Balkinization  

Thursday, March 08, 2012

Mirror imaging

Sandy Levinson

Richard Epstein posted a response to my Liberty Law precis of my new book. He is, obviously, a person of formidable intellect and debating skills, and I appreciate his response. What I find especially interesting is his comment that he "would fight against this general approach with every fiber of my being. It is not because I think that the current state of affairs is ideal, when manifestly it is not. It is rather that I think that any revision of the document will move us dangerously along a path of greater and more powerful government at the national and state levels that will only make matters worse." That is, he presumably believes that a new constitutional convention, which I continue to endorse, would inevitably be taken over by a left eager to create an evermore "powerful government . . . that will only make matters worse." The reason I find this so interesting is that this so perfectly mirrors the views of most of my friends and family, i.e., that any convention would inevitably be taken over by people like Prof. Epstein (or worse), who would promptly repeal the Bill of Rights (which Epstein most certainly would not) and repeal the New Deal (which Epstein, if given his druthers, would do). Indeed, what became clear at the conference at the Harvard Law School in late September co-convened by Larry Lessig and the head of the Tea Party Patriots is that almost no one, besides Larry and myself, really wanted a new convention precisely because almost everyone there was certain that their adversaries would control it. Each, I think, strongly over-emphasizes the power of the other.

In any event, I have a quick response to such worries, which is select delegates (about 700 of them) at random. That would presumably mean there would be some delegates reflective of Prof. Epstein's views, on the one hand, and, say, Dennis Kucinich on the other. But no one could plausibly believe that either would dominate. We would get what we most certainly do not get in our current frenzied politics, a genuinely representative cross-section of the American demos. As a matter of fact, only a scheme like lottery selection can overcome the mirror-imaging that leads to the cessation of a serious conversation even before it can begin. After all, Professor Epstein scarcely offers a ringing endorsement of the Constitution in the comment quoted above. Rather, he's simply scared either that people like me will cleverly dominate any convention or, perhaps, that his views are shared only by a relatively small number of Americans (roughly the same percentage as those willing to vote for Ron Paul) and that it's better to stick with the status quo than to risk exposure to genuinely democratic decisionmaking.

Comments:

Please, please, please, find someone who will put up the money to fund a study in which 700 people are chosen at random to write a new constitution. I for one would love to see the result.

And maybe it would shed some light on this debate. Maybe.
 

I shudder to think of how such a Convention might address Article III, a relative short provision, based upon the course of the Supreme Court over 200+ years. How might a Convention address judicial review, judicial supremacy and interpretation/construction built into a new constitution? Might the concept or legal theory of originalism be included? If so, might such concept/legal theory be based upon public understanding as of Convention-time or incorporate public understanding at the relevant times of the adoption of the Constitution, Bill of Rights, Civil War Amendments, etc, for some provisions? Might limits be placed on Justices' terms?

I have read Jack Balkin's recent post but have not listened to his lecture. I recently read Mark Tushnet's "1937 Redux?: Reflections on Constitutional Development and Political Structure" available via SSRN:

http://ssrn.com/abstract=2002771

Both Jack and Mark make reference to Stephen Skowroneck's "The Politics Presidents Make: Leadership from John Adams to Bill Clinton" (1993). The role of the Supreme Court may be at the center of a new constitution that might result from a Convention. While initially the Supreme Court was described as the "weakest branch," it has acquire strength along the way without Article III being amended. With such a Convention might the Supreme Court become the strongest branch?
 

I don't share the views of Prof. Epstein but also (per a Volokh Conspiracy post on this issue) support the "scapel" approach.

History suggests some major convention to provide an overhaul is unlikely to occur. It took a revolution and civil war to do so before and even there the change was limited. I simply don't think our society is willing and able at the moment to do it.

There are various ways, over time, like was the case with amendments and policy changes in the early 20th Century, to change things. And, like Justice Ginsburg noted, our Constitution does have some antedated aspects for 21st Century society.

But, the very imperfect "tea party revolution" underlines a lot more needs to be done w/i the system before such complete change is possible. And I'm more optimistic that it can occur and pessimistic that trying a constitutional convention approach (the select delegate idea, honestly, seems like some role playing game idea, not likely to actually occur in the real world) is advisable.

I don't think the Constitution is as flawed as SL does but his criticisms are important to force us to face up to its flaws.
 

Sandy wishes a constitutional convention to fundamentally change our constitutional order. Those of us who support restoring the original meaning of the Constitution also need to seriously consider the option of a constitutional convention.

Simply appointing libertarian/conservative jurists to the bench has proven largely useless. Over the past century, progressive jurists have substantially erased many of the checks, balances and separations of power in the Constitution providing for limited government. Libertarian/conservative jurists appointed after the fact follow stare decisis over the text of the Constitution and have left the progressive rewrites of the Constitution largely intact.

Simply electing libertarian/conservative representatives to the White House and Congress has proven only a little less useless. The bureaucracy currently enacts the vast majority of law and the checks and balances meant to keep Congress from exercising power are now protecting the bureaucracy from the Congress.

Finally, the Founders had no way of foreseeing how a future standing army and a future welfare state and its entitlements would massively undermine the requirement to declare war and normal fiscal discipline to drive the country inexorably towards insolvency. This needs to be addressed in the Constitution.

Also, the Founders did not foresee future abuses of judicial review of the Constitution used to effectively rewrite the document and thus undermine the entire constitutional project. The Constitution needs to more precisely define the parameters of judicial review and perhaps provide a Congressional check.

Thus, I join Sandy concerning the need for a constitutional convention, if not concerning the outcomes of such a convention.
 

