 plus year old document suddenly means something suitable for a modern society.

No, nobody needs to change the words if those same words apply perfectly well to society today. That's the genius of the Founders -- we can apply the same words to different social and material circumstances, and still have a meaningful system of government.
 

Shag from Brookline said...

I would ask our resident LLB* (aka gun nut) to

" . . . take a wild guess . . . "

how many innocent family members get killed or injured annually in homes with guns, legal or illegal, including accidentally?


Far fewer than are accidentally injured or killed with common household chemicals or in autos.

More importantly, accidental injuries or deaths are a miniscule amount compared to the armed defenses preventing bodily injury or death with those same firearms.

My father used his .45 twice that I know of to prevent a car jacking and a burglary of our home. If you decide to come uninvited into my home, you will be looking down the barrel of that same pistol. In contrast, no one in our family has ever been injured by the multitude of firearms we own.

Firearms are tools. If you take them seriously and educate yourself and yours on how to properly use them, then they will serve you well.

If you are negligent or afraid of firearms, then disarm yourself and depend upon luck and the mercy of strangers. Just leave my family and I the hell alone.
 

"No, nobody needs to change the words if those same words apply perfectly well to society today"

That's true: To the extent those words are perfectly adapted to today's society, they don't have to be amended. And, to that extent, you don't have to lie about what the words mean, either.

And, to that extent, we wouldn't be arguing here. Because we're not talking about those parts of the Constitution. We're talking about the parts where the 'interpretation' has been radically altered, without any change to the text.
 

Mark Field said...

The point of disagreement is whether you actually change the words of the document, or just pretend that the 200 plus year old document suddenly means something suitable for a modern society.

No, nobody needs to change the words if those same words apply perfectly well to society today. That's the genius of the Founders -- we can apply the same words to different social and material circumstances, and still have a meaningful system of government.


Actually, the Founders were rather specific about and stingy with the powers the Constitution granted the federal government. Much of the modern bureaucratic welfare state is unconstitutional, thus the judicial rewriting of the Constitution.
 

And, to that extent, we wouldn't be arguing here. Because we're not talking about those parts of the Constitution. We're talking about the parts where the 'interpretation' has been radically altered, without any change to the text.

# posted by Brett : 4:18 PM



Do you believe the 2nd Ammendment means that virtually any chucklehead who wants a gun can have one?
 

That anyone would be surprised that a written document created 200 yrs ago and interpreted solely by nine un-elected individuals appointed for life tenure is one containing essentially "undemocratic" features at it's core is the surprising thing.
 

Our resident LLB* (aka gun nut) seems so incensed with this:

"If you decide to come uninvited into my home, you will be looking down the barrel of that same pistol."

that perhaps the same might result even if invited.

And being the crackerjack fact checker that our resident LLB* (aka gun nut) is:

"More importantly, accidental injuries or deaths are a miniscule amount compared to the armed defenses preventing bodily injury or death with those same firearms."

surely he has the numbers to back this up.

*Little Lisa's bro
 

"Do you believe the 2nd Ammendment means that virtually any chucklehead who wants a gun can have one?"

If only the people who you didn't think were chuckleheads had rights, who among us would be free? Darned few, I suspect.

Yeah, I think every chucklehead is entitled to exercise his or her rights as an American citizen, until individually proven to be a chucklehead to the satisficaction of a jury of their peers. I don't think rights belong only to people somebody calling himself "Bartbuster" thinks deserve them.
 

Yeah, I think every chucklehead is entitled to exercise his or her rights as an American citizen



That doesn't answer the question. Do you think the 2nd Ammendment gives any Chucklehead the right to own a gun? If you do, then you appear to be making a rather blatant, and radical, alteration to the text of the 2nd Ammendment.
 

"If you do, then you appear to be making a rather blatant, and radical, alteration to the text of the 2nd Ammendment."

Really? It says, "right of the people"; That's always been understood to include chuckleheads who haven't been convicted of a felony, or found to be mentally incompetent. Are chuckleheads entitled to peaceably assemble, and petition the government for redress of grevances? Are chuckleheads entitled to be secure in their persons, houses, papers, and effects?

Chuckleheads are people, too.
 

Really? It says, "right of the people"

Yes, the people who belong to militias. Ignoring the militia qualifier seems to be a pretty radical change to the text, don't you think?
 

