Balkinization  

Sunday, November 22, 2009

Should Sotomayor be a Neutral Umpire?

Barry Friedman

During her confirmation hearings Justice Sonia Sotmayor insisted that the law decides cases, not a justice’s background or ideology. Linda Greenhouse recently expressed hope that Sotomayor will abandon that line on the Court. But why? What could be more instructive than watching Supreme Court justices reaching opposing results while claiming to apply the same law neutrally?

Writing this weekend in The Opinionator, the New York Times’ on-line adjunct, Linda Greenhouse noted the superficial affinity between Sotomayor’s and Chief Justice John Roberts’ views of the law. Roberts in his confirmation hearings hewed to the neutral law and neutral judge line, famously saying that “Judges are like umpires. Umpires don’t make the rules; they apply them.” After the flap about her prior remarks that a judge’s background influenced decisions, in her confirmation hearings Sotomayor also took the neutrality line on law and judging. She appeared to disavow the very characteristic President Obama identified as important to a good justice: empathy.


But Greenhouse looks at a recent ruling of Sotomayor’s, and expresses the hope that “she does understand, after all, that something beyond an abstraction called “the law” determines how judges behave.” The basis for Greenhouse’s hope was that Sotomayor signed on to a “statement” Justice John Paul Stevens wrote in the decision to deny a stay of execution to John Allen Muhammed, the D.C. area sniper recently executed by the State of Virginia. In that statement, Stevens complained about the practice of setting execution dates for inmates before their appeals to the Supreme Court had run their course.

I’m not sure why Greenhouse wants Sotomayor to acknowledge that “something beyond an abstraction called ‘the law’ determines how judges behave.” Perhaps Greenhouse believes this is true – and if so then she is surely right, at least with regard to salient tightly-balanced Supreme Court cases. (On the other hand, one might hope for the sake of the rule of law that Greenhouse is not right in countless cases faced by lower court judges.) But wanting Sotomayor to acknowledge the fact is an entirely different matter. It is less clear why Greenhouse wants this.

From the baloney fed the public by Supreme Court nominees at their confirmation hearings, one can only assume that the public itself wants to believe “an abstraction called ‘the law’” decides Supreme Court cases. If not, why would the nominees take this line so devoutly? Perhaps Senators who must do the confirming believe it, and don’t care what their constituents think, but this story is a little hard to buy. One must assume nominees say this because it resonates with the public.

At the same time, one is wise to recall Robert Bork’s defeat in just such circumstances. As I make clear in my chapter 7 of my book, The Will of the People, Bork’s nomination faltered on the fact that the public cares about the results of Supreme Court decisions, not the methodology by which they are reached.

Given the fact that so many conservative results lately are rendered under the supposed neutrality of the law, what Greenhouse really might have hoped is that Sotomayor would hew to the neutrality line while regularly voting the opposite way of the Chief Justice. Imagine that: Two Justices, each claiming fidelity to the same neutral and dispositive law, reaching wildly-differing outcomes. How could that be?

Now, that would be something to think about.


Comments:

I don't know what special signal her joining in Stevens' statement is, especially since (arguably) it can be that she thinks the law commands the result he supports.

I found CJ Roberts stating this in respect to giving extra fees to a lawyer's arguably extraspecial efforts in a challenge of a foster system's wrongdoing more notable:

“The results that are obtained are presumably the results that are dictated or commanded or required under the law.”

As Greenhouse notes, this is why Roberts got those fees -- the law over the lawyer, sure thing.

Likewise, Alito defending this statement by Sotomayor:

“My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.”

Hey, I would defend that too, but not sure conservatives would appreciate why. Her "personal and professional experiences" matter, apparently. They help her listen and understand "the law," which might command the result, but is still influenced by such experiences.

That was a major point of that controversial speech for which her critics cherry picked one or two phrases. As to two judges neutrally obtaining different results, one can just be wrong, particularly given one death penalty case.
 

Given the fact that so many conservative results lately are rendered under the supposed neutrality of the law, what Greenhouse really might have hoped is that Sotomayor would hew to the neutrality line while regularly voting the opposite way of the Chief Justice. Imagine that: Two Justices, each claiming fidelity to the same neutral and dispositive law, reaching wildly-differing outcomes. How could that be? Now, that would be something to think about.

Apart from open invitations to judicial rule making like the DPC, so long as words have settled meanings, it is impossible for two justices reading the same words to reach wildly-differing outcomes. At most, one can honestly arrive at differing shades of meaning which could swing only the closest of cases.

Sotomayor's promise of fidelity to the law will likely be first exposed as a politically convenient lie when she rules against 14th Amendment incorporation of the 2d Amendment by ignoring the original meaning of the 14th Amendment and cites to some hoary Reconstruction Era precedent.
 

so long as words have settled meanings

But they don't. At least not all of them.
 

But some of them do. The problem with this "The law is (hopelessly) ambiguous!" defense of just making things up as you go along, is that it's always defended on the basis of the more ambiguous passages, (Ok, what IS cruel and unusual?) and then applied to some of the clearest passages. (The interstate commerce clause, for instance.) It's something of a bait and switch in that respect.
 

" ... Bork’s nomination faltered on the fact that the public cares about the results of Supreme Court decisions, not the methodology by which they are reached."

But methodology cannot be ignored even if the public may not care (which I do not believe, because the public responds to sound bites). While not specifically mentioned in the post and preceding comments, methodology is at the forefront, which means originalism, however defined, versus living constitutionalism, however defined. The Fall 2009 issue of Constitutional Commentary has as a lead article "Originalism's Misplaced Fidelity: 'Original" Meaning is Not Objective" by Tara Smith. (I haven't checked to see if this article is available via SSRN.) Consider that both the majority and minority decisions in Heller focused upon history and originalism and came up with different results.
 

applied to some of the clearest passages. (The interstate commerce clause, for instance)

I have read debates you had with people here who know the law and researched it more than you and I and who come down on the issue in different ways. Doesn't sound so "clear" to me. Your assurance you are right doesn't change this.

And, so many don't admit the likes of the C&U is somewhat murky. The 'slippery slope' works in both directions.

Shag's reference reminds me that in fact Linda Greenhouse herself wrote a law review article on Breyer's dissent, one that claimed to be based in part on history.
 

so long as words have settled meanings

But they don't. At least not all of them.


It's rare for words to have precise meanings:

"A rule that would limit the determination of the meaning of a written instrument to its four-corners merely because it seems to the court to be clear and unambiguous, would either deny the relevance of the intention of the parties or presuppose a degree of verbal precision and stability our language has not attained.

