Balkinization  

Monday, November 29, 2010

Tom Friedman is simply incapable of connecting the dots, alas

Sandy Levinson

Tom Friedman's column in yesterday's Times once more (and altogether accurately) expresses dismay about the present state of American politics, noting that most Americans believe the country is going in the wrong direction--I can only wonder why anyone would believe the opposite--and calling for a national commitmentn to domestic "nation-building." This is obviously not a new theme for Friedman, who has been making such arguments for at least the past year or two. but, of course, he seems incapable of even suggesting, in the mildest possible way, that one prerequisite for building a new nation is to ask serious questions about the adequacy of our 1787 Constitution--designed for a world without political parties--in 2010. Friedman, like almost all other pundits, calls for an almost literally fantastic burst of Roman republican virtue on the part of leaders who have been completely socialized in the reality of partisan politics, including the incentives generated by our particular system--think only of the "winner-take-all" aspect of presidential elections--to reject Roman civic republicanism. This is a form of "politics of nostalgia" that serves only to discourage serious discussion about the actual politics that confronts us. (One also sees this, incidentally, in the nostrums of the Washington Post's David Broder.)

I am allowing comments only because I am generally committed to doing that. But I presume that there is relatively little new to say. I am criticizing Friedman for repeating his own inadequate diagnosis, and I am, of course, equally repeating what I have said all too often. Still, if anyone does have something genuinely new to say, I look forward to reading it.

Comments:

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This "politics of nostalgia" is something we're seeing on an incredibly large level. The Tea Party is a good example, with their "constitution-worship," in the words of Economist's Lexington. It's odd that no one -- at least no one in public office or who wishes to be in public office -- seems to be advocating for rethinking or even drastically changing the Constitution. This fanaticism we as a nation have for this document is unparalleled anywhere else. We often forget, it seems, that the Drafters wanted the Constitution to change and openly acknowledged the need for the government to adapt to the times, not vice versa. Even breathing a word of this, however, outside an academic arena, is political suicide. How unpatriotic it is perform what is arguably one of the most patriotic acts available to us: adapt the government to make it better. The ultimate problem with this is one you allude Sandy. When the politics of nostalgia overwhelm our rhetoric we seem unable to break from this. "Those good ol' days" aren't a strong plan for dealing with the future. If the differences between then and now are the problems we face now, how will look back be conducive? The Constitution was supposed to be a living document, one we were supposed to adapt and amend, and without these options being politically viable, very little base change seems at all possible.
 

Eventually, Republicans will have to come to their senses and move the party toward a Mitch Daniels, Dick Lugar, Gary Johnson, Rob Portmann style of moderation. At that point, the civic republicanism that pundits are looking for might arrive.
 

I'm sympathetic to the "the structure of government described in the constitution is the true problem" arguments, but they're more therapy for liberal netroots-ers than a serious analysis. The likelihood of the kind of constitutional convention that would be required to refashion the US into a parliamentary democracy or some such is exactly 0.
 

Sandy's point:

"... one prerequisite for building a new nation is to ask serious questions about the adequacy of our 1787 Constitution--designed for a world without political parties--in 2010."

has merit; but how seriously in the present political climate would a constructive discussion or debate result? I assume that Sandy's reference to "our 1787 Constitution" would include the Bill of Rights and subsequent Amendments. Let's just consider the Second Amendment and the impact of the recent Heller and then McDonald (via the 14th Amendment) SCOTUS decisions, followed by the flow of lower court cases decided, appealed, pending, about to be filed and the voluminous legal academy writings, and the cheerleading of the NRA for removal of all barriers to achieving an absolute right to arms. This would surely be a serious discussion at a constitutional convention, but what might be the result? This is just one issue. There are many more serious issues, e.g. Citizens United and the corporate political power, that would have to be addressed at such a convention. Perhaps with the current political conditions here in America, a constitutional convention just might lead to a revolution, what with Second Amendment arsenals in the hands of a well armed - but not well regulated - citizenry.
 

The greatest obstacle to constitutional reform isn't 'constitution worship', it's living constitutionalism. Ultra-flexible 'interpretation' is an alternative to amendment. It bleeds off any pressure that might result in changing the document, by decoupling the document and actual practice.

Constitutional reform, if it's going to happen at all, is going to come from the Constitution 'worshipers', just because they're the only sizable group who care enough about the actual text of the Constitution to bother changing it.

Who's pushing for a balanced budget amendment? An amendment to abolish birthright citizenship for children of parents not here legally? Whether or not you think these are *good* amendments, all the amendments with any real backing come from people who'd be dismissed as worshiping the Constitution, and it's no accident at all.

