Balkinization  

Thursday, April 28, 2016

Constructing Constitutional Authority

Gerard N. Magliocca

Governor Greg Abbott of Texas is in the news again.  After endorsing Sandy's project of calling for a constitutional convention, he recently spoke at an event on the state's challenge to the President's plan on illegal immigration and said that he "double-dare[d] the United States Supreme Court to reduce the Bill of Rights to the first nine amendments." Setting aside the language on double-dares (is raising that a triple-dare or a double-double-dare?), one interesting question his statement raises is this: How do we know that the Bill of Rights consists of the first ten amendments.

This is one of the issues that I'm writing about in my next book (now very much in progress), and it is  fiendishly difficult.  Some Court decisions and commentators said that the Bill of Rights was the first ten amendments.  Others said that the Bill of Rights was only the first eight amendments.  And one Supreme Court case from 1904 did say that the Bill of Rights was only the first nine.  Some of this reflects disagreement on the importance of the Tenth Amendment and some of this reflects a similar disagreement on the status of unwritten rights pursuant to the Ninth Amendment.

Why then do we all think (as I think we all do) that the Bill of Rights is the first ten amendments?  Not because the text says so.  And not because there is clear case law or history saying so. Notable people who said that only the first eight amendments were the Bill of Rights include Justice Hugo Black, Judge Learned Hand, and John Bingham (though not consistently), who are hardly chumps.  Moreover, if you go to the National Archives to see the copy of the Bill of Rights that sits alongside the Declaration and the Constitution under glass, what you see are 12 amendments--the twelve that Congress proposed in 1789.  So was there a particular moment or person that settled the question.  The answer may surprise you--I'll save that for another post.



 

Comments:

Gerard:

Because the first ten amendments were ratified together in response for a demand for a "bill of rights," what would be the argument for saying that only some of the amendments are part of that bill of rights?

One of the federalist arguments against the necessity of a bill of rights was that the Constitution already expressly limited federal power and thus implicitly reserved all other powers to the states and the people. Thus, it would be strange to remove the Tenth Amendment, which made that implication explicit, from the resulting Bill of Rights.
 

Count me among those who don't include the 10th as part of the BoR. States don't have rights, they have powers. Only people have rights. The text of the amendment itself reflects this distinction, as it refers only to "powers". Including it as part of a Bill of Rights makes no sense textually and leads to some fairly pernicious confusion by the likes of Greg Abbott.
 

So, what you're saying is that YOU want to reduce the Bill of Rights to just nine amendments?

But, you know, even if we were to arbitrarily declare that the Tenth amendment wasn't really part of the Bill of Rights, it would still be part of the Constitution. And as such, the highest law of the land.

So, it doesn't really matter, legally, does it? "Removing" it from the Bill of Rights wouldn't really mean anything.
 

Mark: That's a fair point, but a bit pedantic in as much as all ten of the initial amendments have been referred to as "the bill of rights" for, oh, about two centuries.

The contrary argument is, of course, that even the 10th amendment represents an indirect protection of rights.
 

"Only people have rights."

The 10A includes a reference to people. Likewise, "the states" don't act as inanimate objects. People govern there in state entities. Next, ultimately, the difference between "powers" and "rights" (see also, "privileges" being understood to mean "rights") in the long term is weak. Voting in referendum is something the 10A in part protects (a way for "the people" to directly rule) and that is sometimes seen not only as a "power," but a type of "right."

And, yes, the 10A is a declaratory reminder, "expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses," to protect rights by guarding against overreaching by the federal government. http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

So, it's appropriate to include it in the "Bill of Rights." Plus, confusion will be brought including by those who don't seem to have read the 10A or move past the text for some general ethos that means what they think it means.
 

With Spring in the air, wafts of "A rose by any other name ... " comes to mind. We need not make a big megillah about this. Going back in history, we have the Ten Commandments and the significance of the minyan. The Framers/Ratifiers knew the Old Testament as they whittled down from 12 to 10 Amendments. (This is an extension of Mel Brooks on the Ten Commandments and originalism.)
 

