I have recently published a comment in the online Harvard Law Review Forum discussing a very interesting article by Columbia Law Professor David Pozen, in the hard-copy February issue of the Review, in which he analyzes the notion of "good" and "bad faith" constitutional argument. In my comment, I noted that Justice Scalia and, at least in Obergefell, Chief Justice Roberts basically impugned the integrity of those who disagreed with them, rather than admit the possibility that "good faith" disagreement about constitutional meaning was possible. I.e., the majority was not merely mistaken, but knowingly derelict in complying with their oath of constitutional fidelity. With Scalia, of course, that was nothing new. There is a reason that the Washington Post, in their early stories following news of his death, included one on his comments in opinions that made him the "king of sarcasm" on the Supreme Court.
I published a piece in this morning's Dallas Morning News, drawn in part from my Harvard comment, suggesting that Scalia had brought "trash talk" to the Supreme Court. As Daniel Farber noted in his contribution to a Politico symposium on Scalia's legacy, there was more than a bit of the Donald Trump in his approach to public rhetoric, not least because, like Trump, he was more interested in building a public movement than in "working well with others" on the Court. As Farber notes, Scalia bears his own responsibility for the nasty polarization that now characterizes almost all aspects of American political life (and often reflected in the tone of the comments offered on the Balkinazation discussion threads. In a Commentary symposium (scroll down and you'll find my comment) in 2003, I explicitly refused to criticize Scalia as being "unfaithful" to the Constitution and emphasized instead that he had a very different vision--I think a mistaken one--from the Constitution than my own. He did not, I think, accord the same courtesy to those who disagreed with him.
Antonin Scalia left a complex legacy, including some opinions I am happy to applaud. (I am less happy than Jack with the revival of originalism, not least because, as manifested in many of his own opinions, almost all judges, reflecting the (non-)training they received in law school, are incompetent as historians. But his legacy was indeed "complex," and one of the most important aspects was his propensity for "trash talk" and encouragement of his acolytes to take great pleasure in simply dismissing those on the other side.
I think the "trash talking" aspect cheapens the discourse on a civics level and will influence behavior as a whole. RBG, e.g., does a bit too much grinning at this as being charming, which ignores substantive problems. He has a Trump flavor there.
ReplyDeleteI also agree with you respecting the general idea that Scalia is not some unprincipled hack, basically illegitimately ignoring the Constitution as an active behavior etc. He is wrong on the merits. At times, yes, I think his reasoning process seems to suggest he simply isn't trying, but even there, it's basically hard to really know subjective intent. We have a good ability to fool ourselves.
Back in the day, Scalia took part in PBS aired panels of legal minds discussing constitutional matters. His openness to engage with the other side, spar with them, is appreciated. But, it is like a bad angel on one side of his shoulder pushed him to be a clown, a radio talk show hack, and that quality is a problem. I would dislike that even if I agreed with him more.
Perhaps a meta level disagreement, but sometimes the argument is over what constitutes good faith. And if you disagree with somebody about what it means to be acting in good faith, what are you supposed to do, pretend you think their understanding of it is correct?
ReplyDeleteI wish who were on the Supreme court mattered less, a lot less. But the blunt fact is, there's only two ways that can happen. Either we abandon judicial review, (And with it a constitution that's actually binding.) or living constitutionalism gets utterly repudiated.
You can't set up the nation's highest court as a perpetual nine man constitutional convention, empowered to ratify it's own amendments, and not make who is on it the single most important political question of all.
If you don't think people are in good faith, fine. Personally, I don't agree with you on the point as a whole on the facts, but no need to pretend or anything there.
ReplyDeleteLiving constitutionalism is a form of constitutionalism and some aspect of it has been accepted from the beginning. The "utterly repudiated" is an argument on THE MERITS, of what the Constitution actually says. So, e.g., "equal protection" of "persons" doesn't for some mean that. It means "if the law is racial" and the rest basically are okay unless they are blatantly irrational. Or, "what they understood was unreasonable in 1868." My version of the Constitution doesn't have that. Maybe, Nicholas Cage can help.
I don't think justices are doing the last part as a whole. I think on some issues, e.g., Shelby v. Holder, they misapplied the text. They were wrong on the merits but did not "utterly repudiate" it. They imho misapplied the text.