You don't bother changing what you don't respect. You just ignore it and pretend otherwise.
 

"This would surely be a serious discussion at a constitutional convention, but what might be the result?"

Well, considering that 45 states have 2nd amendment analogs in their constitutions, which are typically much easier to amend than the US constitution... Considering that some of those analogs have been added recently, none repealed in living memory... Considering that the concealed carry movement has swept the nation, you can count the holdout states on the fingers of one hand... Considering that the Democratic party has pretty much been forced to publicly repudiate it's gun banning ambitions by democratic pressure...

I think that, unless the convention were rigged, this life member of the NRA would probably be quite happy with the outcome in that regard.
 

Brett, in addition to suffering from Wick-burn (aka "living constitutionalism"), suggests a call to arms with this:

"I think that, unless the convention were rigged, this life member of the NRA would probably be quite happy with the outcome in that regard."

with presumably both concealed and open carry by convention members that just might lead to a resolution - or revolution.

Brett is comforted with this:

"Considering that the concealed carry movement has swept the nation, you can count the holdout states on the fingers of one hand..."

apparently since there are so many trigger fingers itching to demonstrate republicanism.
 

What I'm pointing out is, whether you like it or not, the right to keep and bear arms has ample public support to safeguard it at a constitutional convention, assuming the delegates were not chosen to be unrepresentative in that respect. Which would not surprise me in the slightest.

But even if a convention did propose repealing the 2nd, I'm absolutely certain the amendment would go down in flames at the ratification step. Otherwise those state amendments would be falling.

And, "Wick-burn"; Are you constitutionally incapable of discussing anything without engaging in this sort of thing?

At any rate, any comment on my larger point: That you can't expect amendments from 'living constitutionalists', because living constitutionalism is, quite consciously, an alternative to amendment?

Most of the people who care enough about what the constitution actually says, to bother amending it if they don't like what it says, are just exactly those "constitution worshipers" Leonard refers to.
 

With respect to Brett's "At any rate, any comment on my larger point: That you can't expect amendments from 'living constitutionalists', because living constitutionalism is, quite consciously, an alternative to amendment?"

I would assume that a constitutional convention might be forced to consider the concept of originalism in the interpretation of a newly proposed constitution because the "old" Constitution does not contain such a provision for its interpretation. Remember, it was good old Ed Meese in the early 1980s who raised after several years short of the Constitution's bicentennial original intent of the framers/ratifiers, with subsequent variations on the theme, and continuing. Just imagine the serious discussion at a constitutional convention of originalism and how this might be resolved - perhaps with itchy trigger fingers.

By the Bybee (#@&%*^), Heller and McDonald might be considered a form of "living constitutionalism" that ironically might give rise to "killing constitutionalism."
 

Nothing new to say indeed. On that level, I see little value to paying attention to Tom Friedman, who has had little new to say for quite some time. This is why he was rightly put on the Salon "hack" best 30.

I suggest you find someone else even if it is just to point out that the MSM are among those who "don't get it."
 

The delegates to any constitutional convention are going to be rather enthusiastic about originalism, Shag; After all, they're participating in the origin of the constitutional language. They're going to want people interpreting their worlds to mean what they said, not trying to subvert them.

That said, of course Heller was an example of living constitutionalism, on both sides. The original meaning of the 2nd amendment was a bit too radical for the present Court to stomach; The Court was divided between a faction who wanted to destroy the 2nd amendment utterly, and a faction who were content to refashion it into a more politically correct right that wouldn't offend their tender sensitivities.
 

Perhaps Brett, with his ear to the ground in 1789, can tell us the original meaning, really, of the 2nd Amendment.

As for delegates coming up with a definition of originalism for a new or amended Constitution, surely those listening with Brett to the good old days would incorporate earlier original meanings as of 1787, 1789, Civil War Amendments, etc, of portions of the new or amended Constitution retained from the good old days, resulting in a variation of dates for original meanings. Or does Brett have in mind a tabula rasa version of originalism?
 

Mike Rappaport has established "The Originalism Blog" focusiing on - drum roll - originalism! Some might consider this a "Back to the Future - and Back Again" legal blog, where the "Wick-burns" at both ends to throw light on this subject. What an original idea.
 