Shag:

Try checking the CDC site under unintentional injuries. The latest stats for 2006:

Auto injuries: 43,664 (35.9%)

Poisoning: 27,531 (22.6%)

Firearm: 642 (0.05%)

This is not even remotely close.

bb:

Generally, constitutional rights are only denied felons, the mentally ill and abridged somewhat for children.

However, I fully encourage chuckleheads like firearm prohibitionists to remain unarmed if they wish, as I encourage green chuckleheads to stop using all goods and services whose production and use emits CO2, and pro choice chuckleheads to kill off their unborn. Natural selection should do the rest in keeping their numbers down.
 

Generally, constitutional rights are only denied felons, the mentally ill and abridged somewhat for children.

# posted by Bart DePalma : 5:10 PM



If you read the actual text, the group of people that have the right to carry a firearm is even more limited than that.
 

and pro choice chuckleheads to kill off their unborn.

# posted by Bart DePalma : 5:10 PM



Baghdad, it's good to see that you're finally seeing the merits of the pro-choice argument.
 

We're talking about the parts where the 'interpretation' has been radically altered, without any change to the text.

Then I guess the interpretation of "arms" to mean "muskets" causes you no problem.
 

BB:

The population who enjoy the right to keep and bear arms under the text of the Second Amendment are the entire People, which is why one can only exclude those who are ordinarily denied other rights of the People because of criminal behavior or incapacity.
 

Brett and Mark:

Insofar as we are all speaking very abstractly, here, without specific examples, I don't know how far we can get.

Still, Brett, let me try to clarify what I see as a central question: to what extent can/should the precise words of the C. be interpreted to apply to novel cases that seem to fit under the meaning of the language but which the framers could not have foreseen?

Use Hart's example about the 'vehicles in the park after 5pm' and the problem of some new thing - roller blades, for example. Must we really get new legislation [much less an amendment] rather than let courts decide if roller blades are 'vehicles'?

So, think about the 2nd Amend. Those people new what they meant, in their time, by "a well-ordered militia;" and they also knew that in their time many families needed rifles to hunt or protect themselves against wild animals.

Do we, in our time, really need an amendment to suss out a right to have guns for our own world?

And, if you think about the incredbile pace at which medical science continues to alter the facts relevant to questions about life, body, death, etc...how could we possibly keep up through the amendment process?
 

CTS:

None of this is that difficult.

The Second Amendment refers to small arms which a citizen is able to "bear." This rules out crew served weapons, artillery, etc.

The grammar of the prefatory clause of the Amendment indicates that the right is in part meant to maintain the viability of the militia. The original meaning of militia at that time was an armed citizenry. Thus, arms must at minimum include small arms of the kind carried by the citizenry that were suitable for militia duty.

Where even originalists like Scalia get squeamish is that the plain meaning of the text would appear to encompass automatic small arms like M16s. Thus, the judicially finessed definition of arms normally possessed by the citizenry, which would appear to rule out automatic weapons that have been restricted since their advent.

While I would follow the text of the Constitution to a T and allow automatic weapons as do the Swiss and the Israelis, I can live with a finesse that would still protect 99% of the firearms available today.
 

Our resident LLB* provides a link with this::

"Try checking the CDC site under unintentional injuries." [unintentional injuries]

but no connection via either aol or safari.

*Little Lisa's bro
 

The population who enjoy the right to keep and bear arms under the text of the Second Amendment are the entire People

# posted by Bart DePalma : 5:31 PM



Only if you make a rather radical modification to the actual text.
 

"Ignoring the militia qualifier seems to be a pretty radical change to the text, don't you think?"

There is no militia qualifier to who has the right, it's a "right of the people", just like the 1st, just like the 4th.

It's the people's right to militia weapons.
 

There is no militia qualifier to who has the right, it's a "right of the people", just like the 1st, just like the 4th.

It's the people's right to militia weapons.

# posted by Brett : 6:23 PM



Clearly we are never going to reach an agreement on this point, If only there was an arbitrator we could turn to...

Just out of curiosity, how much do you have to disagree with a SC decision before it becomes a "radical" decision? And how to you quantify that?
 

Do we, in our time, really need an amendment to suss out a right to have guns for our own world?

If "suss" means "to figure," I'd say the current amendments in place continue to mean there is a right to have guns. People still use them in self-defense. An armed citizenry continues to be a check.

Other uses (such as hunting) might be secured by the 9A. State constitutions and popular opinion also suggest the right remains fundamental. And, abolition would require serious privacy invasion.