Some courts have expressed the opinion that contractual obligations are created by the mere use of certain words, whether or not there was any intention to incur such obligations. Under this view, contractual obligations flow, not from the intention of the parties but from the fact that they used certain magic words. Evidence of the parties' intention therefore becomes irrelevant.

In this state, however, the intention of the parties as expressed in the contract is the source of contractual rights and duties. A court must ascertain and give effect to this intention by determining what the parties meant by the words they used. Accordingly, the exclusion of relevant, extrinsic, evidence to explain the meaning of a written instrument could be justified only if it were feasible to determine the meaning the parties gave to the words from the instrument alone.

If words had absolute and constant referents, it might be possible to discover contractual intention in the words themselves and in the manner in which they were arranged. Words, however, do not have absolute and constant referents. "A word is a symbol of thought but has no arbitrary and fixed meaning like a symbol of algebra or chemistry, ..." (Pearson v. State Social Welfare Board (1960) 54 Cal.2d 184, 195 [5 Cal.Rptr. 553, 353 P.2d 33].) The meaning of particular words or groups of words varies with the "... verbal context and surrounding circumstances and purposes in view of the linguistic education and experience of their users and their hearers or readers (not excluding judges). ... A word has no meaning apart from these factors; much less does it have an objective meaning, one true meaning." (Corbin, The Interpretation of Words and the Parol Evidence Rule (1965) 50 Cornell L.Q. 161, 187.) Accordingly, the meaning of a writing "... can only be found by interpretation in the light of all the circumstances that reveal the sense in which the writer used the words. The exclusion of parol evidence regarding such circumstances merely because the words do not appear ambiguous to the reader can easily lead to the attribution to a written instrument of a meaning that was never intended. [Citations omitted.]" (Universal Sales Corp. v. California Press Mfg. Co., supra, 20 Cal.2d 751, 776 (concurring opinion); see also, e.g., Garden State Plaza Corp. v. S. S. Kresge Co. (1963) 78 N.J. Super. 485 [189 A.2d 448, 454]; Hurst v. W. J. Lake & Co. (1932) 141 Ore. 306, 310 [16 P.2d 627, 629, 89 A.L.R. 1222]; 3 Corbin on Contracts (1960 ed.) sec. 579, pp. 412-431; Ogden and Richards, The Meaning of Meaning, op.cit supra 15; Ullmann, The Principles of Semantics, supra, 61; McBaine, The Rule Against Disturbing Plain Meaning of Writings (1943) 31 Cal.L.Rev. 145.)" Pacific Gas & Electric v. G. W. Thomas Drayage, 69 Cal. 2d 33 (1968).

And that's before we ever get to the necessary and proper clause, which Brett always forgets.
 

bart:

personally, i hope the court incorporates the 2nd amendment. but i don't see why choosing to follow what you concede is long established precedent would constitute some sort of unprincipled activism.
 

Dilan:

Upholding erroneous past activism is no less activist. A Supreme Court justice swears an oath to uphold the Constitution, not prior precedent. If the prior precedent is contrary to the Constitution, every justice has a sworn duty to reverse it.
 

Bart:

Under your theory, every justice who, for instance, follows Mapp v. Ohio and rules that because there was a Fourth Amendment violation in a case, the state should have excluded the evidence is being an activist, even though there is almost 5 decades of continuous precedent supporting that and not one of the court's members is calling for it to be overturned.

Look, this points out the problems with the term "activist". I have no problem with the concept that sometimes judges ignore the law and that they shouldn't-- and if activist is used when you think that occurs, that's fine. But in a system with stare decisis, it can't be the case that every time a justice applies an incorrect precedent, he or she is being an activist. By that definition, every single Supreme Court justice in history is an activist.
 

Dilan said...

Bart: Under your theory, every justice who, for instance, follows Mapp v. Ohio and rules that because there was a Fourth Amendment violation in a case, the state should have excluded the evidence is being an activist, even though there is almost 5 decades of continuous precedent supporting that and not one of the court's members is calling for it to be overturned.

Here is a better example which skewers the conservative justices. Much of the precedent which permitted New Deal legislation allows powers far beyond any rational reading of the Commerce Clause, is contrary to the Constitution and is thus "activist." Scalia's ongoing affirmation of this unconstitutional precedent based upon stare decisis makes him just as activist as the justices who created that precedent.

But in a system with stare decisis, it can't be the case that every time a justice applies an incorrect precedent, he or she is being an activist.

Why? Our Constitution is not a common law document like the English Constitution. The drafters meant it to bind the judiciary as it does the elected branches. Thus, stare decisis can only be applied to reasonable interpretations of the Constitution and has no place as a tool to defend unconstitutional decisions.
 

Bart:

That's a pretty radical position. I realize that people have grave disagreements about how much reliance certain precedents (e.g., Roe v. Wade) have engendered, but surely there is room for the courts to say, essentially, that a particular interpretation of the constitution has engendered so much reliance and it would disrupt society so much that it isn't worth it to overturn it, isn't there?

For instance, I don't think much of the Supreme Court's jurisprudence on copyrights, which has permitted massive congressionally-mandated extensions even though Article I Section 8 says clearly that copyrights shall be for limited times and ties the power to promoting the progress of science and the useful arts, which these ultra-long copyrights don't do.

But nonetheless, I could see a real problem with the Court suddenly holding (as I would argue is the correct interpretation of the Copyright Clause) that only terms that are reasonably close to the 28 years that were permitted by the framers would be constitutional. Because so many people have paid good money to license copyrights that are older than 28 years old. I don't see a problem with invalidating future extensions, but I do see a big one with stripping lots of old, valuable works of their copyrights.

Now, is that an "activist" position? I don't see how it can be. The Constitution may MEAN "something close to 28 years", but it really is possible for society to get so invested in an incorrect meaning that going back to the original understanding would be more trouble than it is worth.

Of course, sometimes it is worth it despite being a lot of trouble (Brown v. Board of Education). But there's value in being cautious in situations where there's a lot riding on the current interpretation and there isn't the gigantic moral claim for reversing it that was present in Brown.
 

I disagree with Brett's view on these matters, but I cannot believe he really thinks that single words have precise meanings absent context.

Dough? Pipe? Signature? Box?

We cannot even know which part of speech is intended without the context a a clause.

Beyond that, to borrow from H.L.A. Hart's famous example, how can we claim there is a single, precise meaning to a term such as 'vehicle' - in context - in a staute?

There are easy cases, and there are hard cases. The Supremes, in particular, seldom get easy ones.
 