I realize you mean that ironically, as though you'd set me an impossible task. But it's actually quite an easy task, since language, combined with writing, exists specifically to make finding out what people thought in the past possible. (Something living constitutionalists inevitably deny, because they're specifically out to make sure language DOESN'T bind meaning.) Let me quote Tenche Coxe, contemporary of Madison, the author of the amendment in question, who actually thanked him for his efforts in explaining the amendment to the public:

"The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American ...the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.

The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them.

Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."


The rather radical meaning of the 2nd amendment, as confirmed by numerous historical sources, is that ordinary people in this country are entitled, as a matter of right, to arm themselves in the same fashion as the military. With "every terrible implement of the soldier". This with the aim of ensuring the general populace will be militarily superior to the government.

This is of a piece with the constitutional requirement that appropriations for the Army, and for nothing else, may only be for two years at a time. We're not supposed to have a standing army. We're supposed to have an armed population, with a considerable portion of it organized and trained as a militia, so as to blunt any invasion while an army can be raised if necessary. Because armies are considered to be threats to the people's liberty.

This is a notion too terrible for the modern political class to contemplate, and so, if they do not aim to utterly abolish the 2nd amendment, as did the Heller minority, they will instead set out to neuter it, as did the Heller majority.

Neither faction approached the amendment as originalists. Both, for reasons of public relations, pretended to.
 

I don't know if Brett is a law school graduate or is engaged in the practice of law. But what he provides re: what the 2nd Amendment really, really means originally is just a snippet. It is what some have described as "law office history." This applied to both sides of Heller. Much has been written on the 2nd Amendment in recent years both before and after Heller and McDonald. It is difficult determining what the 2nd Amendment really, really meant originally. In comments on earlier posts, I referenced Larry Rosenthal's recent "Second Amendment Plumbing after McDonald: Exploring the Contradiction in the Second Amendment" available via SSRN at:

http://ssrn.com/abstract=1704722

that includes Rosenthal's response to Prof. Malcolm. (Unfortunately, Malcolm's response is not included nor, apparently, available at SSRN.)

Considering the volume of briefs filed in both Heller and McDonald by some of the legal academies and legal historians finest, we still find it difficult to establish what the 2nd Amendment really, really meant originally. Perhaps the framers/ratifiers can be forgiven for not anticipating what could happen over a couple of centuries as arms technology advanced to its current state, and continuing, with deadly results. This is a problem with originalism - it cannot deal well with the future.

No, we don't need a standing army (or navy or air force or coast guard) today if every man, woman and child be armed to the teeth with guns, the originalism weapon du jour. Is this really, really what the framers/ratifiers had in mind? Coxe was only one of the framers/ratifiers.
 

Tom Friedman and Jack Balkin in a more recent post above are engaging in willful suspensions of reality.

Friedman begins by dismissing out of hand voter worries that we are on the road to Greece with $1.5 trillion annual deficits and what the voters really wanted was even more government "stimulus" (sic) spending for "domestic nation building."

Jack goes on to argue that the GOP was acting like a EU parliamentary party by universally opposing the policies which the voters opposed as if this was somehow anti-democratic.

Sandy, even if we adopted the parliamentary system you and it appears Jack currently support, the GOP as a rational political actor would still oppose policies which both its ideology and a majority of voters believe are wrong. Instead of a divided government, the GOP would enjoy a heavy majority government in 2011 under a parliamentary system.

If a new conservative GOP parliamentary majority rolled back all the Obama policies and perhaps some of the Bush policies, I strongly suspect the progressives would be singing the praises of divided American style government.
 

Is our former Backpacker correct with this:

"Sandy, even if we adopted the parliamentary system you and it appears Jack currently support, ...."?

I assume Sandy may respond directly for himself. But I don't read either Sandy or Jack as supporting a parliamentary system as they critique the current situation under the Constitution. Jack has pointed out that pre-Bush II split government could work effectively to govern, unlike today - and perhaps in the future when the Dems may be in the minority. (For some reason, Schumpeter's creative destructionism comes to mind.)
 

Brett said...

The greatest obstacle to constitutional reform isn't 'constitution worship', it's living constitutionalism. Ultra-flexible 'interpretation' is an alternative to amendment. It bleeds off any pressure that might result in changing the document, by decoupling the document and actual practice.

I would contend just the opposite. There is a small cottage industry among conservative legal thinkers developing amendments to reverse the judicial rewrite, restore the Constitution and add checks on future judicial "amendments."

The problem with a constitutional convention is who would attend and draft the document. The legal elite and the people have far different ideas of what the document should say. Hell, it is almost as if they live in different countries.
 