It goes beyond that. Living constitutionalism is the law, as accepted by 5 or more members of the Supreme Court at all times throughout history.
ReplyDeleteScalia acted as if his was the only correct reading of the Constitution and everyone else who ever served on the Court was an idiot.
In fact, he was disregarding settled precedent every time he made one of his BS originalist arguments.
See, we really do disagree about what constitutes good faith. And that's my disagreement with Sandy: When you disagree with somebody on that level, to treat your disagreement as a regular disagreement over facts or reasons is to pretend that the more fundamental disagreement doesn't exist.
ReplyDeleteWe really don't agree on that level. Originalists don't think living constitutionalism is a "mistake". That's like treating a bank robber as the equivalent of somebody who makes a math error on their withdrawl slip. We think living constitutionalism is fundamentally illegitimate.
That it's bad faith.
There's not really any good reason to pretend otherwise.
Originalists come in all shapes and sizes & yes, quite a few think living constitutionalists are wrong on the merits without being like a bank robber. To be like the bank robber, the LC has to KNOW THEY ARE WRONG but still do it.
ReplyDeleteThe mistake on the slip is an honest mistake. That is where the "good faith" comes in. Now, maybe you are using words in special ways. I think Sandy Levinson is using it to be mean "honesty or sincerity of intention." A bank robber doesn't have that. The bank robber intentionally breaks the law. It isn't that they are dim bulbs or something who are wrong about what the law means.
Words have meanings. Difference, even deep differences on let's say God or abortion, is not the same thing as bad faith. As to Dilan Esper's response, Scalia push comes to shove wasn't like the caricature of himself that he put out there at times. He realized precedent etc. mattered. It was a matter of scope and degree.
I agree, living constitutionalists don't think of themselves as engaging in bad faith. Because they have a different conception of what would BE bad faith.
ReplyDeleteIt's more like somebody who doesn't believe in private property, as contrasted to a thief. The thief understands himself to be taking what is somebody else's, the person who rejects the concept of property does not.
Living constitutionalists, fundamentally, have rejected as meaningful something originalists consider fundamental to constitutions, more generally to text: Fixity of meaning. The notion that a text can mean something, continue to mean something, independent of the desires of those reading it. They're not, on a fundamental level, even engaged in the same thing as originalists. It just looks like the same thing from the outside.
And yet, rejecting what originalists consider central to the whole enterprise of interpreting texts, they are committed to regarding originalists as engaged in the same thing they are.
The conflict between living constitutionalists and originalists is deeper, more fundamental, than any particular disagreement about this or that clause. It's about what it means to "interpret" at all.
It's one of Sowell's conflicts of vision, I think.
Brett, all you need to do to be a living constitutionalist is to follow current Supreme Court precedent.
ReplyDeleteFor instance, I assume you don't like Obergefell. But whether or not the Constitution mandates gay marriage, all you need to do to reject the approach of Scalia and the originalists is to note that Lawrence and Romer were controlling precedents. Those cases already held that the Due Process Clause extended rights to same-sex couples and rejected, definitively, Scalia's position that the original understanding was binding.
So what you are arguing is that someone who FOLLOWS CONTROLLING PRECEDENT is acting in "bad faith". Sorry, it doesn't work that way. You really have no understanding of the common law tradition, which is as much a part of the Constitution as any of the things you want enforced.
I've observed before, and will doubtless again, that law is the only field I know of where, once a mistake is made, there is supposedly an obligation to keep making it.
ReplyDeleteTrash talking is taunting an opponent during a contest to get into his head and throw off his game. In contrast, Scalia very justifiably took his progressive colleagues to task for violating their oaths and erasing or rewriting the law under the guise of review.
ReplyDeleteA good faith disagreement over judicial review is having different takes on some vague or contradictory passage of text. In sharp contrast, justices who erase or rewrite express provisions of law are neither acting in good faith or qualified to be jurists.
The jurists who held that the 2A command "the right of the people to keep and bear arms shall not be infringed" actually guaranteed the right of states to form a militia; that the Obamacare individual mandate was both a fine and a tax, that the Obamacare statutory phrase "exchanges established by states" actually meant "exchanges established by states and the federal government," and that the express grant of districting power to state legislatures actually extended to unelected commissions were not in any meaning of the term acting in good faith. These jurists were acting in bad faith or cowardice to exercise an amending or legislating power they did not possess.