CTS, I have a hard time believing you actually think that some really well educated and smart people, who were trying to be understood, none the less perpetrated an irredeemably mass of ambiguity. Which it mysteriously took the better part of two centuries to notice was ambiguous.
 

Of course it was intentionally ambiguous, Brett!!! They needed a freakin' supermajority. My goodness, it never ceases to amaze me how people act like the Constitution was meant to be some kind of airtight contract with every term defined and only one possible interpretation.
 

Dilan said...

Bart: That's a pretty radical position. I realize that people have grave disagreements about how much reliance certain precedents (e.g., Roe v. Wade) have engendered, but surely there is room for the courts to say, essentially, that a particular interpretation of the constitution has engendered so much reliance and it would disrupt society so much that it isn't worth it to overturn it, isn't there?

I would counter that reversing an unconstitutional decision allowing a massive expansion of government power would be no more radical or disruptive than allowing the expansion of power in the first instance.
 

You can argue it, Bart, but it wouldn't make it right. Take my copyright example. Can't you possibly see someone saying "I think this copyright jurisprudence is wrong, correcting the error isn't worth invalidating all these license agreements that people have paid big money for"?

Your position only makes sense if the ONLY important value in all of adjudication is interpreting the text correctly, and no other value matters at all. But that can't be right, can it?
 

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What does originalism tell us about "discoveries"? The Supreme Court will soon decide a case that may address what was the publicly understood meaning of "discoveries" back in 1789. Or does the patent/copyright clause suggest changes over time as times change?
 

Dilan:

No one is seriously arguing over the enumerated powers of the federal government such as the Copyright Clause, so perhaps we should be discussing the effects of one of the Court's approvals of an unconstitutional extension of government power like permitting bureaucracies to legislate and adjudicate.

Reversing this awful precedent and returning the power to legislate and adjudicate to Congress and the courts is unlikely to cause nearly as much disruption to the citizenry as the ongoing onslaught of regulations which never would have been enacted by our accountable elected officials. The only real disruption would be to the bureaucracies.
 

Dilan's citation of the copyrights field brings to mind the principle that there are shades of bad.

For instance, Eldred v. Ashcroft can be attacked on more than one ground. But, longstanding precedent was not so easily determinative in expanding existing copyrights. See, Stevens dissent.

Some are upset when courts do not just clear away all the brush or defend expansions by referencing precedents that don't go that far. The middle ground at times is deemed arbitrary. But, sometimes it is a reasonable path to take.

After all, loads of constitutional rules draw lines in the sand.
 

Reversing this awful precedent and returning the power to legislate and adjudicate to Congress and the courts is unlikely to cause nearly as much disruption to the citizenry as the ongoing onslaught of regulations which never would have been enacted by our accountable elected officials. The only real disruption would be to the bureaucracies.

Again, this just can't be right. Let's say, for instance, that the Court reverses field and holds the Federal Reserve unconstitutional. (If one were to construe the Appointments Clause and the separation of powers strictly, one could certainly come to that conclusion.)

Now, what happens to all those banking regulations that the Fed has imposed? What happens to all the securities that the FOMC bought? What happens to all the money that banks have deposited in the Federal Reserve Banks in response to reserve requirements? What happens to the reserve requirements themselves? What happens to all the loans that have been made to banks at the discount rate or the federal funds rate? What happens to all the rules regarding check processing that the Fed administers?

Again, you can argue that getting the Appointments Clause right is so important that it is worth even a massive upheaval. But you can't deny that there would be a massive upheaval. Basically, a case like Brown stands for the proposition that sometimes getting the Constitution right is so important that it's worth taking a step that will lead even to violence and massive resistance. But is every constitutional provision worth that?

I don't think you are grappling with the issue, Bart. Stare decisis didn't arise out of thin air.
 

Google 'Medicare Part D Senate Roll Call', a vote involving the committment of $900B without any contemporaneous budgeting, and you will see among those voting for the legislation, Senators Ben Nelson, Mary Landrieau, and Lincoln of Arkansas.

Shheeesh...
 

Dilan said...

BD: Reversing this awful precedent and returning the power to legislate and adjudicate to Congress and the courts is unlikely to cause nearly as much disruption to the citizenry as the ongoing onslaught of regulations which never would have been enacted by our accountable elected officials. The only real disruption would be to the bureaucracies.

Again, this just can't be right. Let's say, for instance, that the Court reverses field and holds the Federal Reserve unconstitutional. (If one were to construe the Appointments Clause and the separation of powers strictly, one could certainly come to that conclusion.)


The independence of the Fed board from the President is very likely unconstitutional, but a national bank is not. However, I will play along with your hypo:

Now, what happens to all those banking regulations that the Fed has imposed?

Congress may enact them as legislation or allow them to lapse.

What happens to all the securities that the FOMC bought?

Auction them off and the proceeds go to the treasury.

What happens to all the money that banks have deposited in the Federal Reserve Banks in response to reserve requirements? What happens to the reserve requirements themselves?

If Congress does not enact these requirements as legislation, the Fed would return the money to the banks to hold.

What happens to all the loans that have been made to banks at the discount rate or the federal funds rate?

They would still be repaid under the terms of the loan agreements.

What happens to all the rules regarding check processing that the Fed administers?

Congress enacts them into law or the banks set their own rules.

But you can't deny that there would be a massive upheaval.

Yes I do. Nothing you have postulated would harm the banks and nothing prevents Congress from enacting rules suggested by the national bank into law.

On the other hand, yanking the Feds unconstitutional chain would prevent abuses like:

1. The Boston Fed leaning on mortgage lenders to gut underwriting standards to meet the Fed's interpretation of CRA guidelines, and

2. Chairman Paulson without legal authority dictatorially ordering the banks to accept TARP money in exchange for preferred stock and common stock and under the threat that banking regulators would compel them to do so through regulations.

I don't think you are grappling with the issue, Bart. Stare decisis didn't arise out of thin air.

Stare decisis is a product of our common law that is frequently misused when applied to a written Constitution.
 

So now the Supreme Court declares the Fed unconstitutional, and a bill is quickly prepared in Congress to enact banking regulations in the Fed's place.

1. In the meantime, are the Fed's regulations still binding? Or is the banking system suddenly unregulated? And if it's the latter, won't there be a financial meltdown before Congress can act, per Gresham's Law?

2. Congress enacting banking regulations is going to be a mess, with lobbying, filibuster threats, ideological gamesmanship, partisanship and obstruction, and everything else. It's hard to believe that Congress could produce anything in that environment, and it's even harder to believe that anything Congress produces is going to inspire the confidence necessary to keep the banking system from melting down.