Constitutional reform, if it's going to happen at all, is going to come from the Constitution 'worshipers', just because they're the only sizable group who care enough about the actual text of the Constitution to bother changing it.

Who's pushing for a balanced budget amendment? An amendment to abolish birthright citizenship for children of parents not here legally? Whether or not you think these are *good* amendments, all the amendments with any real backing come from people who'd be dismissed as worshiping the Constitution, and it's no accident at all.


There's some truth to this, but it founders because you've overlooked a crucial distinction, one that Prof. Levinson makes all the time, between the "hard-wired" portions of the Constitution and the "soft-wired". Debates about interpretation involve the "soft" passages: "due process", "cruel and unusual", etc. It's only there that we see arguments between so-called originalists and traditional methods of interpretation.

The hard-wired sections are those where everyone agrees on the meaning. The Tea Partiers want to change some of those provisions, hence they need to insist on amendments. For the "soft" passages, they're perfectly content to rely on "originalism" to gain their victories.

I don't really have a dog in the militia fight, but relying on Tench Coxe is a sign that you've got no real argument. The political classes of that era may have given lip service to the militia, but they all recognized it was useless for any actual fighting (it was perfectly good for intimidating disorganized protesters). That's why the militia fell into disuse within 20 years or so after ratification.
 

"That's why the militia fell into disuse within 20 years or so after ratification."

The reason it fell into disuse was that it worked exactly the way it was supposed to work. That is to say, it was useful for defense, useless in agressive wars. So it's not so much that it was ill conceived on it's own merits, as that it was abandoned because the people runnining the government really did want to do things that the militia system was designed to make difficult.

But this underscores the difference between living constitutionalists and originalists. Whether the militia system fell into disuse is utterly irrelevant to interpreting the 2nd amendment. The militia falling into disuse doesn't repeal the 2nd amendment, after all. It's still there in the Bill of Rights, binding law until repealed, even though the government decided they didn't WANT a well regulated militia to be around.

In fact, the 2nd amendment was meant to secure us in exactly the event that the government set out to discontinue the militia system, by providing an armed populace from which a militia could in an emergency be raised anyway, if the need struck.

I'm not impressed with this distinction between professional historians and "law office" history. Law office history, where the real history is on the side of the law office in question, can be very good indeed. Where real history undercuts the case they're trying to advance, it can be dreck.

But this does't particularly distinguish it from the output of professional historians, or else Bellesiles would never have won the Bancroft award... All history is suspect where the people producing it have political motivations, and professional historians are not typically disinterested in the contraversies of the day.

Finally, that distinction between "soft" and "hard wired" provision of the constitution doesn't really work. One of the main disputes here is which provisions are hard wired. For instance, the commerce clause looks pretty hardwired to me, but try convincing a living constitutionalist of that. Everything they don't much like is "soft". You can find living constitutionalists willing to argue that non-states can be given voting seats in Congress, and you don't get much more hardwired than THAT.
 

The phrase "law office history" has a meaning distinct from that suggested by Brett's:

"I'm not impressed with this distinction between professional historians and 'law office' history. Law office history, where the real history is on the side of the law office in question, can be very good indeed. Where real history undercuts the case they're trying to advance, it can be dreck."

Law office history connotes an advocacy argument that ignores elements of history that fail to support the advocate's position; it is incomplete and selective and not very honest. There is also "SCOTUS history" as was demonstrated by the majority (5) and minority (4) in Heller, with each side relying upon history. And Brett's reliance upon Coxe does not resolve a pregnant 2nd Amendment.

And Brett's:

" ... the commerce clause looks pretty hardwired to me, ...."

demonstrates hiis constitutional myopia. Just consider the commerce clause cases during CJ Marshall's tenure.

Hardwired are the requirements that a Rep. be at least 25, a Senator 30 and a President 35 years years of age to qualify. In contrast, the failure to specify age requirements for qualifying Justices to SCOTUS is softwired. Of course, the President making the selection who is 35 or older and the Senators approving the selection who are 30 or older might not be expected to select/approve a younger person (who need not be an attorney) to SCOTUS; but they could by following the soft text. Why did the framers/ratifiers fail to specify at least an age requirement for Justices? Was it intentional, or mischievous?

But the commerce clause "hardwired"? That's a squishy reach.
 

"That's why the militia fell into disuse within 20 years or so after ratification."

Not hardly. The militia was used continuously through the Indian wars of the Nineteenth Century and then became the National Guard, which served in both WWI and WWII.
 

The reason it fell into disuse was that it worked exactly the way it was supposed to work. That is to say, it was useful for defense, useless in agressive wars.