Scalia was not perfect in his own adjudications, but he was the only justice with the integrity and courage to call out these outlaw acts.
RIP after a life well lived.
I've observed before, and will doubtless again, that law is the only field I know of where, once a mistake is made, there is supposedly an obligation to keep making it.
ReplyDeleteReally? You've never heard of a business which decides not to reverse a pricing error in an advertisement, because customers are relying on it? How about songwriting, where Paul McCartney left a nonsense lyric in "Hey Jude" because John Lennon said it was the best part?
There's plenty of instances where, for reasons of reliance or continuity, a "mistake" is not corrected.
At any rate, the bigger problem with you and Bart is that YOU TWO IGNORE THAT THE ACTUAL CONSTITUTION REFERENCES THE COMMON LAW TRADITION!!!!!!!! In other words, the very document you two claim to worship explicitly says "Bart DePalma and Brett are completely wrong!".
Following precedent is part of American law, and was reflected by the framers. In the face of a controlling Supreme Court precedent, the opinions of Bart or Brett as to what the Constitution means are completely irrelevant.
And no, that doesn't make the Supreme Court dictators in robes. Justices can still be impeached, and they can still be replaced, and they still have to justify their judgments with reasoned opinions. And the Constitution can be amended as well.
The framers' stated intention was "don't listen to Bart and Brett, they're idiots and don't get to say what the Constitution means".
Very good point about the non-training of lawyers as historians. Had to explain the constitutional debates on advise and consent from 1787 to a lawyer today who just did not understand how the Senate rules of confirmation came into existence or that they even had rules to begin with. Very frustrating.
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ReplyDeleteThe Supreme Court is a political institution with a veneer of pomp, the pomp being the highest expression of self-important complacency in our system of government. The court's greatest role is to keep the peace among competing parties all of whom are assumed to agree about the most important things. It's taken for granted that the justices aren't the brightest minds among their peers, but given their responsibilities no one wants a dim bulb on the bench.
ReplyDeleteIn times of crisis in the country and among the elite the pomp rings hollow; the equanimity fades. Everything about life is less formal than it used to be, so now the public face of politics is closer to the private. Trash talk isn't a problem if it's incorporated into the play of the game, but what else is Sanford Levinson defending? A call for a constitutional convention now is close to a call for civil war. I'm not sure he's any less out-to-lunch than Scalia was at the end.
Scalia was a Catholic reactionary, and hypocrisy has always been an accepted part of Catholic practice for the powerful. St. Paul was explicit. Scalia's importance is in the power of his position, not his mind.
https://www.youtube.com/watch?v=Pr40kbqW03k
"[T]he issue was simply whether carbon was an environmental pollutant or not, and I did not think that it was ever regarded as that. It is not the Atmospheric Protection Agency it's the Environmental Protection Agency. And it has always been thought to have authority only to control the environment and not outer space."
He did an idiot. But for all that, if the center will not hold I blame the center. It's their hypocrisy that leads the way to disaster.
And Balkin's move towards originalism was strategic, to absorb originalism into a broader doctrine of a living constitution. Smoove... but the whole process is absurd. Language is a living thing. We don't write S's as F's and haven'e for a long time.
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ReplyDeleteDylan:
ReplyDeleteBy definition, a written constitution which grants all legislative power to Congress and amendment power to Congress and the States precludes the British tradition of constitution by common law.
This is why judges swear or affirm that: "I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States."
"Smoove... but the whole process is absurd. Language is a living thing. We don't write S's as F's and haven'e for a long time."
ReplyDeleteLanguage is a living thing, but if you want to know what something written at an earlier time means, you have to use the language as it was when it was written.
That, essentially, is the difference between living constitutionalists and originalists. Originalists think their job is to understand what the document means. Living constitutionalists don't care to know what the Constitution means. They're determined to GIVE it a meaning they like.
Seriously, have you noticed that living constitutionalists never say that the document has evolved in directions they don't like? No living constitutionalist is going to say that the meaning of the birthright citizenship clause has changed if Trump gets elected.
Because living constitutionalism isn't about finding meanings. It's about imposing them.