I would say that the real problem of judicial review, is that it is scarcely better that a man, or level of government, chose the judge for his own case, than that he BE the judge in his own case.

That is to say, the fatal flaw of the Constitution was that the limits on federal power are adjudicated before judges chosen by federal officers. Leading to the obvious realization on the part of said officers, that all they need do to be free of the Constitution's constraints is to chose the right people to be judges.

The full blossoming of this problem had to wait until the 17th amendment to take place, as prior to that amendment, Senators were at least partially subject to state level political constraints in who they dared confirm.

This exploit, to use a software analogy, is not going to be forgotten. Any rewrite of the Constitution which retains this feature will be swiftly rendered toothless.

The obvious answer is to either have federal judges chosen at the state level, or have a special body constituted from state officers to hear cases relating to the extent of federal powers.

But simply amending the Constitution without addressing this problem? Surely the 27th amendment taught us what a waste of time that would be.
 

The really, really real problem of judicial review is that neither Article III nor the remainder of the Constitution specifically provide for judicial review, with the result that there is no standard spelled out in the Constitution for judicial review. Originalism in its present version looks at public understanding not only of the framers and ratifiers of the original Constitution plus the Bill of Rights, but of the public at the time, in interpreting/construing the Constitution (as amended). History plays a part in this. But one must go beyond the four corners of the Constitution not only to justify judicial review but to determine the extent of such review.

Brett is obviously a states rightist in his view of the federal judiciary. Perhaps he would have preferred the Articles of Confederation remained in place. Or perhaps his concern is that the Constitution can be amended, since he is obviously apoplectic with the 17th and 27th Amendments. Perhaps Brett is similarly apoplectic with the Civil War Amendments as well. But what is clear is that Brett would take us back to a time freeze of the original Constitution and the Bill of Rights well over 200 years ago.

Brett's:

"The obvious answer is to either have federal judges chosen at the state level, or have a special body constituted from state officers to hear cases relating to the extent of federal powers."

would result in the tail wagging the dog. If this is the "obvious answer," perhaps Brett could compose an "obvious amendment" to address it.

On a more serious note, I recently read F.E. Guerra-Pujol's draft article "Godel's Loophole" available at SSRN:

http://ssrn.com/abstract=2010183

about the amending power in Article V. The draft is relatively short and lacks a Conclusion. But I'm curious whether there is such a loophole that might be exploited at a Convention.
 

"Or perhaps his concern is that the Constitution can be amended, since he is obviously apoplectic with the 17th and 27th Amendments."

Your reading comprehension, as usual, sucks. I might think the 17th amendment imprudent, but it's a legitimately adopted amendment to the Constitution, and as such, as deserving of enforcement as any other part of the document.

And the only basis on which I'm "apoplectic" about the 27th amendment, is the way the courts defanged it, by ruling that Congress could delegate it's power to raise it's pay to somebody else, and thus escape the amendment's reach.

No, I would not restore the original constitution, many of the amendments were prudent additions, and to the extent the imprudent ones were properly ratified, their lack of prudence has no relevance to the question of their enforcement.

Why is it that living constitutionalists insist on pretending that people who argue the Constitution only changes it's meaning when and as amended, want to ignore amendments? Is it because your position collapses if you admit the Constitution CAN be amended?
 

A Convention cannot avoid addressing originalism versus non-originalism. [Note: Non-originalism is not limited to living constitutionalism just as originalism has several versions and is in flux.] In this regard, check-out Lee J. Stang's short (10 pages) paper "The Most Faithful Originalist?: Justice Thomas, Justice Scalia, and the Future of Originalism" available at SSRN:

http://ssrn.com/abstract=2016929

and pay attention to the footnotes, especially footnote 23 (p.p. 875-6) on the following text:

"Like Stephen D. Smith, originalism's rapid development and diversification has caused me unease, though, at this point, I am not sure if the ferment in originalism is a sign of vitality or decay." [Alert: Prof. Stang has a sense of humor.]

While Brett says he can abide by the 17th Amendment, since it was legitimately adopted, he calls it imprudent, yet declines to respond regarding the "obvious amendment" to his "obvious answer" to correct such imprudence that would permit the tail to wag the dog.

Regarding the 27th Amendment, I thought that Brett's concern would have been that it had been in play for 203 years before its eventual adoption. Rather, Brett's concern is with COLA overriding it. Maybe Brett prefers Mountain Dew.

By the Bybee [expletives deleted], I cannot deny that the Constitution can be amended. But perhaps there might result a "Godel's Loophole" whereby an amendment to Article V might provide for further amendment by a mere majority.
 

"That is to say, the fatal flaw of the Constitution was that the limits on federal power are adjudicated before judges chosen by federal officers."

Who picks these "federal officers"? The people. Why is it better for state legislatures to elect senators than the people? Why are the people less able to choose senators with local interests in mind?

And, looking at the senators elected, does Brett really think they don't have local interests in mind? Is Rand Paul, e.g., somehow not concerned with his state? Chuck Schumer? etc.

Who would have jurisdiction? A local state trial in the Bronx isn't tried by a federal judge. Federal officers don't pick state judges. Brett again suggests he doesn't actually like the Constitution. Having states have so much control was rejected as a problem with the predecessor.

But, who picks these officers? The people of individual states, two per state and one person elected by the people at large. We aren't talking about some sort of federal bureaucrat here.

As to "living Constitution," this term is again abused. The core meaning is not changing. But, as those who wrote it intended and expected, the exact meaning of what the terms mean would not be understood in the same way.

So, separate but equal might be no longer deemed allowable under the core meaning of the text.
 