Of course, you could avoid this by doing what Warren did in Brown II, essentially allowing the integration process to proceed very slowly. But I would argue that this sort of prophylaxis is subject to the exact same objection as stare decisis, i.e., that if you allow it, you are ignoring the text of the constitution in pursuit of protecting societal reliance interests. I don't see how one can be proper if the other is improper.

Look, Bart, there's a lively debate about how appropriate stare decisis is in constitutional decisionmaking. But you can't wish the problem away. Transitioning to the constitutional interpretations that you favor would impose crushing transition costs, and you simply are acting oblivious to them.
 

Orin Kerr has another nice example of why there has to be some notion of stare decisis in constitutional interpretation:

http://volokh.com/2009/11/24/originalism-and-the-sixth-amendment-right-to-assistance-of-counsel/
 

Dilan:

"Orin Kerr has another nice example of why there has to be some notion of stare decisis in constitutional interpretation:"

I agree that this is a "nice example." But the comments are not so nice.
 

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Dilan said...

So now the Supreme Court declares the Fed unconstitutional, and a bill is quickly prepared in Congress to enact banking regulations in the Fed's place.

1. In the meantime, are the Fed's regulations still binding?


No.

Or is the banking system suddenly unregulated?

Yes.

And if it's the latter, won't there be a financial meltdown before Congress can act, per Gresham's Law?

Of course not. Why would you think the banking system would suddenly melt down?

2. Congress enacting banking regulations is going to be a mess, with lobbying, filibuster threats, ideological gamesmanship, partisanship and obstruction, and everything else. It's hard to believe that Congress could produce anything in that environment, and it's even harder to believe that anything Congress produces is going to inspire the confidence necessary to keep the banking system from melting down.

What will almost certainly happen is that Congress will enact the current regulatory system into law and then address changes in the future. As to new regulations, the Fed is free to recommend legislation to Congress and testify on its behalf.
 

Bart, you have an amazing combination of (1) little idea of how much the banking and finance systems rely on federal reserve regulations, and (2) way too much confidence in Congress' ability to quickly respond to the invalidation of minute, detailed, and complex regulations on which huge fortunes of big-time political players stand or fall.

Basically, what you prove is that it is possible to blithely condemn stare decisis in constitutional decisionmaking as long as one keeps onesself totally oblivious to the actual consequences if we eliminated it.
 

Shag,

I agree that this is a "nice example." But the comments are not so nice.

It takes a strong stomach to wade through the typical comments at Volokh in order to find the gems. But gems there are. (Thanks to people like Dilan, Mark Field and others.)
 

Dilan:

Quite to the contrary, you vastly overestimate the salutary effects of banking regulation. Regulation can cause as well as prevent great damage. For example, the Fed was a major player in the home mortgage meltdown by abusing its power in pushing banks to abandon decades old private sector underwriting standards to socialize the home ownership market.

Tellingly, you did not cite a single bank regulation whose temporary suspension until Congress can act would somehow cause a "meltdown" of the financial system.

As for Congress, it is very simple to enact a two page bill incorporating present banking regulations into law. Likewise, Congress can act very quickly when the issue addresses a perceived crisis such as the legislation authorizing TARP. Congress would enact a bill restoring the status ante with banking regulations in 2-3 weeks.
 

Ah, yes, Mark. "Some idiot line from Traynor," to quote Kozinski.
 

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Kozinski had a far better line about this case: "Yes, Virginia, there is a parol evidence rule."

Traynor was, and remains, California's greatest justice: "Traynor has generally been viewed by the American legal community as the single greatest judge in the history of the California judiciary, and one of the greatest judges in the history of the United States. His obituary in the New York Times noted that 'Traynor was often called one of the greatest judicial talents never to sit on the United States Supreme Court.'" Cite.

Kozinski's snark is roughly as persuasive as if he had said it about Learned Hand.

The odd thing about your quote from Kozinski is that Traynor (aside from being right according to any linguist or philosopher) was actually quoting Corbin, whose treatise on contracts is surely one of the most influential of the 20th Century.
 

Bart:

I'm not going to go into detail, because you simply don't know anything about banking regulation. But, for instance, bank reserve ratios (which ensure that banks have enough cash to prevent runs), and the facilitation of lending between banks which prevents bank runs due to temporary insolvency and the setting of the discount and federal funds rates are two examples of things that the Fed does by administrative mandate that, if they were even suspended for a few hours, would cause the entire banking system to collapse (because all it takes is a couple of runs to start a panic).

The only way one can hold your position and be both honest and informed would be to say that getting the literal linguistic interpretation of the Constitution right is so important that it outweighs even a complete collapse of the world economy, causing a second Great Depression.

And anyone who believes that is certifiably insane.
 

Kozinski had a far better line about this case: "Yes, Virginia, there is a parol evidence rule."

That was humorous, yes, but it didn't directly address the merits of Traynor's argument. Kozinski's best line was in Trident Center, where he said, "Be that as it may. While we have our doubts about the wisdom of Pacific Gas, we have no difficulty understanding its meaning, even without extrinsic evidence to guide us," thus providing the simplest refutation of a silly argument since Samuel Johnson's "Thus I refute thee."

Traynor was, and remains, California's greatest justice: "Traynor has generally been viewed by the American legal community as the single greatest judge in the history of the California judiciary, and one of the greatest judges in the history of the United States. His obituary in the New York Times noted that 'Traynor was often called one of the greatest judicial talents never to sit on the United States Supreme Court.'"

...by people who like his substantive rulings, whatever their actual legal merit. There are people who think "great judges" are ones who make the most new law. Or who endorse lawyer-empowering rules that say, "Doesn't matter what the parties actually said; lawyers are always free to introduce new evidence to reinterpret it."

The odd thing about your quote from Kozinski is that Traynor (aside from being right according to any linguist or philosopher) was actually quoting Corbin, whose treatise on contracts is surely one of the most influential of the 20th Century.

And yet, other states have no problem with a parol evidence rule.
 

"Be that as it may. While we have our doubts about the wisdom of Pacific Gas, we have no difficulty understanding its meaning, even without extrinsic evidence to guide us," thus providing the simplest refutation of a silly argument since Samuel Johnson's "Thus I refute thee."

All this proves is that Kozinski doesn't even understand the opinion. And if you think he "refuted" it, you don't either.

...by people who like his substantive rulings, whatever their actual legal merit.

The actual source of the quote was Lawrence Friedman, who is the finest legal historian of at least the last half century.

And yet, other states have no problem with a parol evidence rule.

Those states evidently value certitude over accuracy.
 