"Living constitutionalism" is a spin term for rule by decree and dispensation.
ReplyDeleteThe English developed their constitution over time to stop their kings from exercising these absolute powers.
Progressives imported an even more absolute system of rule from Prussia and gutted our Constitution to impose it on the United States.
Progressives imported an even more absolute system of rule from Prussia and gutted our Constitution to impose it on the United States.
ReplyDelete# posted by Blogger Bart DePalma : 10:26 AM
You morons realize that we still have elections, right?
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ReplyDeleteBB:
ReplyDeleteWe are discussing Scalia taking his colleagues to task for unconstitutionally taking from our elected Congress and state legislatures and exercising legislating and amending powers.
Try to keep up.
Mark Graber's comments are a tad harsh but has a lot of truth to it.
ReplyDeleteI respect someone like Justice Breyer more independent of his judicial ideology generally because he understands he is making judicial value choices. People sneer at him for doing what Scalia et. al. do sub silento, as they say.
Don't think a strong judiciary and judicial value choices are wrong or even avoidable, but it is a bit rich when people sanctimoniously rail against others for doing what they do. "Bad faith" turns out to be a strong difference of opinion, like those who don't believe in the right sort of God/god are "immoral" since only "believers" can be "moral."
BTW, "Dylan" might not be the right name.
Joe:
ReplyDeleteBad faith is rewriting and erasing provisions of the Constitution and U.S. Code under the guise of interpretation.
English Kings and their appointed courts used to do the same exact thing before Parliament stopped them with a civil war and by enacting the English Bill of Rights of 1689.
With this history in mind, our Constitution expressly grants all power to legislate and amend to Congress and the States, thus denying these powers to the judiciary.
Try to keep up.
ReplyDelete# posted by Blogger Bart DePalma : 11:37 AM
I'm keeping up just fine, sparky. You realize that we have elections, right? Nothing is being "imposed".
ETA: When Scalia wasn't in right wing radio mode, he kinda said the same thing, at times. For instance, various judicial policy choices for his approach was put forth in his writings and speeches. But, since he encouraged a simplified view of his views, it was in large part his own fault that people put forth a caricature.
ReplyDeleteBy definition, a written constitution which grants all legislative power to Congress and amendment power to Congress and the States precludes the British tradition of constitution by common law.
ReplyDeleteI don't know what dictionary you are looking at, but the Constitution specifically references the common law in its text, and there is no doubt that the framers expected that the common law tradition would be used in determining what the Constitution means. In other words, what you call living constitutionalism WAS the original understanding.
And that doesn't make the Constitution "not law" in any sense, any more than our common law tradition on contract law or in interpreting statutes is "not law".
And of course, the fact that the framers expected that there would be a common law tradition in American jurisprudence refutes all claims by Bart and others that liberals are intepreting the Constitution "in bad faith".
ReplyDeleteThis is the way stupid people argue. Declare that a complex problem MUST have one right answer, and then declare anyone who sees nuance as "unprincipled" and "acting in bad faith". It sure beats actually having to use your brain to grapple with the complexities.
Thankfully, there's never been a majority of such idiots on the Supreme Court. Note that Roberts and Alito, for all my problems with them, reject it too.
Dilan: "the Constitution specifically references the common law in its text"
ReplyDeleteCan you give me an Article, Section and Clause so I know to what provision(s) you are referring?
I do not recall ever seeing the term "common law" itself in the document.
"Declare that a complex problem MUST have one right answer, and then declare anyone who sees nuance as "unprincipled" and "acting in bad faith". It sure beats actually having to use your brain to grapple with the complexities."
ReplyDeleteWell described. The bad faith position of Brett and Bart is ridiculous. They see everything simply in black and white and so any who read things differently is evil or dishonest.
Constitutions and laws are written in ways that leave them even more ambiguous than most other legal documents such as wills and contracts, but look how much litigation goes on over the provisions in the latter. The problem isn't so much evil in the hearts of their foes, but that language is complex, indeed the world is so.
"By definition, a written constitution which grants all legislative power to Congress and amendment power to Congress and the States precludes the British tradition of constitution by common law."
ReplyDeleteBart acts like we live (or should live) in a civil (Napoleonic) legal tradition rather than a common law one. Talk about exporting absolutist traditions from Europe!