Joe, I take it you figure Buchanan shouldn't have gotten a Nobel prize. Since you seem to have completely rejected the findings of public choice theory...
 

There's no way to select judges in a "neutral" way for those who wrongly persist in seeing the key disputes as "states" v. "federal". Under the current system the judges are supposedly biased in favor of "federal". But if the "states" chose the judges, the bias wouldn't disappear, it would simply run the other direction.

Those who focus on "states" simply misunderstand the fundamental nature of the American system. The key feature of the Republic is its dependence on the people, not on the artificial entities we call states. Protecting the "rights" of "states" is useless -- "states" don't have rights. People have rights, and the only issue is whether the judges adequately protect those rights.
 

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Brett's proposal:

"The obvious answer is to either have federal judges chosen at the state level, or have a special body constituted from state officers to hear cases relating to the extent of federal powers."

would require several amendments. But how would Brett's proposal address the "Supremacy Clause," or might that have to be amended also? Perhaps Brett would revert to the Article of Confederation.
 

Mark Field's last comment reaffirms my thought that some people don't really like certain things the Constitution is based on. Some simply misstate it. Others are more explicit ("fatal flaw").

As to Brett's last comment, I honestly am not familiar with Buchanan's work. Maybe Mark Field or someone else here is.

The issue is somewhat moot anyway since direct election of senators was in the process of being the norm even w/o the 17A.

Also, again, does Brett not think senators are NOW "partially subject to state level political constraints." Are state legislatures the only "state level political constraints"?

Curious wording if so.
 

I agree with Brett that the main problem undermining our constitutional government is the judiciary treating the Constitution as a common law document in judicial review. I would suggest a two prong approach to solving this problem - define the parameters of judicial review and provide a congressional check. Perhaps an amendment something along these lines:

Section 1. The judicial power shall include interpretation of the law, treaties and this Constitution, but such interpretation shall be limited to the original meaning of the language of the law as it was commonly understood at the time of its enactment. To the extent that the original meaning of a provision of this Constitution is uncertain, the judiciary shall construe the language against the reviewed government exercise of power.

Section 2. Congress shall have the power to review and revise a judicial interpretation of this Constitution by the Supreme Court within five years after entry of the order of the Court. A bill revising a judicial interpretation shall originate in the House of Representatives and must be approved by a two-thirds vote of both the House of Representatives and the Senate. A bill of revision so approved is binding upon the Executive and the Judiciary. A bill of revision is not presented to the President of the United States and the President may not disapprove it.
 

Public choice theory is the attempt to universalize (or at least broaden) the application of the assumptions of economics to the sphere of politics. In essence it says that we should treat political actors as economically rational agents (as in economics).

The flaws in the application of this theory to politics are at least as obvious as the basic assumption of "rationality" is in economics itself. The hubris of economists knows no bounds.
 

Just a couple of quick comments, for now, on our yodeler's proposed amendment:

1. " ... the original meaning of the language of the law as it was commonly understood at the time of its enactment." Commonly understood by whom: framers, ratifiers, public, others? Form/standard of proof, e.g. history (law office or otherwise)?

2. "A bill of revision so approved is binding upon the Executive and the Judiciary. " But is it binding on the Legislative?

3. "To the extent that the original meaning of a provision of this Constitution is uncertain, the judiciary shall construe the language against the reviewed government exercise of power." This could prove to be unwieldy, with the result that if interpretation fails, then construction would also fail - or is that the point?

Has this proposed amendment been echoing in our yodeler's brain or has he "adopted" without attribution (to put it kindly) the work of others?
 

Shag:

1. " ... the original meaning of the language of the law as it was commonly understood at the time of its enactment." Commonly understood by whom: framers, ratifiers, public, others?

Yes. Why limit the scope of the inquiry to only one or two groups?

Form/standard of proof, e.g. history (law office or otherwise)?

Relevant primary sources from the time using the language.

2. "A bill of revision so approved is binding upon the Executive and the Judiciary. " But is it binding on the Legislative?

Given that the Congress just enacted the bill of revision, including them in this clause would seem redundant.

3. "To the extent that the original meaning of a provision of this Constitution is uncertain, the judiciary shall construe the language against the reviewed government exercise of power." This could prove to be unwieldy, with the result that if interpretation fails, then construction would also fail - or is that the point?

I am unsure what your point is here. My intent was to create a constitutional presumption for individual liberty and against the exercise of government power when there is a doubt that the Constitution grants the government such power. This is similar to the presumption made against the drafter of an unclear contractual provision.

Has this proposed amendment been echoing in our yodeler's brain or has he "adopted" without attribution (to put it kindly) the work of others?

This is my work, thank you very much.
 

The Supreme Court of California is accountable to the electorate, but you still hear the old saws about the tyranny of unelected judges. I'm not sure how transferring appointment from one government official to another--regardless of change in the level of government--is going to make anything better in that respect.
 

Bart, I fail to see how giving Congress the power to over-ride Supreme court rulings fixes anything, when the primary expression of judicial corruption is wrongly permitting unconstitutional usurpation of power by, yes, Congress. Wouldn't this just make the problem worse, by eliminating those outlier cases where the Court isn't quite ready to endorse the latest usurpation?
 

"primary expression of judicial corruption"

Why just focus on "judicial" corruption when the people themselves keep on voting in people who nominate and confirm such people?

"We the People," as Mark Field ultimately notes, though Brett by challenging me etc. doesn't seem to like it ("fatal flaw"), has the ultimate power.

We the People don't want to pass the amendment Bart Palma favors or to provide congressional override. The latter is quite possible since other countries have it, though even when they do (Canada, let's say), there is a certain trend in not using it that often, our system of judicial review (including the common law approach that many of us, fwiw, think the framing generation expected) like our films, a successful export.
 