Brett's point that I'm being a bit pedantic is fair, but continuing in that vein:

1. The 10th does refer to people, but only in the context of "powers", not in the context of rights.

2. When people act collectively to make laws, e.g., by initiative to pass a law outside of the legislature, they are exercising power. Each individual voter, of course, has an individual right to vote which can be enforced against the state. In general, when people speak of "rights" in this context, they mean an enforceable claim against the "power" of the state.

3. The existence vel non of collective rights is a matter of dispute, but in my view they do exist in cases such as the DoI's "right of the people to alter or abolish it". In practice that's also an exercise of power, in most cases, but I read the DoI as expressing the republican/Lockean view that rightful sovereignty rests ultimately in the people.

4. Obviously the 10th remains part of the Constitution either way. What meaning or application it has is a separate topic which I'll leave for another day.
 

"A bit"

Maybe two bits?
 

In this case, all eight bits would not be too conservative an estimate. You know what they say: In for a duo-decimal, in for a dollar.
 

Of course the first 10 Amendments (aka "a" bill of rights, sometimes "The" Bill of Rights, in part or in whole), do not specify the people who have the right to vote or the people who don't have the right to vote. Nor does the rest of the Constitution prior to the Reconstruction Amendments specify the people who had and those that did not have the right to vote. Nor did the DoI. In fact, some have pointed out that the Constitution does not spell out specifically a right to vote. There were certain practices in place at the time of the Framing/Ratification of the 1787 Constitution on who could vote. The Reconstruction Amendments plus the 19th Amendment reference voting implicitly indicating a right to vote and not to deny voting to persons on certain grounds. All citizens do not have the right to vote. My point is that the first 10 Amendments involved rights and/or powers but no specification of the right to vote and by whom. And there are issues today making it difficult for some to vote.
 

The English Bill of Rights of 1689, which was the model which advocates of our bill of rights were using, included several separations of and limitations on government power.

http://avalon.law.yale.edu/17th_century/england.asp
 

Here's some reading material on my comment:

JSoros and Schmitt's "The Missing Right: A constitutional Right to Vote" available at:

http://democracyjournal.org/magazine/28/the-missing-right-a-constitutional-right-to-vote/
 

"My point is that the first 10 Amendments involved rights and/or powers but no specification of the right to vote and by whom."

The Constitution to me implicitly speaks of a "right to vote" for at least some people, including given the understanding of the Guarantee Clause. There was a debate on who should have right to vote, but "Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature" was generally understood to entail some right to vote.

The true meaning of a proper enjoyment of the Guarantee Clause, the Equal Protection Clause etc. has developed over the years. Harper v. Virginia Bd. of Elections: "Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change." The implicit nature has made it easier to burden voting rights, including by 485 page court opinions (see Election Law Blog on recent opinion out of North Carolina / NYT criticism this week).

This implicit right -- which per the 9A we should protect -- is partially defended by the 10A. Other rights to vote included on juries and for inferior officers in the militia.
 

The mixture of explicit (the Art. 1 provision etc.) and implicit rights to vote does a lot of work, but ala Gov. Abbott, a general amendment to explicitly protect the right to vote more (including, e.g., for Puerto Rico to vote for President) would be something I'd consider useful.
 

Rather than hold my breath in anticipation for Gerard's:

" So was there a particular moment or person that settled the question. [sic] The answer may surprise you--I'll save that for another post."

Rather, I'm more interested in how the first 10 Amendments were instrumental in actually implementing rights/powers designated therein. Not much too place at the level of the Supreme Court until the Warren Court. (More on that in a later comment.) Let's jump ahead to the present.