And yet, other states have no problem with a parol evidence rule.

We don't have any problem with it in California. I work on a fair number of contract cases and the parol evidence rule works just fine. The Thomas Drayage case simply allows parties to introduce the evidence preliminarily to show that there might actually be an ambiguity. But if no ambiguity is shown, you don't get any further.

I get the feeling that the reality is precisely the contrary of what David Nieperont says. The vast, vast majority of legal scholars think Traynor is a great justice (not because he made so much "new law" but because his reasoning was brilliant), but some right-wing extremists who fetishize the plain meaning rule and don't give a crap about screwing up the law and screwing up people's lives don't like that Traynor so brilliantly pawned them.

And let's be very clear here-- anyone who thinks you should force contracting parties to live with some artificial interpretation of a contract that they never intended rather than allowing them to show what they actually meant is someone who doesn't have any conception of how the law actually works and what its purposes are.
 

And yet, other states have no problem with a parol evidence rule.

Those states evidently value certitude over accuracy.


Not at all. They just define a contract as the objective manifestation of the parties, not some post-hoc slippery subjective claim of "intent." (Has nobody read Williston?) If you say "No," allowing you to produce evidence that you really meant "Yes" is very lawyer-empowering, but not very helpful for actual contracting parties (ex ante).
 

Bart:

I'm not going to go into detail, because you simply don't know anything about banking regulation. But, for instance, bank reserve ratios (which ensure that banks have enough cash to prevent runs), and the facilitation of lending between banks which prevents bank runs due to temporary insolvency and the setting of the discount and federal funds rates are two examples of things that the Fed does by administrative mandate that, if they were even suspended for a few hours, would cause the entire banking system to collapse (because all it takes is a couple of runs to start a panic).

You might recall that I argued that a national bank was perfectly constitutional, but that bank legislating through regulations was not. the last two of your three examples (lending and setting interest rates) are examples of normal activities of a national bank and not unconstitutional regulations on bank activities.

Your argument that the suspension of regulations setting bank reserve ratios for the 2-3 weeks it would take Congress to constitutionally enact them into law is more than a little paranoid. What do you think the banks are going to do with their present reserves over 2-3 weeks? Go to Vegas?

Believe it or not, Anglo-American banking flourished rather nicely for the past few centuries without bank reserve ratio regulations. These regulations are meant to mitigate once in a generation bank runs. Our financial system will survive 2-3 weeks without them.
 

I think all the turkey must have affected your brain, David. Every single jurisdiction in the US -- every single one -- allows evidence from outside the contract to be used to interpret the words of the contract. The only differences involve the timing and extent of that evidence.

Even Protestant fundamentalists allow extrinsic evidence when it comes to interpreting the Bible. Nobody, certainly not Williston, lives in the fantasy universe of your last post.
 

I think all the turkey must have affected your brain, David. Every single jurisdiction in the US -- every single one -- allows evidence from outside the contract to be used to interpret the words of the contract.

Yes... if the contract is otherwise ambiguous. But they don't all allow contracting parties to create ambiguity where it doesn't otherwise exist by introducing outside evidence.


(That's why Dilan's comment about "fetish" is so bizarre; it's not me that is doggedly fixated on a single notion in all cases. Normal people agree that a contract is sometimes ambiguous, and therefore that outside evidence is sometimes appropriate (or even necessary.) It's Traynor (and you and Dilan) who argue that words are always ambiguous, that you can never really be sure what you agreed to by reading the contract, and therefore a party can always introduce outside evidence that yes actually means no.)
 

Yes... if the contract is otherwise ambiguous. But they don't all allow contracting parties to create ambiguity where it doesn't otherwise exist by introducing outside evidence.

Nice pejorative way to misstate CA law. It doesn't allow a party to "create" an ambiguity, it allows a party to show that there is an ambiguity. IOW, it allows evidence. Radical notion.
 

Believe it or not, Anglo-American banking flourished rather nicely for the past few centuries without bank reserve ratio regulations.

Bart, if your definition of "flourish" is "periodically went into the tank throwing the economy into the abyss and causing major panics", then yeah, it flourished.

But outside the lies that libertarians and conservatives constantly tell about the banking system, back in the real world, the banking system is totally dependent on regulations to prevent runs.

Thankfully even the Republican bankers like Greenspan know that your position is full of crap, Bart.
 

It's Traynor (and you and Dilan) who argue that words are always ambiguous, that you can never really be sure what you agreed to by reading the contract, and therefore a party can always introduce outside evidence that yes actually means no.

David, like Bart, you really don't know WHAT you are talking about.

In California, the party arguing an ambiguity gets one chance to go before the judge, NOT a jury, and argue that the parol evidence exposes an ambiguity. That's it. If they can't show the ambiguity with the parol evidence, the contract gets interpreted using its plain meaning.

That's all Thomas Drayage does, and it is correctly decided.
 

Yes... if the contract is otherwise ambiguous. But they don't all allow contracting parties to create ambiguity where it doesn't otherwise exist by introducing outside evidence.

Nice pejorative way to misstate CA law. It doesn't allow a party to "create" an ambiguity, it allows a party to show that there is an ambiguity. IOW, it allows evidence. Radical notion.


"Outside evidence" can't show that there's an ambiguity; ambiguousness (or lack thereof) is an inherent feature of the contract itself.

In other words, either the contract is ambiguous, or it isn't. if it is, then outside evidence isn't showing that there's ambiguity, but rather is showing how to interpret it. If it isn't, then outside evidence can't show that it is ambiguous; it can merely contradict the unambiguous language.

Unless, of course, one believes that words don't really mean anything.
 

David, like Bart, you really don't know WHAT you are talking about.

In California, the party arguing an ambiguity gets one chance to go before the judge, NOT a jury, and argue that the parol evidence exposes an ambiguity. That's it. If they can't show the ambiguity with the parol evidence, the contract gets interpreted using its plain meaning.


Dilan, WHAT I really don't know is how anything you said contradicted anything I've said. (Although your admission that there is, in fact, a "plain meaning" contradicts what was previously said by you, Mark, and Traynor.)
 

"Outside evidence" can't show that there's an ambiguity; ambiguousness (or lack thereof) is an inherent feature of the contract itself.

Now you're just assuming your conclusion. The meaning of words, including ambiguity, appears only in context. What Thomas Drayage does is permit a party to show context.

I'm waiting for your cite to a linguist who supports your (circular) argument.
 

David:

When Dilan get caught short on the facts, he simply says that the other party is stupid or ignorant.
 