Various limits, including type of weapon and class who can be allowed to use them also are warranted by the text. Heller sets forth a decent approach, even if how they get there is open to debate.

And, if you think about the incredible pace at which medical science continues to alter the facts relevant to questions about life, body, death, etc...how could we possibly keep up through the amendment process?

I'm unclear how this follows. What would be a constitutional provision where this is relevant, one where it no longer is possible to amend in time?
 

Full disclosure:
I have a doctorate in philosophy, specialize in legal and political phil and ethics. I have published [books and articles] in legalphilosophy and worked with lway professors as much as other philosophers. Legal hermeneutics is not my area, but I am hardly a no-nothing.

My MO, here, is to raise questions to get others to talk and answer some questions. Occasionally, I say something snide or get on my ethics soapbox. I studiously avoid taking the 'I kow my stuff' stance. There seems to be, umm, enought of that. I also try to not be too self-assertive, here; partly that is a 'gender-thing,' but it is also a matter of my not wanting to assume familiarity. (A 'New England thing.')

So, Bart: None of this is that difficult. I realize you did not intend for that to be read as patronizing. However, the fact is that I know perfectly well that much of 'this' is very, very difficult - if by 'difficult' one means hotly contested. And, of course, if 'this' includes not only 2nd A. disputes but also the whole of legal hermeneutics, well, take it from me: it's plenty difficult.

Joe:
I did not mean that we would need a c-level change for every new medical advnace. Rather, I meant to point to changes in our basic notions of the human condition resulting from advances in medical science. Given the nature of those changes and that most c-level issues concern important rights, I would not want to see alterations in our understanding of c-level gaurantees left to anything so cumbersome as the amendment process.

Perhaps the med sci example was not a good one for my point about hermeneutics and novel cases. However, I can think of a med sci issue that does address your point about 'keeping up': viz., the abortion debate. Assuming [big one] that at least one central concern is something like 'viability,' then the state of medical knowledge is quite relevant. If we are going to seek someway of adjusting women's reproductive rights in terms of fetal viability, it might be very wise to have courts do this rather than the slower amendment process.
 

None of this is that difficult.


I guess you weren't around when those guys were arguing over what the Constitution should say.
 

"Just out of curiosity, how much do you have to disagree with a SC decision before it becomes a "radical" decision?"

It's a matter of kind vs matter of degree distinction.

For instance, the 16th amendment guarantees the right to a jury trial in "all" criminal prosecutions. "All" is a binary concept, it's either "all", or it isn't. So's "criminal", there are only two kinds of cases, criminal and civil. So when the Supreme court rules that you don't have the right to a jury trial in criminal trials where the potential penalty per charge is less than a year, so that they can hit you with a hundred counts, and put you away for 36400 days, most of a century, without the case ever seeing a jury, that's radically wrong. Not just wrong as a matter of degree. The right to jury trial has a constitutional cutoff for civil cases, $20. NOT for criminal cases. "All" is not one of those words with wiggle room.

I'll be honest, I don't have a lot of respect for living constitutionalists. They're of a piece with the gold fringers and the income tax protesters when it comes to intellectual integrity, the only difference being who they do their BS rationalizing on behalf of, the citizen or the government. The only reason they get treated seriously is that it's in the government's interest that these BS rationalizations get accepted, so you've got to accept them to get job as a judge.
 

I could not get out of my mind all night our resident LLB*'s response to CTS on the meaning of the Second Amendment at 5:56 PM that begins:

"None of this is that difficult."

Then it dawned on me, at dawn. Who remembers the American Bar Association "Nutshell Series" on various legal subjects? Perhaps our resident LLB*'s response to CTS might be adopted as part of the ABA's "Nutshell Series." Or perhaps Jack, Sandy, et al will include our resident LLB*'s response when they update their casebook on ConLaw to train future generations of constitutional scholars.

Just imagine, after 217 years following ratification of the Bill of Rights, resulting in last year's Heller decision 5-4 that had the benefit of 71 briefs, with all the caselaw and scholarly articles and books on the Second Amendment in between, it is here, at Balkinization, that we learn:

"None of this is that difficult."

The ABA might be embarrassed that a humble DUI attorney (self-described) from Colorado came up with this response but that should not dispel its adoption (subject to copyright) in its "Nutshell Series" perhaps in modified form: "Gun-Nut-shell Series."

*Little Lisa's bro
 

Now, let's contrast this to the seventh amendment, which guarantees jury trial in civil cases "where the value in controversy shall exceed twenty dollars,".