James Madison on alleged "judicial corruption":

Waiving the question of the constitutional authority of the Legislature to establish an incorporated bank as being precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation

Veto Message on the National Bank (January 30, 1815)

The true "corruption" for Brett should not be "judicial" corruption but the alleged corruption of the people, legislators and so forth who by act and deed as a whole support the modern judicial understanding that he rejects. The Heller case is telling. Under his analysis, every single justice was "corrupt." Even Justice Thomas.

Not that I ever got an answer from him of what era I should look to that did not have "judicial corruption" so I could get a sense of when the courts EVER wasn't corrupt under his analysis.
 

Brett:

My proposed congressional bill of revision would obviously not apply to situations where the Court upholds an exercise of power of the current Congress, but rather to situations concerning:

1) A past Congress exceeding its power and being fired in an intervening election,

2) Executive power,

3) Individual rights,

4) And more importantly for the purposes of this check, the scope of the judicial power.
 

Joe:

I do not want Congress to frequently enact bills of revision and have made it difficult to do so in all but the most outrageous cases.

Reversing a case like Kelo comes to mind.
 

I'm pleased that our yodeler claims pride of authorship of his proposed amendment.

His response to my point 2:

"Given that the Congress just enacted the bill of revision, including them in this clause would seem redundant."

fails to address what Congress may do AFTER passing a bill of revision, let's say a future Congress. Can Congress undo the bill by majority vote with the President signing on?

Rather than "redundant," the clause is incomplete. OOPS!
 

Further with regard to our yodeler's response, this time on my first point on "Form/Standard of Proof ...,":

"Relevant primary sources from the time using the language."

perhaps a historian could take a crack at this. What if relevant primary sources are contradictory? And might "primary" sources go beyond framers and ratifiers? If so, this could be quite broad.
 

Shag:

Good observation concerning a second congress attempting to reverse the first. It would be difficult to get two super majorities within five years of a Supreme Court decision going in opposite directions, but the language of the amendment should make a bill of revision final.

The public meaning of legal phrases and terms are very rarely confused. When they are, my proposed amendment construes them against the exercise of government power over the people.

Thanks for the feedback.
 

Our yodeler's resolution:

" ... but the language of the amendment should make a bill of revision final."

fails to respond to permit for what could be egregious action by Congress that Congress later realizes is egregious. Would the amendment process in Article V be the only way out? That process is of course difficult. Even a two-thirds Congress could take egregious action.

And our yodeler on:

"The public meaning of legal phrases and terms are very rarely confused."

suggests he has had a memory loss on the many Supreme Court decisions on public meaning of sections of the Constitution that have been controversial as well as confusing.

I continue with concern for "relevant primary sources" and still hope we can hear from a historian - not Newt Gingrich - in this regard.
 

"the most outrageous cases"

that is, whatever the current supermajority has the will to vote as such; I prefer the current more republican system, but than I probably have different ideas on what "most outrageous" means too.
 

Shag:

BD: ... but the language of the amendment should make a bill of revision final."

fails to respond to permit for what could be egregious action by Congress that Congress later realizes is egregious. Would the amendment process in Article V be the only way out?


If Congress can muster 2/3 of both chambers to enact a bill of revision, it will be pretty much the supermajority will of the people and not egregious.

Yes, amending the Constitution would be the only way to change that supermajority will.

BD: "The public meaning of legal phrases and terms are very rarely confused."

suggests he has had a memory loss on the many Supreme Court decisions on public meaning of sections of the Constitution that have been controversial as well as confusing.


Generally, this occurs only when the Supremes are playing snipe hunting games concerning the original intent of individual drafters or even worse the opinions of non -drafters like the infamous separation of church and state language from a Jefferson letter. This is not the same thing as the original meaning of the legal phrases and terms.
 

Consider the original meaning of the legal phrase/term "due process of law" in the 5th Amendment (1791) and in the 14th Amendment (1868). Because of enactment dates some 76 years apart, hasn't there been confusion on the part of the Court in applying original meaning to this legal phrase/term?

With respect to our yodeler's own engaging in snipe-hunting:

" ... the opinions of non -drafters like the infamous separation of church and state language from a Jefferson letter."

consider that the framers/ratifiers of the 14th Amendment were well aware of the Jefferson letter and the history of both the Supreme Court and the states regarding religious issues to the extent that the 14th Amendment just might have incorporated as against the states (inter alia) the establishment and free exercise clauses of the first Amendment. Perhaps our yodeler is left holding the bag.
 

Here's a link to "Law Notes" on "Primary and Secondary Sources of the Law":

http://profj.us/24sp/law34/primary.htm

I'm not sure how this might fit our yodeler's proposed "Bill of Revision" amendment. Perhaps the historian's view of primary versus secondary sources may be more relevant.

This discourse in miniature between our yodeler and me might suggest a tsunami at a Convention with actual scholars or lottery-selected delegates. Recall the punchline of the old joke about contest prizes: First Prize, one week in Philadelphia; Second Prize, two weeks in Philadelphia. In this regard, consider the summer of 1787's closed Constitutional Convention in Philadelphia as compared to an open Convention called pursuant to Article V to be held in Philadelphia and how many summers that might take. W. C. Fields to the contrary regarding his epitaph, personally I'd rather NOT be in Philadelphia.
 

This link to Indiana University on "Identifying Primary and Secondary Sources":

http://www.libraries.iub.edu/?pageId=1002226

may be better.
 

Shag:

Determining the original meaning of legal terms and phrases is hardly novel to the judiciary. Lawyers and their experts do this analysis for contracts, deeds and wills.