Dilan:

Australia, Canada, Mexico, New Zealand, Sweden and the United Kingdom have no mandatory reserve ratio requirements and the Euro Zone has a 2% reserve requirement compared to the United States' 10%. The banks in countries without reserve requirements are not "melting down" and none of these countries has a greater history of bank runs than the United States.

I know that the idea of private citizens acting in a rational manner without government guidance is completely alien to a statist such as yourself, but it does indeed happen.
 

Australia, Canada, Mexico, New Zealand, Sweden and the United Kingdom have no mandatory reserve ratio requirements and the Euro Zone has a 2% reserve requirement compared to the United States' 10%. The banks in countries without reserve requirements are not "melting down" and none of these countries has a greater history of bank runs than the United States.

Bart, that's misleading. No industrialized country has anything close to free banking. Every bank in those countries is subject to intense regulation to ensure it doesn't melt down. And each of those countries' central banks use monetary policy to control the money supply, which imposes a de facto reserve requirement on banks.

It happens that the way we do it in this country is by giving the federal reserve regulatory authority to impose a reserve ratio. That isn't the only way to do it, but no matter how it is done it is essentially the same thing. Declare the Fed unconstitutional and there will be a bank panic because depositors will run on the bank based on media reports that the banks no longer have to maintain their money.

You can fantasize about free banking, but it doesn't work. And as I said, every serious conservative banking policy expert agrees with me and thinks your ideas are not only wrong, but extremely dangerous.

So we can't, and won't, declare the Fed unconstitutional. Because making constitutional interpretation aesthetically pleasing to know-nothing right-wing extremist is less important than having a central bank with full regulatory authority.
 

Now you're just assuming your conclusion. The meaning of words, including ambiguity, appears only in context.

Exactly right.

Contractual language: "Licensee shall have the exclusive right to distribute Wonder Widgets during the term of this license."

Extrinsic facts: at the time the agreement was entered into, there were 6 other licensees with similar contracts in other states. This licensee distributes exclusively in California. The fee paid by this licensee is commensurate with the value of an exclusive distributorship in California.

Now, licensee acquires a Nevada distribution corporation and sets up a capability in Nevada, and now argues that the agreement gives it exclusive distribution rights in Nevada as well.

The contractual language doesn't seem ambiguous out of context, but it looks like it is ambiguous in context, doesn't it?
 

I do not want to get in the middle of the Mark, David and Dilan discussion but I just finished reading Samuel Issacharoff's "Pragmatic Originalism?" available via SSRN at:

http://ssrn.com/abstract=1512742

that addresses Constitutional interpretation (in the form of originalism) with comparisons to contract law (including the parol evidence rule) that might interest them. It is a short 15 pages in length.

My interest is with Issacharoff's take on originalism. Here's an interesting portion on page 14:

"I do not believe myself to be the first to contemplate that originalism's true force may be its role in constraining 20th century constitutionalism rather than in implementing the constitutional vision of the 18th century. I add only that the diverse sources of originalist argument, as manifest in Heller and as carefully chronicled by Professor Maggs, lend weight to this argument."

My next task is to see if Prof. Maggs' article is available on the Internet. I am concerned that Heller may turn out to be the Dred Scott of the 21st century.
 

I hope all you folks enjoyed your Thanksgiving holiday.

It unsurprising to come back to find that poor dear Bart is still slaving over a hot keyboard to share his delusions on every possible subject.

On bank regulation, for what it is worth, please see this report: A year later, scale of UK bank bailout revealed. US$108 billion in emergency funding and the government ending up as an 84% shareholder in one big group and a 43% shareholder in another, does not exactly fill one with confidence - and Bart may rest assured that the reserve ratio requirements in the UK and throughout the EEA are going to be considerably increased in the very short term.
 

Bart wrote: "Why? Our Constitution is not a common law document like the English Constitution. The drafters meant it to bind the judiciary as it does the elected branches. Thus, stare decisis can only be applied to reasonable interpretations of the Constitution and has no place as a tool to defend unconstitutional decisions."

Firstly, of course there is no document setting out an "English" or even a "British" constitution. But many of the 54 countries of the Commonwealth do have written constitutions which their court are called upon to interpret and there is plenty of jurisprudence as to how a court in the Anglo-Norman tradition should interpret constitutional texts.

In Roodal v. The State (Trinidad and Tobago) [2003] UKPC 78 (20 November 2003) the Privy Council pointed out: "The Constitution, statute law and common law coalesce in one legal system. The Constitution has a direct effect on statute law and common law as well as an indirect radiating influence on both."

As to how a Court should approach its task, see in particular Reyes v. R (Belize) [2002] UKPC 11 where at para 26, the Privy Council held following inter alia persuasive authority from the US Supreme Court and other jurisdictions:-

"26. When (as here) an enacted law is said to be incompatible with a right protected by a constitution, the court’s duty remains one of interpretation. If there is an issue (as here there is not) about the meaning of the enacted law, the court must first resolve that issue. Having done so it must interpret the constitution to decide whether the enacted law is incompatible or not. Decided cases around the world have given valuable guidance on the proper approach of the courts to the task of constitutional interpretation: see, among many other cases, Weems v United States (1909) 217 US 349 at 373; Trop v Dulles (1958) 356 US 86 at 100-101; Minister of Home Affairs v Fisher [1980] AC 319 at 328; Union of Campement Site Owners and Lessees v Government of Mauritius [1984] MR 100 at 107; Attorney-General of The Gambia v Momodou Jobe [1984] AC 689 at 700-701; R v Big M Drug Mart Ltd [1985] 1 SCR 295 at 331; State v Zuma 1995 (2) SA 642; State v Makwanyane 1995 (3) SA 391; Matadeen v Pointu [1999] 1 AC 98 at 108. It is unnecessary to cite these authorities at length because the principles are clear. As in the case of any other instrument, the court must begin its task of constitutional interpretation by carefully considering the language used in the constitution. But it does not treat the language of the constitution as if it were found in a will or a deed or a charterparty. A generous and purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the constitution, but it is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society (see Trop v Dulles, above, at 101)...."

This is the common law consensus as to the duty of the Court of final jurisdiction when engaging in constitutional interpretation.

A court of final jurisdiction usually prefers to apply the doctrine of "stare decisis" to its previous decisions where there is no constitutional issue - for then it is usually better to leave change to the legislature, but the Court may have to adopt a different approach to its previous decisions where its duty is to "ensure contemporary protection of fundamental rights in the light of evolving standards of decency".

I suspect, however, that Bart may wish the Supreme Court to adopt an approach of putting the clock back rather than forward.
 