IMO, the right approach would be to say, "A dollar was a unit of weight, 1/20th of an ounce, 20 dollars was understood at the time to mean one ounce of gold, so you have a right to a civil jury if the value of more than one ounce of gold is at stake." Defensible would be to analyze inflation since then, and put the threshold at what one ounce of gold then was worth in terms of other commodities today. Even further off would be to say, "It's the government's own fault it inflated the currency, $20 it is, and shall remain!"

Radically wrong would be to throw out the $20 number entirely, and pull a value out of the court's collective ass. Or, if the country changed the name of it's currency, to say that jury trials in civil cases were no longer guaranteed.

Refusing to analyze what non-monetary damages are worth, and apply that $20 threshold, is abusive, too, IMO, but it's got enough textual basis to fall just short of radically wrong.
 

This comment has been removed by the author.
 

Meanwhile ...

Sanford Levinson, a law professor at the University of Texas, said he would be surprised if the Supreme Court accepted these gun cases, because some of the conservative justices on the court had scoffed at incorporation arguments in the past and might not want to set a precedent.

Gun Rulings Open Way to Supreme Court Review
 

This comment has been removed by the author.
 

Brett ... You mean 6A ... this isn't "originalism," it is literal textualism. It is akin to taking the 1A totally literally, though you simply can't, e.g., "no" allows exceptions for children or when the activity harms the public.

BTW, "crime" in this context was understood in its traditional sense as a "felony." The SC didn't just make it up. It was a traditionally understanding.

But, you know better than everyone else, who repeatedly show not only what has always been done, but explain how it's democratic, sensible, practical, and darn even what the Framers probably wanted all along. You are the one with intellectual integrity.

The one repeatedly shown to be wrong and impracticable. It's not good to throw stones in glasshouses. IMHO.

---

CTS ... many "originalists" would not accept abortion is covered by the C. now, but that is a telling example. Viability is a guideline that was established as a practical dividing line for a larger right.

There is a lot of play in the joints. It's akin to 'cruel and unusual' or 'reasonable' where medical advances can change applications, but basic constitutional rules stay in place.
 

My rejoinder to Brett's:

"I'll be honest, I don't have a lot of respect for living constitutionalists. "

is a slight variation on Mr. Jinks' (of Pixie & Dixie fame) refrain:

"I hate Meese's to pieces!"

in recognition of the "Father" of the current "originalism" movement.

Actually, I might share Brett's variation on constitutional misogyny if he provided a definition for "living constitutionalists." I'll concede that I cannot define "originalism" in its various evolving forms.

By the Bybee, where in the Constitution is there a specific provision for its interpretation? Remember, there is no specific provision in the Constitution for "judicial review" which my ConLaw Prof. Thomas Reed Powell pointed out:

"Those of you who recall how Topsy characterized her own genetic process may not be offended if I find a similarity between her origin and that of what we know as 'judicial review.' Such review of acts of a coordinate legislative body or executive authority was not conceived in terms in any of the early, post-1776 state constitutions, in the Articles of Confederation, or in the Constitution of the United States. Like Topsy, it just 'growed.'"

at the beginning of his 1956 "Vagaries and Varieties in Constitutional Interpretation" James S. Carpentier Lectures at Columbia.
 

I'll be honest, I don't have a lot of respect for living constitutionalists.

# posted by Brett : 6:23 AM



As near as I can tell, that hasn't stopped you from joining them.
 

I was not familiar with the "Topsy" reference so googled it. At first, this was accessed.

Later, I see there was a 19th Century elephant by that name. But, I see the reference is to literature. See here.

The discussion in that last link is actually somewhat on point.
 

CTS:

So, Bart: None of this is that difficult. I realize you did not intend for that to be read as patronizing. However, the fact is that I know perfectly well that much of 'this' is very, very difficult - if by 'difficult' one means hotly contested. And, of course, if 'this' includes not only 2nd A. disputes but also the whole of legal hermeneutics, well, take it from me: it's plenty difficult.

The fact that today's interest groups are willing to pay lawyers tens of thousands of dollars to write hundreds of pages attempting to find ways around basic grammar in order to rewrite the Constitution to include their preferred policies does not make the Second Amendment or any other provision of the Constitution difficult to read.

Heller would have been a unanimous decision back in 1800 and the decision would have gone further protecting the right than did Scalia.
 