No, it was useless against any professional military force. Washington quickly realized this during the Revolution, as did everyone else who observed the military progress of that conflict.

But this underscores the difference between living constitutionalists and originalists. Whether the militia system fell into disuse is utterly irrelevant to interpreting the 2nd amendment.

Whether I agree with this or not, it's irrelevant to my point. My point was that your quote from Coxe was selective and not representative of opinion as of 1789. You can't just pick and choose a few quotes to construct an originalist argument, though that's often what "originalists" do.

One of the main disputes here is which provisions are hard wired.

No, it really isn't. Most reasonable people can agree on the distinction. If there's subtantial agreement that the President has to be 35 years old, then it's hard wired. If there's no such agreement on the meaning of "commerce among the several states", then it's not.
 

The reason [the militia] fell into disuse was that it worked exactly the way it was supposed to work. That is to say, it was useful for defense, useless in aggressive wars.

No, it was useless against any professional military force. Washington quickly realized this during the Revolution, as did everyone else who observed the military progress of that conflict.

I'm not sure how your comment is a rebuttal to his. In any case, the constitution was written a dozen years after the Revolution. George Washington was there when the constitution was written. (As were others "who observed the military progress of that conflict.") I suppose Washington and some of those others might have mentioned this point. So perhaps it isn't as telling as you think it is?
 

I suppose Washington and some of those others might have mentioned this point. So perhaps it isn't as telling as you think it is?

Washington did mention it, loudly and often. That's my point -- Brett cherry-picked a single obscure member of the Founding generation to make his point instead of considering all the available evidence.

I'm not sure how your comment is a rebuttal to his.

I think it's pretty obvious: the militia's effectiveness did not depend on whether it was used on offense or on defense, but on whether its opponents were professional soldiers or untrained civilians. In the former case it failed miserably.
 

"If there's no such agreement on the meaning of "commerce among the several states", then it's not."

IOW, clauses automatically move from the "hard-wired" to the "soft" category, the moment living constitutionalists get around to disputing their meaning...

"Washington quickly realized this during the Revolution, as did everyone else who observed the military progress of that conflict."

See what I mean about everybody being able to come up with bad history? This story of yours is based on a quote by Washington, discussing one particular militia unit, contrasting them with other units. And yet you're painting it as his opinion of the entire militia system. I don't know that I entirely blame you, you just were a little too credulous when presented something you wanted to believe by an anti-
 

IOW, clauses automatically move from the "hard-wired" to the "soft" category, the moment living constitutionalists get around to disputing their meaning...

No, when reasonable people can differ.

This story of yours is based on a quote by Washington, discussing one particular militia unit, contrasting them with other units. And yet you're painting it as his opinion of the entire militia system.

I have no idea what you're talking about. In any case, it wasn't just Washington, it was essentially everyone who observed the performance of the militia in the war.
 

The following quotation would be more apt as a comment to Jack Balkin's above post, "Parliamentary Parties in a Presidential System," but he doesn't allow comments. It is not totally irrelevant here, and, in any case, I think it is pretty amazing. It concerns the British Parliament, and is from Anthony Trollope's novel Phineas Redux (vol. 1, ch. 31), published in 1873:

"Mr. Gresham then repeated his reasons for opposing Mr. Daubeny's bill; and declared that even while doing so he would, with the approbation of his party, pledge himself to bring in a bill somewhat to the same effect, should he ever again find himself in power. And he declared that he would do this solely with the view of showing how strong was his opinion that such a measure should not be left in the hands of the Conservative party. It was doubted whether such a political proposition had even before been made in England. It was a simple avowal that on this occasion men were to be regarded, and not measures. No doubt such is the case, and ever has been the case, with the majority of active politicians. The double pleasure of pulling down an opponent, and of raising oneself, is the charm of a politician's life."
 


See what I mean about everybody being able to come up with bad history? This story of yours is based on a quote by Washington, discussing one particular militia unit, contrasting them with other units. And yet you're painting it as his opinion of the entire militia system.


Remind me again why originalism is the preferred mode of interpretation if everyone is capable of making up their own rendition of history based on the particular quotes they find in their internet searches.

Even the most vulgar form of "living constitutionalism" is more up-front with what is involved in the interpretative process; hiding behind a claim of objectivity while cherry-picking favored sources is simply dishonest and no less politically motivated.
 