The court has no licence to read its own predilections and moral values into the constitution, but it is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society...

This is the internal contradiction in all common law/living constitutionalism - The court is not permitted to rewrite the Constitution to impose its own policy preferences on society except when it must impose its personal policy preferences of what constitutes "evolving standards of decency that mark the progress of a maturing society."

I suspect, however, that Bart may wish the Supreme Court to adopt an approach of putting the clock back rather than forward.

Quite the opposite. I oppose the American courts turning back the clock to the bad old days of British judges deciding what rights were and were not guaranteed you as a citizen and follow the will of the People as expressed in a written and binding Constitution.
 

Bart:

I agree with you that a written Constitution is superior, and I agree with your reasoning as to why (it does constrain judges).

I actually don't have a huge problem with plain meaning rules; I just think your side pretends that a lot of meanings are lot plainer that they really are, and that evidence of original understanding / intent is a lot clearer than it really is.

My favorite example of this isn't the due process clause, which seems to be where most of the arguments are, but the cruel and unusual punishments clause. It's really broad and really vague, and beyond the fact that we know that the framers meant to prohibit certain sorts of historically barbaric punishments, we really don't have any barometer to determine its meaning.

Accordingly, I think that it really is basically an invitation for judges to determine what is cruel and unusual based on the standards of the time. (The word "unusual", I would argue, especially suggests that. That word implies that the punishment is rarely or never imposed, which is based on current standards.)

In other words, I don't mind saying that where the Constitution is clear, judges have no business rewriting it. And I agree with conservative critiques of certain cases, whether it be Wickard or Kelo, where you could argue that the result isn't consistent with any reasonable interpretation of the text. I also agree with conservative arguments that, for instance, the Second Amendment creates an enforceable individual right, even if liberal gun controllers wish it didn't.

But what I wish conservatives would admit is that a lot of the cases they don't like are cases where really broad, vague language of the Constitution was applied to specific fact patterns in a manner that they didn't agree with. The position of conservatives on the Establishment Clause, for instance, isn't unreasonable, but it also isn't unreasonable to say that the Establishment Clause-- which is broad and vague-- prohibits the government from using its power to promote religion in various ways. Reading the Establishment clause, and looking at the statements of the framers, doesn't really answer that question in a convincing fashion.
 

This comment has been removed by the author.
 

Dilan:

We are in large part in agreement.

I have no problem as an original meaning textualist conceding that there are intentionally vague provisions of the Constitution which are essentially invitations to courts to establish judicial procedures and limits on judicial punishment. There is no other way to reasonably read the language of the DP and the C&U clauses.

Also, there can be principled disagreements as to the scope of the original meaning of various terms and phrases in the Constitution. However, the terms and phrases in the Constitution were not unusual for the time and generally have well established general meanings, so disagreements should be limited to cases on the margins and not involve fundamentally divergent opinions such as whether the term "people" in the 2A means the people or the states.

Our disagreement here appears to be whether courts should recognize judicial amendments to the Constitution which are contrary to the original meaning of the text. You take the O'Connor view that it is more important to avoid societal upset than to enforce the Constitution. I share Scalia's view on his better days that unconstitutional judicial amendment of the Constitution is itself a societal upset which need not be followed.
 

Our Backpacker responds to Dilan:

"Also, there can be principled disagreements as to the scope of the original meaning of various terms and phrases in the Constitution."

And there can be and have been unprincipled disagreements.

Our Backpacker continues:

"However, the terms and phrases in the Constitution were not unusual for the time and generally have well established general meanings, so disagreements should be limited to cases on the margins and not involve fundamentally divergent opinions such as whether the term 'people' in the 2A means the people or the states."

This has been extensively refuted by legal scholars, especially legal historians. E.g., see Saul Cornell's "The Original Meaning of Original Understanding: A Neo-Blackstonian Critique" (2007). Also see my earlier (4:32 PM) comment on Samuel Issacharoff's "Pragmatic Originalism?". There is no bright line for constitutional understanding back at the times of the various framings. There is much subjectivity and very little objectivity as pointed out by Tara Smith's "Originalism's Misplaced Fidelity: 'Original' Meaning Is Not Objective" (26 Constitutional Commentary No. 1, Fall 2009), and her earlier (2007) "Why Originalism Won't Die - Common Mistakes In Competing Theories of Judicial Interpretation." (Caution: Smith's newer article relies too heavily upon Ayn Rand. But that may suit our Backpacker's libertarian dna.)
 

Shag:

Saul Cornell's "The Original Meaning of Original Understanding: A Neo-Blackstonian Critique" (2007) is interesting in that most original meaning proponents would cite Blackstone as a basis for their approach. Cornell admits this up front and then tries to make some not so convincing distinctions like terms of art somehow fall outside of original meaning analysis because they do not necessarily match other popular public meanings. The essay then degenerates down into 2A arguments the author has with Randy Barrett.

Samuel Issacharoff's "Pragmatic Originalism" notes the conflicts between the various schools of originalism. It does not make a particularly persuasive case against original meaning interpretation in particular.

Tara Smith's "Originalism's Misplaced Fidelity: 'Original' Meaning Is Not Objective" (26 Constitutional Commentary No. 1, Fall 2009) essentially admits that original meaning works, but offers a policy argument which confuses "pubic meaning" with "original intent:"

“The Public Understanding school, unfortunately, chains us to the closed conceptions of words’ meanings that have been held by particular individuals. It attempts to reduce what is fundamentally a conceptual question (about the meaning of words) into a historical one (what did earlier people believe?). By reducing the judge’s task from interpretation to imitation, Originalism, in practice, replaces its coveted rule of law with the rule of men — earlier men.”

Public meaning addresses how a word, phrase or term of art was generally understood and is not limited to the personal views of particular men, which is essentially original intent.
 

Our Backpacker's response demonstrates his subjectivity over objectivity. Smith in her 2009 article takes Randy Barnett's version of originalism to task, as well as well as that of Keith Whittington. In Smith's earlier article, she takes Justice Scalia's version of originalism to task (but who hasn't?). We can all pick and choose from statements made by the framers and others at the time of the various various framings to support a position.

It's too bad that Andy Koppelman's post on "Why Jack Balkin Is Disgusting" did not permit comments so Jack's version of originalism could be addressed. Attacks on originalism are escalating as the search for the Holy Grail of Constitutional interpretation continues. And let's hear more on the battles between legal historians and constitutional scholars.
 

Our Backpacker's response closed with this gem:

"Public meaning addresses how a word, phrase or term of art was generally understood and is not limited to the personal views of particular men, which is essentially original intent."