Nor is the distinction between primary (a party or document defining or using the term or phrase) and secondary sources (third party reporting or analysis) a particularly difficult one to grasp.

The Jefferson letter is not evidence at all of the meaning of the Establishment Clause, but merely the personal opinion of how our government should operate of a third party.
 

Our yodeler's response on Jefferson's letter:

"The Jefferson letter is not evidence at all of the meaning of the Establishment Clause, but merely the personal opinion of how our government should operate of a third party."

may have been appropriate back when that letter was written. But the letter and considerations, political and otherwise, concerning issues raised by it had developed beyond Jefferson's personal opinion by the time the 14th Amendment was adopted (1868) such that there was indeed relevance with respect to limitations placed on the states by the 14th Amendment. Perhaps our yodeler's recollections of Heller and McCarthy v. Chicago can be refreshed regarding, especially in McCarthy, the situation in 1868 regarding the Second Amendment, since 1868 would be the relevant original meaning date for the 14th Amendment in "applying" the Second Amendment with regard to the states and not 1791 when the Second Amendment was enacted. (That's the basis of originalists supporting gun-yahoos.)

Our yodeler's responses regarding primary and secondary are too simplistic as one should be aware from studying ConLaw. But perhaps our yodeler could cite sources in and around 1789, 1791 and 1868, for the then meanings of primary and secondary legal sources.

Our yodeler is still holding the bag awaiting the snipe.
 

Shag:

BD: "The Jefferson letter is not evidence at all of the meaning of the Establishment Clause, but merely the personal opinion of how our government should operate of a third party."

may have been appropriate back when that letter was written. But the letter and considerations, political and otherwise, concerning issues raised by it had developed beyond Jefferson's personal opinion by the time the 14th Amendment was adopted (1868) such that there was indeed relevance with respect to limitations placed on the states by the 14th Amendment.


Political considerations a century after the enactment of the Establishment Clause during the enactment of the 14th Amendment are completely irrelevant to the original meaning of the Establishment Clause and nowhere does the text of the 14th Amendment expand or contract the guarantees in the Bill of Rights.

McDonald v. Chicago discussed the scope of 14th Amendment incorporation and did not use the 14th Amendment to define terms in the 2d Amendment.

But perhaps our yodeler could cite sources in and around 1789, 1791 and 1868, for the then meanings of primary and secondary legal sources.

I would start by reviewing documents using a particular phrase or term at that time and then move to written court opinions at that time defining the phrase or term. Then I would proceed to legal treatises of the time.

Pretty simple (if time consuming), not simplistic.

Indeed under and original meaning regime, legal academia could be of substantial use by doing the research for books and law review articles on the various clauses and terms in the Constitution.
 

Our yodeler's suggested research:

" ... books and law review articles on the various clauses and terms in the Constitution."

may indeed be secondary sources.

With respect to McDonald [not McCarthy, my error] v. Chicago, the majority opinion did consider the understanding of the Second Amendment at the time of the enactment of that Amendment. Recall the concerns for former slaves, which were not concerns back in 1791.
 

Law review articles and books discussing primary and secondary sources of the time identify those sources for litigants and courts. The litigant's and courts can take any commentary in the article or book for what it is worth. Such commentary does not define the legal term or phrase.
 

Let's go back a number of comments when I focused on three points regarding our yodeler's proposed amendment. My first point included this:

"Form/standard of proof, e.g. history (law office or otherwise)?"

to which our yodeler responded:

"Relevant primary sources from the time using the language."

Following this, I continued to raise concern with primary sources. After several back and forths, our yodeler now seems to focus on secondary sources that might reference primary sources. But how often are there "Relevant primary sources from the time using the language."? Consider the 14th Amendment and the "doctrine" of incorporation and the history of incorporation.

Here's a new comment with respect to this portion of Section 2 of our yodeler's proposed amendment:

"Section 2. Congress shall have the power to review and revise a judicial interpretation of this Constitution by the Supreme Court within five years after entry of the order of the Court. A bill revising a judicial interpretation shall originate in the House of Representatives and must be approved by a two-thirds vote of both the House of Representatives and the Senate."

First, a bill of revision would only address decisions of the Supreme Court, not Courts of Appeals or District Courts. Let's imagine that a Court of Appeals issues an egregious decision but cert is not granted.

Second, with regard to the "five years" provision, what if a Supreme Court decision in effect reaffirmed Brown v. Board of Education within a five year period in a recent case. Could Congress via a bill of revision determine that the reaffirmed principle of Brown was unconstitutional? What might Congress be able to do via bills of revision to overturn precedent going back well over five years that is currently being addressed and reaffirmed by the Court in newer cases?
 

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Shag:

First, a bill of revision would only address decisions of the Supreme Court, not Courts of Appeals or District Courts. Let's imagine that a Court of Appeals issues an egregious decision but cert is not granted.

We live with it until the Supremes do take the issue up and correct the error. My suggested bill of revision is a democratic check on the judiciary if the appellate process cannot correct the error.

Second, with regard to the "five years" provision, what if a Supreme Court decision in effect reaffirmed Brown v. Board of Education within a five year period in a recent case. Could Congress via a bill of revision determine that the reaffirmed principle of Brown was unconstitutional?

Yes.

The five year deadline is meant to limit bills of revision to checking future extra-constitutional decisions of the Supreme Court, not to revisit settled law. To deal with past extra-constitutional decisions undermining our Constitution's checks and balances, I suggest enacting a series of further amendments.

That being said, if the Supremes decide to revisit an issue, then they invite congressional oversight.
 