Mike Rappaport's "The Originalism Blog" has a post on 11/30/10 that starts:

"Jose Joel Alicea (Harvard Law School) has posted Originalism in Crisis: The Movement Towards Indeterminate Originalism on SSRN. Here is the abstract:

I argue that the theories of Randy Barnett, Jack Balkin, and Lawrence Solum represent a fundamental rejection of what originalism has been through much of its history and what it ought to be if it is to make a meaningful contribution to legal thought. The fact that originalists have by and large welcomed these three theorists into the originalism tent is therefore deeply troubling because the meaning of the word 'originalism' has been stretched beyond recognition."

Originalism has such strange bedfellows? Is this an effort by "Tea Party Originalists" to oust such varied originalists as Randy Barnett (who's still searching for the Lost Constitution), Larry Solum (who honors us with his great efforts at his Legal Theory Blog) and our own Jack Balkin (who might be described as a Mugwamp with his mug on the living constitutionalism side and his wamp on the originalist side)? Doesn't Originalism need a big tent to accommodate how it has been stretched since the pioneering originalism days of Ed Meese back in the early 1980s?
 

Look, if you're going to switch from "people differ" to "reasonable people differ", then you need some criteria for when people are being reasonable in differing. IOW, the brute fact that people disagree about the meaning of a clause doesn't carry any significance, you need to look at if the disagreement itself is reasonable.

So, in the one corner, we've got "age to be a senator". That's a number, there's frankly very little wiggle room. About the extent of it would be maybe 9 months or so... In the other corner, you've got clauses with words like "reasonable" in them, which explicitly demand value judgments.

And then you've got the real meat of the Constitution, clauses like the commerce clause, which includes all these qualifying words which the current judicial interpretation elides away. And the question is, is it reasonable to interpret a clause so as to render most of it's language without effect? Is it reasonable to interpret "necessary and proper" so that "necessary" means "convenient", "proper" vanishes, and the 10th amendment is stood on it's head?

That's where living constitutionalists and originalists differ. Because living constitutionalists are devoted to the proposition that any interpretation which you can get a judge to agree with is a 'reasonable' interpretation.

"Doesn't Originalism need a big tent to accommodate how it has been stretched since the pioneering originalism days of Ed Meese back in the early 1980s?"

No. A tent is there to keep the weather off, and keep out the mosquitoes. If you make it big enough to have it's own weather system and ecosystem, it kind of loses it's point for existing. Words convey meaning as much by excluding meanings, as including them. And you know what? I'd dispute the idea that originalists have by and large welcomed Balkin into their tent. Polite disagreement isn't quite the same thing as a welcome.
 

I wonder if that originalism pup tent can accommodate both not so strange bedfellow originalists Brett and Justice Thomas reading the Constitution in the dark, since Wick-burn to provide light is out of the question.
 

Hamilton et. al. disrespected the value of the militia as an alternative to a large army. In his first inaugural, Jefferson noted: "a well disciplined militia, our best reliance in peace and for the first moments of war, till regulars may relieve them."

Telling point. In that era, there was no large organized police forces to handle things "in peace." This is where the RKBA has real bite. Heller, which Brett is no big fan of overall, after all, is not about the 'militia' as such. The question raised was ownership outside of the militia. And, the right protected was self-defense. The ruling noted that this furthered the militia, but to me, the 2A as such is not really the point there.

In a broad sense, maybe, but it is more of a common law right of self-defense, also a protected liberty. BTW, it is a bit amazing that Heller never really talked about how a D.C. law at least somewhat different for 2A purposes, especially given the amendment was largely about state discretion. Establishment Clause, Thomas jumps in and talks about something like that.

The RKBA was useful back then for peace time uses, to keep the peace, for self-defense and keep down slave revolts. One value was to avoid the need of a large standing force to do these things and it did empower the people in the process. Police forces by that metric are unconstitutional in spirit at least. They are a form of illegitimate standing army.

Anyway, Art. 1 speaks of a militia helping to execute the laws, suppress insurrections and repel invasions. It continued to have some value on that front even if professional forces were useful for wars.
 

Brett, I'm sure you find it frustrating that most of the people who've considered the issue of the commerce clause simply don't agree. Your reaction is to label all those people "unreasonable". Not to get too circular here, but that's not a terribly reasonable view.
 

Brett, as someone who thinks we'd be better off with lots of guns and no government, you're not exactly an authority on reasonable ideas.
 

My initial comment on this thread asked:

"Sandy's point:

'... one prerequisite for building a new nation is to ask serious questions about the adequacy of our 1787 Constitution--designed for a world without political parties--in 2010.'

has merit; but how seriously in the present political climate would a constructive discussion or debate result?"