And just what are the objective means for determining such general understandings at the time of the various framings by the framers and others relevant thereto in order to avoid original intent?
 

Shag from Brookline said...

Our Backpacker's response closed with this gem:

"Public meaning addresses how a word, phrase or term of art was generally understood and is not limited to the personal views of particular men, which is essentially original intent."

And just what are the objective means for determining such general understandings at the time of the various framings by the framers and others relevant thereto in order to avoid original intent?


C'mon Shag, surely you have not forgotten basic contract law or have you officially entered your dotage? Courts have been using original meaning analysis to interpret uncertain terms in contracts for centuries. The same analysis applies to the Constitution, which is essentially a contract between the People and their Government.

The technique you and your original meaning critics use of finding an exception to the generally accepted meaning of a word, phrase or term of art and then arguing that the the general meaning cannot be determined and the court must write in his or her policy preference into the contract does not get very far in any court in which I have argued a contract case. There is no reason it should be take seriously when applied to the Constitution.

There is no term in the Constitution which was original at the time and not in general use in the area to which it applied. Instead of wasting time trying to find ways around the Constitution, your scholars would be of far more use performing scholarship on the original meaning of the terms of the Constitution to assist courts and attorneys with far less time on their hands.
 

It's all so simple for our Backpacker to identify the "generally accepted meaning of a word, phrase or term of art" back at the time of the several framings as then publicly understood by the framers and others. So perhaps our Backpacker will cite to "commerce." (More will follow.)

Perhaps our Backpacker could come up with a book of such meanings/understandings for the entire Constitution rather than his work of friction (sick!) on Obama. Why then our Backpacker could restore the Lost Constitution that Randy Barnett has been seeking.

As to this observation by our Backpacker:

"The same analysis applies to the Constitution, which is essentially a contract between the People and their Government."

I'll let others of our "usual suspects" take a crack at this, while I consider my role as a third party beneficiary, one of the many "People" who had no role in the making of this claimed essential contract that is our Constitution, the dead hands of which seem to be moving our Backpacker's lips.
 

Shag from Brookline said...

It's all so simple for our Backpacker to identify the "generally accepted meaning of a word, phrase or term of art" back at the time of the several framings as then publicly understood by the framers and others. So perhaps our Backpacker will cite to "commerce."

Why did you pick one of the simplest terms, not to mention one which has not significantly changed over time. Commerce is simply the trade in goods and services. You need not go further than a review of all the Anglo American trade laws in effect at the time for its commonly understood meaning. There was no substantial debate on this point for a century and a half until the New Deal Court expanded the term well past any rational bounds.

Try something interesting like the original meaning of an archaic term no longer in use like "well-regulated" as it applies to the militia. (Hint: It means well disciplined.)
 

I'm still with Justice Souter when he said in a recent interview that originalism is fine, if you don't expect too much from it.

As for Heller, I don't find it quite all that. Doing my share of reading on Dred Scott, sorry, don't think it will inspire a Cooper Union like speech quite yet either.
 

Our Backpacker's simplicity:

"Why did you pick one of the simplest terms, not to mention one which has not significantly changed over time. Commerce is simply the trade in goods and services. You need not go further than a review of all the Anglo American trade laws in effect at the time for its commonly understood meaning."

is addressed in Randy Barnett's "Lost Constitution" on pages 278 - 291 based upon Barnett's many hours of research. But our Backpacker has the simple answer readily available in his Backback. Barnett's tour through so many hoops has not gone unchallenged. Perhaps our Backpacker personally reviewed "all the Anglo American trade laws in effect at the time for [commerce's] commonly understood meaning."

By the way, in rereading Barnett's take on the original meaning of commerce, I might have overlooked it but could not find a reference to "service."
 

Joe,

My concern with Heller is at the state level once the Second Amendment is incorporated as the yahoos will be seeking strict scrutiny on any limitations on Second Amendment rights. And self-defense has changed over the years. (Maybe our Backpacker can provide the original meaning/understanding of self-defense.) Possibly in the future the international law of nations on anticipatory self-defense will be available domestically for individuals. Heller may have opened the door to a real hell.
 

Shag:

Barrett unsurprisingly found that commerce consists of goods exchanged in economic trade. Goods exchanged in economic trade also include services. Heck, the transport of goods in trade is itself a service.

It is telling that you cannot offer an alternative original or current common meaning for commerce which can even begin to justify the violence the New Deal courts did to this term to eviscerate the Article I limits on federal power over our lives.
 

Heller itself lists, in advisory opinion fashion, various limitations that can be put in place. Its reach is simply not as broad as some might fear (or desire).

Most states already have some arms provision that offer protection. Even those that strongly secure it don't seem to be anywhere on the same level as Dred Scott.
 

The Heller dicta:

"Heller itself lists, in advisory opinion fashion, various limitations that can be put in place."

has been strongly criticized by originalists as not supported by the same history/originalism that supported the individual right of arms for self defense in the home established by Heller. Self defense is of course not limited to the home and can extend to public places. If limitations are to be determined by strict scrutiny, many of the Scalia dicta limitations may not pass muster under originalist principles. Different approaches for arms control may be taken state by state but with incorporation review will end up in federal courts. And challenges to arms limitations will be made at relatively low costs. Who knows what arms will be common in the future as the arms addressed in Heller? Arms technology marches on. The number of privately owned arms (already in excess of 300 million) surely will expand as people become more concerned with self defense as more and more of their neighbors acquire such arms. This may be Heller's "Catch 22". (In my pile there is an article that incorporates the Heller "Catch 22" that I'll dig out for the cite.)
 

Our Backpacker states:

"Goods exchanged in economic trade also include services."

Let's apply original meaning/public understanding of commerce to telegraph, telephone, internet, etc, to determine whether Congress can regulate them. Would pure services without tangible goods being exchanged in economic trade constitute commerce that can be regulated? (I'm thinking of legal and financial services that cross state lines.)
 

The fact Scalia is being criticized by originalists here (see also, Raich) could be deemed amusing. If nothing else, their annoyance doesn't change that the dicta was probably necessary for a fifth vote & a further step is unlikely.

But, I will see how things go.
 

I don't disagree with this comment by Joe:

" ... the dicta was probably necessary for a fifth vote ...."

I wonder whose vote? (Or it may have been Scalia's idea to only open the Second Amendment door a little bit, and work out the details later.) But it suggests concern on the part of some of the majority with its decision. And the criticism of originalists of Scalia's dicta, several of whom are calling for strict scrutiny on arms control limitations, can be scary as they dream of notches on their gunbelts once incorporation is in place.
 

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