He's a classy guy. He wants to be civil, not common.
ReplyDeleteBart:
ReplyDeleteCheck the Seventh Amendment, as a starting point....
Dilan:
ReplyDeleteOK, I'll bite. What does the right to a jury in civil suits have to do with Articles I and V granting the legislating and amending powers solely to Congress and the States, and thus denying them to the judiciary?
BD: "By definition, a written constitution which grants all legislative power to Congress and amendment power to Congress and the States precludes the British tradition of constitution by common law."
ReplyDeleteMr. W: Bart acts like we live (or should live) in a civil (Napoleonic) legal tradition rather than a common law one. Talk about exporting absolutist traditions from Europe!
The founders were following the precedent of the Magna Carta and English Bill of Rights in drafting a constitution which expressly barred the French and Prussian exercises of absolute power by a king and his regulatory bureaucracy.
In making my morning rounds of legal blogs, I note that the Legal Theory Blog has a post on Stephen Gardbaum's oomment "Constitutional Bad Faith" on Prof. Pozen's article. I plan to read this comment later today. It is my understanding that "good faith" and "bad faith" are legal terms, not quite the same as how a layman might use them. The UCC came about several years after I finished law school. In reviewing the UCC back then and since these terms are emphasized and addressed in decisions and legal commentary extensively. In fact, the UCC commentary on these terms was extensive from day one.
ReplyDeletePerhaps Prof. Pozen's article may produce comments in addition to those of Sandy and Gardbaum.
As to "trash talk," like pornography, I know it when I hear/read it. And one politician's trash talk is another politician's fortune. To paraphrase the Mayor of Chicago in an earlier life, "Never let an untimely death go to waste." Eventually we get the conspiracy theorists. Stir this into the cauldron of political dysfunction during a presidential campaign, bubble bubble, toil and trouble.
Bart, you've actually answered yourself in this discussion. The Founders were British colonists familiar with British legal history and institutions. They were aware that the Magna Carta and the English Bill of Rights did not supplant the common law system, and in following that tradition in enacting the Constitution they intended no different (as recognized by a provision like the Seventh Amendment which Dilan notes).
ReplyDeleteMr. W:
ReplyDeleteNeither the Magna Carta nor the English Bill of Rights granted the common law courts the power to amend their limits and guarantees.
Section V of our Constitution removed any doubt on this issue by expressly granting amendment power to Congress and the States, impliedly barring the courts from amending the Constitution by common law.
"Neither the Magna Carta nor the English Bill of Rights granted the common law courts the power to amend their limits and guarantees."
ReplyDeleteThe common law continued to be applied after each, no one understood either document to be supplanting the common law, in fact they reference the common law existing at the time (see sections 39 or 45 in the Magna Carta). The courts ('justices') were expected to enforce and apply the charters. The Founders, as you yourself say, drew upon this tradition (and they also referenced the common law in their Constitution, indicating it would carry on alongside it). They anticipated there would be disagreement about the provisions of the Constitution and laws and they set up a judiciary, working in the common law tradition, to resolve those 'cases' and 'controversies' by applying the law.
Mr. W:
ReplyDeleteRed herrings.
The existence of common law in Anglo American law or the 7A guaranteeing jury trials in civil cases in no way changes the facts that you keep tap dancing around: Articles I and V expressly grant legislating and amending power to Congress and the States.
The folks who drafted and ratified the Constitution most definitely were not granting either power to the judiciary.
Query: Does Article III impose restrictions on the judiciary with respect to the common law?
ReplyDeleteThey're not red herrings nor tap dancing. You were the one that pointed to the Founders following in the tradition of the Magna Carta and the English Bill of Rights, I pointed out that that neither were thought to have supplanted the operation of the common law.
ReplyDeleteYou're moving now to a more narrow argument about the Constitution. The Constitution anticipates that there would be disagreement about it's provisions and other federal law and expressly sets up a judiciary to solve those and decide how the law applies to cases and controversies, that judiciary was expected to operate as common law courts.
"Query: Does Article III impose restrictions on the judiciary with respect to the common law?"