I brought up the matter of the Second Amendment. Now, I wish to bring up the First Amendment Speech Clause as I am finishing up reading Steven J. Heyman's "The Dark Side of the Force: The Legacy of Justice Holmes for First Amendment Jurisprudence" available via SSRN at:

http://ssrn.com/abstract=1710813

which was recently "Highly Recommended" at Larry Solum's Legal Theory Blog. There have been many more SCOTUS decisions on the Speech Clause over the years than on the Second Amendment, including the recent and controversial 5-4 Citizens United decision. WOW! How might a constitutional convention handle the Speech Clause and what role might originalism play in coming up with a new Speech Clause? I'm at Section "V. Holmes and Contemporary First Amendment Doctrine" of Prof. Heyman's article (which runs 93 pages double spaced) addressing current Speech Clause concerns, including Citizens United. Can originalism address the complexities of the First Amendment's Speech Clause that have developed over more than 200 years? Thus, my earlier question ....
 

After finishing Prof. Heyman's article - which I thought was quite well done - I got to NYTimes hardcopy. On the Editorial page, Lincoln Caplan's "Exploring the Meaning of 'Constitutional Conservatism'" included a response to Ed Meese on original intent from Justice Brennan: "It is arrogant to pretend that from our vantage we can gauge accurately the intent of the framers on application of principle to specific, contemporary questions." Prof. Paul Brest had of course blistered Meese's original intent with his 1980s BU Law Review article. How many originalists outside of the pup tent referred to in an earlier comment still buy original intent originalism?

Then I came across Charlie Savage's "U.S. Weighs Prosecution of WikiLeaks Founder, but Legal Scholars Warn of Steep Hurdles" (page A13) that included comments by this Blog's Stephen Vladeck and Jack Balkin.

These tie together the Speech Clause and originalism on what might have to be addressed at a constitutional convention. The hard-headed may think that the Speech Clause is hardwired but their brains have been short-circuited. While the Constitution in this day and age may have inadequacies, resolving them would be difficult what with over 200 years of SCOTUS decisions and what Justice Brennan said.
 

After reading more on the WikiLeaks recent dump of documents, I realize that my earlier comments on the First Amendment's Speech Clause ignored its Press Clause. In a constitutional convention, how might the delegates address the Press Clause in light of WikiLeaks? Prof. Sonja R. West's "Awakening the Press Clause" available via SSRN at:

http://ssrn.com/abstract=1693965

provides some insights on the long ignored Press Clause. I wonder what originalists have to say about the application of the Press Clause to the WikiLeaks dump: What did the Framers/Ratifiers have in mind with the apparently non-hardwired Press Clause? Too bad that originalist pup tent has no light.
 

Jack Balkin's recent post makes it clear that he does not support a parliamentary system, contrary to what our former Backpacker said earlier in this thread. Perhaps our former Backpacker supports what Jack describes as the Republicans' current parliamentary system within the Constitution.
 

I am not trying to prolong this thread (although it is the only live one for recent posts), but cannot pass on the opportunity of considering Sandy's call for a constitutional convention by referring to Rob Post's 11/26/10 article "Iceland Holding A Modern Constitutional Convention To Re-Write Nation's Laws" that opens with this:

"And the only people who aren’t eligible to take part? The folks already elected to the government."

Perhaps the U.S. Senate (and House) should consider a similar FRESH START. I'm ready to join as perhaps might our yodeler from CO who seems to have come down with laryngitis for which tea drinking has been no cure (at least in CO). Who would have thunk it: Iceland is HOT!
 

Shag:

Jack Balkin's recent post makes it clear that he does not support a parliamentary system, contrary to what our former Backpacker said earlier in this thread.

I definitely stand corrected on that account. Jack's suggestion that the President seize Congress' tax powers and trigger a constitutional crisis in order to enhance Obama's shaky re-election prospects is far closer to advocating a Chavez style quasi-dictatorship.

Quite appalling coming from a professor of law.

BTW, the problem with Jack's suggested coup is the he would defund Social Security and Medicare with a holiday on their dedicated taxes.
 

Let me correct the misspelling of our yodeler with laryngitis:

"Quite appealing coming from a professor of law."

Let's compare what our yodeler calls defunding with the costs of extending the Bush tax cuts for the top 2%. Which would create more jobs? I don't think that our yodeler's savings as a top 2%er would be spent as readily as the few bucks of Social Security that would result from Jack's proposal to benefit so many workers. And it's temporary.
 