Today's NYTimes includes an OpEd by Zephyr Teachout "There's No Such Thing as a Free Rollex" on the recent orals at the Court on former VA Gov. Bob McDonald's conviction appeal. Zephyr has been a fresh breeze on the issue of corruption in government, especially since Citizens United. She points out McDonald's First Amendment defense. Her research on corruption takes us bac to the Constitutional Convention and earlier English law on corruption. The questions from Justices Breyer and Alito suggest naivete to me, as in the case of Justice Kennedy in Citizens United, on the subject of corruption. If not naivete, then perhaps the Justices thought of how their careers came about - based on hard work and merit of course - and how certain things might be misconstrued as their careers advanced. (There but for the grace of God go i.) Yes, there may be innocent acts that might be misconstrued. But consider the magnitude here not just with Gov. McDonald but also his wife. So as we reflect on what the first Ten Amendments should be called, were what Gov. McDonald engaged in a right under the 1st A? Did the Framers/Ratifiers believe that money, tangible gifts are a speech right? I just thought of the "Shadow" radio programs in my youth (early '30s, '40s) :"Who knows what evil lurks in the hearts of men? The Shadow knows." Does the Court?

 

This comment has been removed by the author.
 

It is true that the Tenth Amendment would still count whether it is in the Bill of Rights or not. People still care a lot about whether it is included though.
 

Mainly, I think, because wanting to remove it from the Bill of Rights is thought to be indicative of a desire to violate it. Otherwise, why would it being in there be a big deal?
 

Speaking of wanting to remove things because you'd like to violate them... I just dropped by the ACLU's website, to see what they might have to say about the 10th. Looks like they've remodeled it to remove any obvious references to the Bill of Rights. Strossen's "not coextensive" has apparently been taking steroids and working out; They've got a long laundry list of "issues", but the list doesn't have any particular connection to Bill of Rights amendments, it's totally free floating.

That's a conspicuous change from the last time I dropped by their site.
 

This comment has been removed by the author.
 

The first 10 Amendments provided more protections (rights?) to slavery and slaveowners than did the 1787 Constitution. The Reconstructions Amendments expanded some of the first 10 Amendments to take away rights of slaveowners and slavery, expanding rights and powers more democratically. Some even today might prefer what the first 10 Amendments offered pre-Reconstrucion Amendments by way of rights. Of course not the ACLU.

Consider thar pre-Reconstruction As, the Court had ruled that the first 10 As, or at least 1 through 8, applied only to the federal government and not the states. The 1st A specifically restricts Congress, but this does not seem to be the case with 2 through 8. Perhaps the Court back then assumed that the designation of "Congress" in the 1st A was implicit in the next 7 As.

Even after the Reconstruction As, incorporation of at least the first 8 As via the 14th A was slow in acceptance by the Court and to date the Court has not as yet incorporated some of such As. Such failure plus Jim Crow laws slowed down implementation of the Reconstruction As. (I'm getting closer to the Warren Court for commentary.)
 

I'm not sure "Justice Hugo Black, Judge Learned Hand, and John Bingham" all wanted to "violate" the principles behind the 9th and 10th Amendments.

In fact, Justice Black was the sole justice who dissented when the Supreme Court upheld the power to require preclearance before voting rights laws were passed in the covered area. In the 1960s, not during the Roberts Court, he deemed this a violation of the principles of federalism.

One of the most basic premises upon which our structure of government was founded was that the Federal Government was to have certain specific and limited powers and no others, and all other power was to be reserved either "to the States respectively, or to the people." - See more at: http://caselaw.findlaw.com/us-supreme-court/383/301.html#sthash.9YFh2NlX.dpuf

It appears to me more a matter how one categorizes things there though I think both appropriately are included in the BOR.

As to the ACLU, the categorical breakdown is how I remembered things, and seems an appropriate means of dealing with issues that often overlap various provisions. For instance, a group concerned with gun rights would sensibly split things down categorically in part because various things are involved and the average person views things that way. Likewise, a person might be concerned about what happens when they are stopped by the police, which involves various amendments.

Anyways, I typed "Bill of Rights" in the search box. "7459 Results." One example: "KNOW YOUR RIGHTS: THE UNITED STATES BILL OF RIGHTS - FIRST 10 AMENDMENTS TO THE CONSTITUTION."
 

One thing that interests me is the development of the BOR in D.C., the federal territories and other areas. John Bingham et. al. might have thought the first eight amendments entailed "privileges or immunities of citizens of the United States" (as to the 2A, see Justice Alito's opinion in McDonald v. Chicago), but how did that develop? What about non-citizens ("persons") who resided in such areas? The paucity of antebellum BOR cases at all doesn't help the discussion.