ReplyDeletehttps://www.law.cornell.edu/constitution/articleiii
Guess it depends one what "impose restrictions" means in this context. There are certain guideposts set forth in Art. III (such as a narrow definition of treason that is more restrictive than common law -- cf. reference to "bribery" in the impeachment clause without definition) that might be deemed to do that.
Shag:
ReplyDeleteDo you recall the Erie Doctrine? Article I's grant of all legislative power to Congress generally prohibits federal courts from creating common law. The courts have created some narrow exceptions which Congress may reverse by statute.
Mr. W:
The Magna Carta and the English Bill of Rights established precedent for our Constitution by limiting executive power and guaranteeing some rights in a written document. The British common law courts long predated the MC/EBR. Neither document created these courts or established their powers.
Our Constitution was a far more ambitious project in that it created a system of government from scratch, limited the powers of the federal government, and added a bill of rights to guarantee individual liberties.
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ReplyDelete"The British common law courts long predated the MC/EBR."
ReplyDeleteYes, and postdated them as well. That's the tradition the Framers knew and worked from.
"it created a system of government from scratch"
No, that's not quite true, it heavily borrowed from the pre-existing legal and governmental institutions from where the colonies came.
None of what you wrote though is responsive to my point that the Framers worked from the common law tradition and expected common law courts to interpret and apply the law (Constitution included).
The way of applying and interpreting the Constitution and law you're advocating is, ironically, incredibly similar to that of Bismark and Napoleon's Code based system.
It is just informative, of course, but in honor of his Grammys win, Federalist 78 comes to mind. Hamilton assumes normal common law rules will be used by federal judges (citing at least one) and:
ReplyDelete"To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them."
He also explains how this doesn't "by any means suppose a superiority of the judicial to the legislative power" or some power to amend the Constitution. They have the power to interpret and this includes usage of common law with constitutional text providing rules for the courts to apply as compared to a more open-ended approach (e.g., "due process" might be applied by the courts but the document enumerates various specific things that limits their discretion ... see also, the definition of treason etc.).
http://www.constitution.org/fed/federa78.htm
An important aspect of the functioning of the judiciary as a common law system is the issue of interpretation. We can leave aside substantive issues for the moment.
ReplyDeleteThe Constitution doesn't say how it is to be interpreted. Any principle of interpretation therefore must come from outside the document itself. The debates in Congress show that the Members used various common law rules of construction/interpretation in making their arguments on contested issues, so they obviously expected that.
An obvious example would be the President's power to remove officers. The Constitution is silent on the issue. When it was debated in June 1789 -- about as early as possible -- there were lots of arguments on either side. Here are some examples:
1. William Loughton Smith relied on the principle of inclusio unius: "Examine the constitution; the powers of the ... branches of Government are there defined; the President has particular powers assigned to him... but you will find no such power as removing from office given to the President. ... Now, I infer from this that, as the constitution has not given the President the power of removability, it meant that he should not have that power; and this inference is supported by that clause ... which provides that all civil officers shall be removed from office on impeachment.... Here is a particular mode prescribed for removing; and if there is no other mode directed, I contend that the constitution contemplated only this mode."
2. Madison made a structural/textualist argument: "The question now resolves itself into this: Is the power of [removing] an executive power? I conceive that if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws." Note that Madison relied here on a concept of the "executive power" which isn't stated in the Constitution itself, but must be found elsewhere.
3. John Laurance made a quasi-textualist argument that relied on other sections of the Constitution (i.e., he used a common law principle that the document must be interpreted as a whole): "The constitution declares that the judges shall hold their offices during good behavior. This implies that other officers shall hold their offices during a limited time, or according to the will of some person; because if all persons are to hold their offices during good behavior, and to be removed only by impeachment, then this particular declaration in favor of the judges will be useless."
4. Roger Sherman made an argument based on general legal principles: "It is a general principle in law, as well as reason, that there shall be the same authority to remove as to establish. It is so in legislation, where the ... branches whose concurrence is necessary to pass a law must concur in repealing it. Just so, I take it to be in cases of appointment...."
As these examples show -- there are more but I don't see any need to quote them all -- common law principles and standard legal reasoning were the techniques used by all sides to the debate.
Some think there's something eerie about Erie v. Tompkins:
ReplyDeletehttps://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=39+Pepp.+L.+Rev.+129&srctype=smi&srcid=3B15&key=9cea657ec5f33fcef82f7befa6adc34b
There is a distinction, is there not, between the historical common law and whether there is a "federal common law"?