It looks like our yodeler with this:

"To deal with past extra-constitutional decisions undermining our Constitution's checks and balances, I suggest enacting a series of further amendments."

has fully come out of the closet of fear of demographics. Perhaps one of such further amendments may address Brown v. Board of Education?
 

Shag:

What is your fixation with Brown v. Board?

In any case, Brown I was not one of the "past extra-constitutional decisions undermining our Constitution's checks and balances" to which I referred.
 

Perhaps our yodeler can provide his list of:

" ... past extra-constitutional decisions undermining our Constitution's checks and balances, ... "

and his list of " ... a series of further amendments" he would propose to be enacted.

Go back and reread Sandy's post and consider the direction of this thread and think of how an Article V Convention might function to provide Sandy's goal of " ...genuinely democratic decisionmaking."
 

Instead of going into a constitutional convention hoping something good will be produced, it would be better to set an agenda first with proposed amendments before calling the convention.

This would probably take a realignment election based upon an agenda of constitutional reform to create a mandate.
 

The new post on the PPACA underlines that the people support a common law approach to the Constitution.

The "Tea Party" caucus in act and deed do not disagree with this sentiment though some (like some on the progressive side in fact) at times appeal to the framing principles.

The "True Scotsman" approach taken by some in respect to let's say Ted Olson underlines this fact.

Ditto the arguments of those opposing the law itself. Though some (as Randy Barnett did in a debate with Pamela Karlan aired on C-SPAN and perhaps available on its website) admitted that ideally they would override the New Deal, their argument accepts various things have been accepted ala Madison's veto of the bank bill.
 

The "keep your hands off my Medicare" brigade underlines my last point. The group selectively opposes the Obama Administration. They in no way consistently reject modern understandings of constitutional principles. As with those who speak of 'family values' while accepting the legitimacy of ready divorce, many of their agreed upon assumptions would surprise people in 1789
 

I made a minor dent in my reading pile with Andrew Koppelman's "Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism," a short 13 pages, available at The Yale Law Journal Online. As I read the article I could not help but think about this post and the thread that was partially a two-person ad hoc Convention that seemed to come down to agreeing not to agree. Koppelman has a great sense of humor, well demonstrated in this response to Lawson and Kopel's earlier response to Koppelman's earlier paper (all available at Yale Law Journal Online). I noted in an earlier comment on this thread that a Convention under Article V would probably have to address originalism and non-originalism. Lawson and Kopel seem to be on the same extreme as our yodeler. Rather than point out details, the article is quite short, worth a read and should provide chuckles as well; but as a tease, Koppelman suggests that Lawson is even more extreme than Justice Thomas.
 

Rebecca E. Zietlow, Popular Originalism? The Tea Party Movement and Constitutional Theory

http://www.floridalawreview.com/2012/rebecca-e-zietlow-popular-originalism-the-tea-party-movement-and-constitutional-theory/

Some further reading.
 

With this thread having waned, I had looked forward to making time to read Jack Balkin's "Nine Perspectives on Living Originalism" available at SSRN:

http://ssrn.com/abstract=2015088

It runs 59 pages and from past experience, I would want to read it straight through, as I enjoy Jack's writing style.

But before I could block out the time, via Larry Solum's Legal Theory Blog I became aware of Randy Barnett's "The Case for the Repeal Amendment" that runs only 10 pages, available at SSRN:

http://ssrn.com/abstract=2021412

The title brought to mind the discussion on this thread of our yodeler's "bill of revision" proposed amendment which could empower Congress to "overrule" the Supreme Court; in contrast, Barnett's Repeal Amendment could empower the States to repeal acts of Congress. So I felt compelled to read Randy's article before Jack's (in addition to perhaps being lazy).

By the Bybee [expletives deleted], Larry Solum in posting on Randy's article did not provide any editorial comment, e.g., "Recommended" or "Highly Recommended." But I urge those interested in Sandy's post and this thread to "download it while it's hot." (I'm sure Brett will be nodding his head if he were to read Randy's article, especially Randy's comments on Amendments 16 and 17.)

Randy's lead-in to his critique of the 16th and 17th Amendments is preceded by this flowery prose that he provides without quotes:

"In this manner, the original scheme of islands of federal powers in a sea of liberty has been transformed into a regime of islands of rights in a vast sea of national power." [Page 814, at footnote 10.] [Maybe in the ACA case Randy hopes that at least Justice Thomas, if not Justice Scalia, might adopt this prose.]

Wow! I can just picture Randy walking the plank of a federal pirate ship holding on tightly to his "Restoring the Lost Constitution" and a copy of the Supreme Court's decision in Gonzalez v. Raich (or at least Justice Thomas' dissent). [See footnote 5 @ page 813.]

Imagine what Sandy's desire for an Article V Convention might lead to.
 

Darn that Larry Solum! He has a new post on Brad Snyder and John Q. Barrett's "Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts on Justice Jackson and Brown" available at SSRN:

http://ssrn.com/abstract=2023269

This article focuses on a letter from Rehnquist to Justice Frankfurter sent in 1955, not Rehnquist's memorandum to Justice Jackson on Plessy v. Ferguson preceding the decision in Brown.

So Jack's article is on the backburner while I wade through the 30 pages of this frontburner article as Brown v. Board of Education may resurface in the continuing battles of Originalism versus Non-Originalism, that may eventually lead to an Article V Convention.
 

I must profusely THANK Larry Solum for posting on a really great article on Rehnquist - and his views on Brown. This calls for a post by Sandy, who is noted as having reviewed and commented on an earlier draft of the article. And conspiracy theorists may have a field day with the suggestion that certain papers that may have been stolen from the Justice Frankfurter's Papers at the Library of Congress may have included "Rehnquist's Missing Letter." [The timing of the alleged theft and Rehnquist's nomination to the Supreme Court by Pres. Nixon might suggest to such theorists some connection.]
 