One wrinkle that was addressed this term in the Supreme Court is Indian territory, including the reach of the right to counsel and double jeopardy [correction: I was thinking of the case out of Puerto Rico here]. The Indian Bill of Rights, e.g., specifically doesn't include an Establishment Clause, allowing tribes to have official religious acts.

Talking NYT and Texas, Linda Greenhouse's column is also interesting.
 

"In fact, Justice Black was the sole justice who dissented when the Supreme Court upheld the power to require preclearance before voting rights laws were passed in the covered area."

I'm not sure what you're getting at here, Joe. The 14th and 15th amendments were ratified after the 10th, obviously they over-ride it where applicable, by expanding the range of powers delegated the federal government. What they don't over-ride is the basic principle it underscores: That if a power *isn't* delegated to the federal government, either it's a state power, or no level of government has it.

 

"I'm not sure what you're getting at here."

You said: "Mainly, I think, because wanting to remove it from the Bill of Rights is thought to be indicative of a desire to violate it. Otherwise, why would it being in there be a big deal?" Justice Black was one person cited in the original discussion. But, the quotation is an example of him not "desiring to violate" the terms of the amendment.

As to the merits of the argument, the 15A gives Congress the power to enforce the amendment by means of "appropriate" legislation. Justice Black argues the the "basic principle the [10A] underscores" includes the power of states to pass laws without preclearance. He didn't think the 15A overrode that -- Black argued that the federal government could enforce the amendment's terms after the states enacted the laws. THAT would be the "appropriate" means of enforcement. The majority disagreed on that point.

Anyway, the point is that not counting the 10A as part of the "Bill of Rights" is not only done by those who wish to ignore the basic principles its entails. Ditto those who don't want to count the 9A as part of the Bill or Rights.


 

Ok, fair enough.
 

At his NYTimes Blog Paul Krugman on most Friday nghts posts a music video. I rarely watch the videos as he doesn't seem to be into jazz. He posted early today a Tom Lehrer video and I clicked on because I remember him from years ago with his commentary songs.This video deals with National Brotherhood Week, perhaps as we consider how the Constitution, as amended, addresses brotherhood.
 

I wonder if the ACLU doesn't 'highlight' the BoR is simply because more of their concerns involve constitutional rights found outside of it (privacy, equal protection, voting rights).

I'd say the 13th, 14th, 15th, 19th and 26th should be included in what we think of as the Bill of Rights, with the 10th out (for reasons Mark Field discussed).
 

Actually, if you go to the main ACLU site:

https://www.aclu.org/

And click on 'Know Your Rights' (one of the six headings on the main page)

You'll see rather prominently the United States Bill of Rights page link. Interestingly, even this 'uber-liberal' organization has a separate, stand alone page for the BoR but not for the Reconstruction Amendments (which I would argue were as, if not more, important). If that doesn't testify to the iconic, mythic sense about the BoR I don't know what else would. I'm betting a lot of this has to do with our slavish, uncritical worship of the Founders and relative lack of respect for the Republicans who gave us the Reconstruction Amendments (the reflexive hatred of the South, most significantly, for the latter is just so potent in our politics).
 

Based upon Mr. W's report on the ACLU website, I have a better idea of who is " ... totally free floating."

 

How cute. You think the fact that, if you go looking for it, you can find the Bill of Rights (10 amendments, by the way.) at the ACLU site, is the same as highlighting it.

It's so "prominent" I had to click "Know your rights", then "See all know your rights", then scroll down 2-3 screens worth before it came into view. Wow, that's in your face, alright.

"About the ACLU", circa 2007: (First two paragraphs)

"The American system of government is founded on two counterbalancing principles: that the majority of the people governs, through democratically elected representatives; and that the power even of a democratic majority must be limited, to ensure individual rights.

Majority power is limited by the Constitution's Bill of Rights, which consists of the original ten amendments ratified in 1791, plus the three post-Civil War amendments (the 13th, 14th and 15th) and the 19th Amendment (women's suffrage), adopted in 1920."