"I am allowing comments only because I am generally committed to doing that."

Appreciated given most of your co-bloggers don't as shown by multiple posts since yours. If nothing else, conversation and feedback is helpful to "connect dots" too. The close-minded approach used by most others here is misguided and I continue to as a policy not read such posts.
 

Shag:

It is appealing for the President to unconstitutionally seize Article I powers? Then again, you and Jack thought it proper for Congress to seize Article II CiC powers.

In short, progressive = constitutional outlaw.
 

Our former Backpacker is apparently suffering a couple of seizures and should get a constitutional grip on himself. What he fails to mention is the 5-4 originalism seizure of Article III. Is there a "three seizures and you're out" rule?
 

First, I probably have nothing new to contribute to the subject of this post, but I offer this observation/question. I understand, generally speaking, the constitutional reforms that Professor Levinson would like to see enacted. But I am not sure that I could “connect the dots” between any of those hypothetical reforms and the policies that Friedman thinks are needed. I suppose that the general thrust of Professor Levinson’s reforms would be to make it easier to change the status quo and pass new legislation; therefore, one could argue that anyone who believes we need “change” (regardless of whatever type of change it is) should be supportive of these reforms. But is that the sum total of the connection? Or is there some more specific reason to believe that a particular set of constitutional reforms would result in the policies that Friedman favors? I would suggest that Professor Levinson address this question when he has a chance.

Second, on a somewhat related topic, I recall that Professor Levinson believes that there are certain instances in which the filibuster is appropriate as a counterweight to other anti-majoritarian aspects of our system. I wonder whether he would include the situation in which the filibuster is used to block legislation in a lame duck Congress that no longer represents the will of the majority?

Finally, let me echo Joe’s frustration with the fact that so many posters, apart from Professor Levinson, are closing their posts for comments. I understand why they do it, but it is still irritating, particularly when the posts purport to be calling for responses.
 

Further with respect to Second Amendment treatment at a constitutional convention, consider the NYTimes front page article today (12/5/10) "Pushing a Right to Bear Arms, The Sharp and Pointy Kind" by Marc Lacey. While Heller and McDonald dealt with arms du jour of guns, now we have to deal with knives and the Knife Rights Inc. advocacy group pushing for legalizations at state levels. A photo illustrating the article on an inside page pictures a knife maker and his killer of a quote (that I expect the NRA to adopt for its brand of arms): "It's ridiculous to talk about the size of the knife as if that makes a difference." I'm personally fond of the non-chemical non-spice mace so keep an eye out (figuratively) for Mace Rights Inc.
 

They have a good point. Arms are arms and knife is an arm.
 

And a hand grenade, a bazooka, a tommy-gun, a shoulder missile launcher, a dirty nuclear suitcase bomb, etc, all constitute arms that can be borne in one's arms. Point taken from the pointy-minded.
 

A knife = a suitcase nuke? Do hyperbole much?
 

To paraphrase our former Backpacker:

"Arms are arms and a suitcase nuke is an arm."

How do originalists/textualists determine what constitute arms that can be kept and borne by a person under the Second Amendment? To what hyperbolic extents can we expect the NRA and gun yahoos to go regarding automatic weaponry as an un- or minimally- regulated right?
 

Shag:

Scalia's measure of arms commonly owned by the American people is a pretty good yardstick, analogous to the measure of unenumerated rights as those well established in society.
 

However, originalism/textualism and history fail to support Scalia's measuring cup of arms. What happened to our sage yodeler's "Arms are arms" when specific arms are mentioned? The NRA is not interested in limitations. After the knife-throwers, are brass knuckles and blackjacks far behind? Keep in mind self defense is not limited to home sweet home. There will be yahoo attorneys out there ready on the cheap to push the envelope of death to justify Second Amendment arms of all sorts. Keep in mind what may become common in the future: for every action there is an equal and opposite reaction. Arms technology and power will increase as in the past.
 

Ilya Somin's 12/6/10 post at VC "Assessing the Very Limited Impact of McDonald and Heller on Gun Regulations" is somewhat comforting as to guns but arms other than guns will continued to be pursued by yahoo lawyers to establish their Second Amendment absolutism goals.
 

Those with access to JSTOR might take a look at Paul L. Murphy's "Time to Reclaim: The Current Challenge of American Constitutional History," The American Historical Review, Vol. 69, No. 1 (Oct., 1963), pp. 64-79, at page 77, for a description of "law office history." Is it time for an article on "SCOTUS history" post Heller and McDonald?
 

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