Randy Barnett's "sea of liberty" for him applies to the states too as shown by his (unlike Scalia and Thomas) strong support (if thinking it not going far enough) of Lawrence v. Texas. The "limiting principle" the anti-PPACA side strives to find (not liking many shown to them) works both ways.

Over at Volokh Conspiracy blog he also noted how amazing the PPACA was to him, even after he lost Gonzalez v. Raich. It was noted that the idea was put forth by his current fellow travelers years ago.

He is complimented for how much his advocacy influenced the argument. If such influence is guided by half-truths and hiding the ball (a principled application going much further than most wish to go), I find it "impressive" but not quite admirable.

I also would recommend the new book Flagrant Conduct, including its recognition of the path taken by the Supreme Court in that ruling:

" Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

No footnote to Jack Balkin?
 

"No footnote to Jack Balkin?"

Randy's article makes no mention of Jack Balkin in the text or in footnotes.
 

My reference to Balkin was in regard to the Lawrence v. Texas quotation I included in my last comment, not to Randy Barnett's writings. Thanks.
 

One of the interesting aspects of "Rehnquist's Missing Letter" is Rehnquist's view of Lochner:

1. "Rehnquist's memorandum argued that overturning Plessy's separate but equal doctrine would repeat the Lochner-era mistake of justices reading personal preferences into the Constitution." (page 2)

2. "Rehnquist's 1952 Term pro-Plessy memorandum did state some of Jackson's views--specifically, the Justice's belief belief in the Court's limited institutional role, his preference that it defer to majority rule, and his desire that it not treat the mistakes of the Lochner and early New Deal Era when justices read their personal views into the Constitution." (page 17)

3. Rehnquist attacked [in a September 1957 speech] Warren's credentials to be Chief Justice and accused the Court's liberals of 'making the Constitution say what they wanted it to say.' His criticism echoed his anti-Lochner warnings in his 1952 pro-Plessy memorandum to Jackson." (pages 18-19)

At hearings on his initial nomination as Justice and later Chief Justice, Rehnquist indicated the 1952 memorandum reflected Justice Jackson's views on Plessy, not his. But the article makes a strong case that the pro-Plessy view in the memorandum was Rehnquist's view, not Jackson's. Years later Rehnquist seemed to adopt Brown v. Board of Education as a sound decision, but perhaps reluctantly.

I don't know if David Bernstein's "Rehabilitating Lochner" makes reference to Rehnquist's apparent loathing of the Lochner era. Rehnquist seems to suggest that the Lochner decision contributed to the Warren Court, but in a negative sense, whereas Bernstein seems to credit the Lochner majority as being more progressive than the progressives of the Lochner era, in a positive sense, with the Warren Court's decisions (although Bernstein may not directly give credit to the Warren Court).
 

Per Andrew Koppelman's latest:

"Now, it has been clear for some time that the most articulate opponents of the mandate (who include such formidable intellects as Richard Epstein, Randy Barnett, and Gary Lawson) have just this in mind. They despise the modern state and want to blow it up."

They are running against the tide here (see again, Karlan and Barnett's debate, where RB was honest in saying that given his druthers, he would go much further). So was Rehnquist.

I note that Rehnquist did not always "defer to majority rule," including regarding affirmative action, campaign finance and one might say the election of the POTUS. Of course, then "the Constitution demanded it."

As to Prof. Bernstein, it is unclear what he would say, and unfortunately, he tends to be somewhat selective. In a recent Volokh Conspiracy post, e.g., he notes Judge Hand was not very supportive of free speech.

One might forget his Masses opinion in which he had a very friendly view of free speech, but was overturned by a higher court. The fact he, as a lower court judge, followed (misguided) precedent during the Red Scare, therefore is understandable.

I might have noted this over at his blog, but they have an annoying new facebook type comment system that I don't prefer.
 

Today's NYTimes (3/18/12) includes a "Campaign Stops" article by Jonathan Haidt "Forget the Money, Follow the Sacredness" in trying to understand/explain voters. The article is interesting in its position not to "follow the money" (self interest), rather sacredness (tribal behavior). But what struck me was this:

"Part of Reagan's political genius was that he told a single story about America that rallied libertarians and social conservatives, who are otherwise strange bedfellows. He did this by presenting liberal activist government as the single devil that is eternally bent on destroying two different sets of sacred values -- economic liberty and moral order. Only if all nonliberals unite into a coalition of tribes can this devil be defeated."

Randy Barnett in his rant "The Case for the Repeal Amendment" emphasizes "economic liberty.'' He is a libertarian. Over at the VC, there have been a number of posts on Koch versus Cato, with most of the VC's libertarians tearing their hair out that the Koch bros are suing, airing their dispute with Cato as it is presently being operated. These libertarians have no problem airing their disagreements with just about anything Pres. Obama does or does not do. Yet, they do not like the idea of airing intramural disputes at the Cato libertarian think tank. I would think it a fundamental principle of libertarians to assert rights. The Koch bros are asserting their rights. What's wrong with that? Or is it that at Cato it is the libertarians that are strange bedfellows? The devil, you say?

(Note: I follow VC and would occasionally comment, but not with the new system.)
 

I made the time yesterday to read in one sitting Jack Balkin's "Nine Perspectives on Living Originalism," responding to critiques of his new book "Living Originalism." It was a great read and it's 59 pages did not get boring. Of particular interest was that Jack devoted, in part II, 18 pages of what I would call a "smackdown" of McGinnis and Rappaport's critique. Also, in part IX Jack takes on Randy Barnett on the commerce clause in just over 7 pages.