Query: To what extent does the common law come into play with respect to self-defense in the context of Heller (5-4, Scalia, J) and the 2nd A?
ReplyDeleteQuery: Was Erie an example of originalism?
Query: What effect did Erie have on the Court's prior decisions that employed common law? Were they overruled?
Check out:
ReplyDeleteThe New Originalism: The Emergence of the General Common Law, by Mike Rappaport
http://www.libertylawsite.org/2015/08/10/the-new-originalism-the-emergence-of-the-general-common-law/#sthash.05FTMV0R.dpuf
There seem to be some differences within the family of originalism.
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ReplyDeleteMark:
ReplyDeleteExcellent post.
The most important thing to note from your post is that every founder applied various techniques of textual interpretation to determine whether Article II's general grant of all executive power to the President included the power to remove officials.
No cherry picking of favorable original intent from some individual involved in the drafting and ratifying of the Constitution.
No sophistry attempting to expand principles from the Constitution broadly enough to justify the proponents preferred policy outcome.
Most definitely nothing about a living constitution allowing judges to rewrite to conform to modern progressive sensibilities.
Just a good faith attempt to determine what the text allows.
Now compare the founders' analysis to Justice Kennedy's exceedingly bad faith exercise in metaphysics and pop psychology in Obergefel to redefine marriage by judicial decree.
http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf
The comparison is utterly damning.
Mark my words. Mark Field might disagree a tad with the last comment.
ReplyDeleteAs I've said here before, I don't read Bart's comments. That I would disagree if I did read it seems like a safe assumption, though.
ReplyDeleteReally emblematic of the difference I see between conservative and liberal blogs, and blog commentors. Liberals have this remarkable tendency to refuse to engage people who disagree with them, and, even more remarkable, think it a virtue and a source of strength, rather than the weakness it really is.
ReplyDeleteThat, I think, is the main reason the right is doing as well as it is in American politics. The habitual refusal to engage with people who genuinely disagree has enfeebled the left's capacity to preach to anybody but the choir.
I see that difference too, but it points the opposite direction. The term "epistemic closure" was coined to apply to conservatives for a reason. And it wasn't coined by a liberal.
ReplyDeleteIn any case, it's an odd comment to make about me, given the amount of time I spent at Volokh and spend here and elsewhere discussing issues with conservatives.
And "discussing" is the key point. I make calls based on individuals. I interact with you, though I disagree on almost every issue. That's because although you're consistently wrong, you make honest arguments. If someone proves they don't make honest arguments, I stop reading them.
"That, I think, is the main reason the right is doing as well as it is in American politics. "
ReplyDeleteThe *main* reason the right is doing as well as it is in American politics, if you can call losing the popular vote in four of the last five Presidential elections 'doing well,' is stronger turn out in low turn out contests and gerrymandering.
"The comparison is utterly damning."
ReplyDeleteYou're just being ridiculous and somewhat proving Mark's point to Brett.
It's one thing to think Ogerfell was wrongly decided. I certainly think the opinion was far less than ideal. But given that the Court recognized marriage as a fundamental right waaaay back during one of the most Conservative courts we've had, and then applied the right in striking down bars on prisoners and deadbeat fathers marrying, it's not like the application of the right to strike down a bar to homosexuals marrying came out of nowhere.
Brett says the left has a problem with 'engaging' with the right. But when the right seems to only 'engage' by saying everyone that disagrees with them is being evil and/or dishonest traitors what kind of 'engagement' are they offering?
Not engaging with him being "really emblematic" of that might be a new level of one-sided anti-ideological side comment. Not even anti-liberal. In general.
ReplyDeleteOK, I'll bite. What does the right to a jury in civil suits have to do with Articles I and V granting the legislating and amending powers solely to Congress and the States, and thus denying them to the judiciary?
ReplyDeleteWhy would the Constitution specifically mention suits at common law if they didn't expect the courts to operate under that system.
That strongly suggests that the "judicial power" in Article III was the same judicial power that the British courts had under the common law system (and this is consistent with several provisions of Article III as well). Which would mean, in turn, that court decisions rejecting Bart DePalma's opinions about the meaning of the Constitution are binding law, and that Bart DePalma's opinions about the meaning of the Constitution are irrelevant and are supposed to be ignored.