Our resident LLB* proves with this:

"Heller would have been a unanimous decision back in 1800 and the decision would have gone further protecting the right than did Scalia."

that even his hindsight is blind.

*Little Lisa's bro
 

Heller would have been a unanimous decision back in 1800 and the decision would have gone further protecting the right than did Scalia.

# posted by Bart DePalma : 9:24 AM



I'm sure an 1800 court would have protected the right to carry muskets. The idea that it would have protected the right to carry modern firearms is completely absurd.
 

Brett:

Refusing to analyze what non-monetary damages are worth, and apply that $20 threshold, is abusive, too, IMO, but it's got enough textual basis to fall just short of radically wrong.

Damages tend to get monetized (particularly since in many instances, there is no way to "made whole", such as with physical injuries). If you're asking for non-monetary relief (say, equitable relief in the form of specific performance), you're talking courts of equity, not of "common law", and thus no jury trial is available.

Cheers,
 

I'll be honest, I don't have a lot of respect for living constitutionalists. They're of a piece with the gold fringers and the income tax protesters when it comes to intellectual integrity, the only difference being who they do their BS rationalizing on behalf of, the citizen or the government. The only reason they get treated seriously is that it's in the government's interest that these BS rationalizations get accepted, so you've got to accept them to get job as a judge.

The sad thing is, it's originalists themselves who are intellectually dishonest. The only reason they're treated with at all is that a political party finds them useful idiots in advancing its partisan agenda. There's no intellectual content to originalism, just partisan thuggery.
 

Who will speak for the " . . . gold fringers . . . ."? Might their interests be flagging?
 

What IS a 'gold-fringer'???
 

They're the idiots who believe that there's some kind of legal significance to whether or not the flag in the courtroom has a good fringe on it. They've got this convoluted reasoning to back them up, which makes approximately as much sense as the reasoning behind claiming that the power to regulate commerce among the several states is identical to the power to regulate non-commerce within them.
 

Before the "Fat Lady" sings on this thread, the battle is not just between originalism and living constitutionalism in interpreting the Constitution (however these terms may be defined or evolve). Consider hermeneutics.

Back in the early 1950s in either my first or second year of law school, while rummaging at a Morgan Memorial Store in Boston, I came across Francis Lieber's "Legal and Political Hermeneutics on Principles of Interpretation and Construction in Law and Politics with Remarks on Precedents and Authorities," Third Edition, 1880. (The Second Edition had been published in 1839.) I had no idea what hermeneutics was at the time but bought the book, perhaps because it came from the library of the Boston law firm "Brandeis, Dunbar & Nutter," as I did know of and was impressed by Justice Brandeis. I would occasionally read portions of the book from time to time during law school and in the course of my law practice that began in 1954.

Jumping ahead to the late 1990s in my semi-retirement from the practice, I audited (as a senior citizen at a low charge) a college course with the title (drum roll, please) Hermeneutics, offered for philosophy and religious studies students. The focus of that course was Hans-Georg Gadamer's "Truth and Method." There were also texts of other philosophers on hermeneutics assigned, but Gadamer was the man. (He died a couple of years later at the age of 101 or 102, which might suggest that hermeneutics is good for one's health.) This led me to search the Internet where I learned of Legal Hermeneutics and devoured a number of articles on the subject, mostly written by attorneys with philosophy backgrounds. In the course of this I learned about Lieber's interesting background. Cardozo Law Review offered a symposium on Legal Hermeneutics AND republished Lieber's Third Edition in Vol. 16, No. 6, April 1995. In 2000, Chicago Kent Law Review presented a symposium, Vol. 76, No. 2, 2000.

Now I'm not trying to proselytize hermeneutics. Rather, there are other perspectives on constitutional interpretation that may not fit within the definitions (whatever they are) of originalism and living constitutionalism. And the word "hate" should have no place in the debate on the search for the Holy Grail of Constitutional Interpretation. Ach du Lieber!
 

Justice Souter's dissent in the DNA case today provides an interesting window into the proper way to interpret the Constitution's broad and open phrases, one that might interest CTS in particular given its respect to changing understanding in fields such as medicine and so forth.
 

Joe:

The Due Process Clause is an invitation to the legislature and court to set procedural rules for the denial of life, liberty and property. There is nothing much to interpret and no real textual limits apart from the rule should be procedural and not substantive.
 

Thanks, Joe. (Thanks, Brett, too. But, wow!)
 

FIAT = "Fix It Again, Tony!"
 

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