The article introduced me to some new people and perhaps I may have time to read all of the critiques presented at the Univ. of Illinois Law Review when available.

But Jack left me up in the air with this line at page 142:

"It is like the old joke about baptism."

leaving it to my imagination to determine the old joke, or perhaps I missed the subtly of the context of this line.
 

Prof. Balkin alluded to the joke here a while back: "Like the old joke about baptism, I not only believe in it, I’ve seen it done."

http://balkin.blogspot.com/2003/05/high-politics-and-judicial.html

Another source:

"There's an old joke about a Southern preacher who's asked by a skeptical congregant if he really believes in infant baptism. "Believe in it?" the preacher replies. "Why, I've seen it done!"

http://www.slate.com/articles/news_and_politics/photography/2006/08/dont_believe_what_you_see_in_the_papers.html

Perhaps, it has more bite in fundamentalist or Baptist circles.
 

Here in the Boston area some baptisms would be conducted at public beaches, that would require some City of Boston approvals and preparations by Boston employees. I was told the story of a congregation holding such baptisms at Tenean Beach in the Dorchester section, with City of Boston employees waiting for completion so they could follow up and leave. As the tide was coming in, the preacher was intoning "We're coming to the water, we're coming to the water ... " as the baptisms proceeded ever so slowly (at least for the City of Boston employees anxious to leave). Finally, one of the employees blurted: "You better hurry up, the water's coming to you."

I wasn't there, but knowing Boston employees back when, I believe it.
 

On the Rehnquist letter:

http://www.nytimes.com/2012/03/20/us/new-look-at-an-old-memo-casts-more-doubt-on-rehnquist.html?_r=1
 

This comment has been removed by the author.
 

So "WICK[ard v Fil]BURN" made it to the front page of the NYTimes yesterday (3/20/12) with each side of the ACA brouhaha claiming it supports their position. WICKBURN's wheat, Raich's joints and ACA's health care, all part of the battle of Originalism versus Non-Originalism, soon to be heard by the Supreme Court, with highly anticipated play-by-play reporting over 3 days of oral arguments on ACA, perhaps to be set aside as unripe (and too politically hot right now?).
 

Prof. Balkin's "nine" article to me was a mixed bag. Good point as to looking at how the Constitution was in fact applied, the complications with determining original meaning and even a debate on WHO should determine it (the people perhaps?). This however weakens the whole enterprise of trying to find a liberal "originalism" and the need to write TWO long books on the theme (if with colorful covers, see the sidebar of this blog) sort of underlines the tediousness of the affair.

It was interesting to read him explain his "living originalist" approach but at some point I don't see the point of trying to find original proof that such and such text is a "principle" or a "rule" or whatever or exactly what "commerce" means. He had me at Marshall there.

He notes at one point that originalism is the path for "dark" times, for those who appeal to days of yore in dissent. Are we in dark times? He also honors Randy Barnett for being an important innovator leading to his approach.

To the extent this involves trying to count the angels on the head of a pin to show that originalism can work for liberals, instead of simply realizing that history is just one part of how to apply the text and on some level it is not determinative one way or the other, I don't think it is a net positive.

I appreciate Marty Lederman's long discussion of the PPACA case though honestly find the other side's arguments rather specious. 1/6 of the economy is clearly a matter of interstate commerce that Congress can regulate and even if one personally isn't using it, the insurance law deals with a matter that everyone is affected by in numerous ways as workers, employers, consumers and even simple residents of this country.

Six hours is a bit too much time but the opinions should be nothing if not verbose.
 

Much earlier in this thread, our yodeler responded to a comment of mine:

"Shag:

What is your fixation with Brown v. Board?"

That was before the article on "Rehnquist's Missing Letter: ... " surfaced, followed by the NYTimes column yesterday (3/20/12) by Adam Liptak "Memo Adds to Doubt On Rehnquist's Denials" that comments on the article (to which joe provided a link). How many others out there might share Rehnquist's view? And will they go public for the obvious political purposes.
 

Joe's comment on Jack Balkin's article includes this:

"He [Balkin] also honors Randy Barnett for being an important innovator leading to his approach."

But I don't think Balkin buys into Randy's "Restoring the Lost Constitution." Rather, Balkin felt the need to not look back so much as to go forward with his variation on originalism in a living mode. Balkin, in my view, felt the need to react to Randy's bumper sticker title (on the rear bumper, of course, right side).

Despite Balkin's efforts with "Living Originalism," I remain a skeptic on originalism. But his version is more palatable than Randy's and especially more than McGinnis and Rappaport's.

My only disappointment with Balkin's "Nine Perspectives ... " was his final section "X. The Audience For Living Originalism" chastising liberal constitutional scholars for not buying into originalism. But originalism has evolved in a rather short period of time and is still evolving. So perhaps a new book "Evolving Originalism" may be needed. Is there a legal Darwin out there?
 

Take a peek at the Legal History Blog's post today "Levinson to Lead ICH Summer Workshop." Perhaps in the heat of summer we can expects some lively posts by Sandy as the Workshop proceeds and whether it may excite an Article V Convention.
 

Well, I don't know how much to take seriously his "appreciation" of Barnett except that the original meaning of the non-"hard wired" stuff is so flexible that Balkin appreciates being able to co-opt originalism and have more fodder.

I think the article works best when it shows how -- beyond broad principles -- originalism doesn't really work. When it starts to get into the weeds, it gets tedious, though like reality programming, some might appreciate that sort of thing if you don't take it too seriously.
 

This comment has been removed by the author.
 

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