"if you can call losing the popular vote in four of the last five Presidential elections 'doing well,'"
ReplyDeleteYou can, when there's this thing called "the Electoral College". You don't brag about winning by the rules of rugby when you're playing lacross; Republicans are batting about 50% when it comes to the Presidency. Current polling has Trump, Cruz, or Rubio beating Hillary, and both Trump and Rubio beating Sanders, with it a near thing for Cruz. I don't think the polls have huge significance at this point, but that does suggest you shouldn't yet be scheduling the victory lap. There's every chance that, come next year, Republicans will control the Presidency and both houses of Congress, and Democrats will just be totally frozen out of governance at the federal level.
I wonder, do you think it's doing badly to control most state legislatures, Governorships, the House of Representatives, AND the Senate? Face it, having the Presidency is so important to you because you don't have either house of Congress, and getting a majority on the Supreme court is important because you've got little hope of changing that. The court is your backstop to minimize the damage from losing elections.
"But when the right seems to only 'engage' by saying everyone that disagrees with them is being evil and/or dishonest traitors"
"Racist!" "Homophobe!" "Nativist!" That people who disagree with the left are evil idiots is the default position. The chief difference between the left and the right can be seen in the comment threads of blogs and forums: The right doesn't ban people for disagreeing. The left does.
Right at this very moment Twitter, run by people on the left, is banning people and deleting comments at a furious pace, and it's not the left that's being censored.
Article I's grant of all legislative power to Congress generally prohibits federal courts from creating common law.
ReplyDeleteMy federal courts professor, John Calvin Jeffries (who clerked for Powell), just failed you, Bart.
Erie doesn't stand for the proposition that there is no federal common law, but that there is no "general" federal common law. There's a big difference.
There's plenty of federal common law. Ever heard of Admiralty? Habeas corpus? Attorney-client privilege?
And, of course, Erie doesn't reject even general common law-- it just requires that it be imported from the states.
People on the right call the left names all the time on blogs and block people on Twitter (I have been blocked, e.g., by a right leaning media personality -- amusing -- for one negative reply) as well. To the degree Twitter itself has policies that block/delete things, it also isn't one-sided to that degree.
ReplyDeleteIt is not that the left doesn't have their Shags and BartBusters. I have been called a woman hater for not being pure enough on abortion. It is the silliness that somehow the left is not only more likely to do that (I'm with Mark Field on that myself, but I'm self-interested) but that they do it so much more.
That's just silly. It's also wrong, but it's also silly.
To get back to the interpretive issue, the debate over the presidential removal power really is a fascinating one for purposes of how they reasoned about the problem.
ReplyDeleteWell, it's fascinating if you're kind of a geek...
This comment has been removed by the author.
ReplyDeleteIn my comment, I noted that Justice Scalia and, at least in Obergefell, Chief Justice Roberts basically impugned the integrity of those who disagreed with them, rather than admit the possibility that "good faith" disagreement about constitutional meaning was possible. I.e., the majority was not merely mistaken, but knowingly derelict in complying with their oath of constitutional fidelity.
ReplyDeleteBad faith like this, Sandy?
Eric Posner predicts-- correctly, I think-- that if the Democrats succeed in replacing Justice Scalia with a liberal Justice, there will be a sea change in liberal constitutional argument:
[T]he various theories of judicial restraint (that is, deference to precedent) advocated in recent years by a number of liberal law professors will instantly lose their appeal. Judicial restraint would simply consolidate conservative precedents at a time when liberals finally have the opportunity to reverse hated decisions like Citizens United and Heller. Look for a revival of Elyish theories that claim that the political process fails women, gays and lesbians, African-Americans, criminal defendants, poor people, and other vulnerable minorities (or, in the case of women majorities). Look for more arguments, adumbrated by essays in this book [The Constitution in 2020], that liberal or progressive values have been incorporated into constitutional norms via historical, sociological, and intellectual processes. (The authors of the book may have been unduly pessimistic, from their own standpoint, in picking 2020 as the year of constitutional change.)
It is the mark of an educated mind to be able to entertain a thought without accepting it.
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