Now, once you find your way to "About the ACLU", you have to scroll down the page to find the first mention of the Bill of Rights, and that's in reference to it's history, not today.

No, I think I'm right. The ACLU has emphasized the Bill of Rights, because it's agenda today only agrees with the Bill of Rights occasionally, by coincidence. They're no longer an organization dedicated to defending it, except when it happens to agree with their goals.


 

I think it's a silly potshot.

Why is it so important that they especially highlight it? They have a page where they discuss the Bill of Rights specifically. It is a "civil liberties" organization so why shouldn't they group things by issues? The excerpt is still applicable today -- or are they no longer concerned about the 13A, 14A and 15A etc.?

And, Brett again with the "now" that has a present bias. The ACLU always leaned a certain way, like all civil liberties organizations. Early on, e.g., sexual speech wasn't a major concern, an early case they ignored a certain play with explicit themes. They also early on were wary about communists and as I recall homosexuals.

And, obviously we know Brett's opinion of them with the 2A, putting aside their position matched standard federal court doctrine until recently. Quoting the 2A wasn't a problem for them before. Plus, if gun issues were affected by some other civil liberty, the ACLU doesn't say "search and seizure issue involving a gun? Sorry won't take your case" etc.

What warrants the "occasionally" exactly? Their position on the 2A didn't change since 2007. Yes, sometimes their ideological leanings on free speech issues leads to dissent internally (especially on campaign finance but sometimes when free speech clashes with equality on campuses etc.). This isn't a NEW thing though. Meanwhile, they have protected liberal and conservatives in a range of ways, including religiously, criminal appeals, etc.

---

Finally, FAQs:

What is the ACLU?

"The American Civil Liberties Union was founded in 1920 and is our nation's guardian of liberty. The ACLU works in the courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States. Read more about the history and mission of the ACLU."

You can go to "Know Your Rights" to determine those "rights" or click the link.

THREE THINGS TO KNOW ABOUT THE ACLU
• We protect American values. In many ways, the ACLU is the nation's most conservative organization. Our job is to conserve America's original civic values - the Constitution and the Bill of Rights - and defend the rights of every man, woman and child in this country.

 

When encountering such " ... totally free floating", just flush. Now one could go back in the history of the NRA pre-Internet to learn that the NRA favored gun control legislation. I haven't checked out the NRA website, and do not plan to. Perhaps one of the usual suspects will do so to see if the NRA provides its history of how its positions on gun control changed.

While some of the usual suspects are waiting with bated breath for Gerard's answer to his game of "What's in a name ... " let's examine rights in play. For this, check out Glenda Elizabeth Gilmore's OpEd in today's NYTimes: "At Yale, a Right That Doesn't Outweigh a Wrong," that addresses the Yale brouhaha over a John C. Calhoun facility. Calhoun was a major proponent of slavery and a VP pre-Civil War. The OpEd takes us through Jim Crow days on rights of a particular woman.

As to Calhoun, Boston's own Fred Allen in his radio program of my youth when I lived in Boston featured in his Allen's Alley segment his Senator Claghorn character who reminded me of Calhoun. (I haven't tried, but Google may be accommodating in this regard for those interested.) (This may serve as my segue to the Warren Court and the racism behind originalism and the birth of the Federalist Society.)
 

Moving on. Regards to Mr. W., a few thoughts.

"Founders" is often used to apply to the specific time of the original Constitution. This is misleading since things happened since 1791. John Bingham, e.g., was a 'founder' too. Some call him the second Madison.

"Bill of Rights" is sometimes given a broad meaning. I have a pamphlet, e.g., written by Justice William O. Douglas about the "living" BOR and he notes "commonly" the term applies broadly to various rights (e.g., against bill of attainder; Hamilton in Federalist argued the whole Constitution at the time was a type of BOR).

Also, often the 14A is elided past -- so a state press case is deemed a "1A" matter. One reason there is that the rights in the BOR are enumerated while the 14A has catchall categories (P/I, due process). See, e.g., the discussion in West VA v. Barnette, which plays an important role in GM's discussion.

Finally, equal protection also often is seen as a Bill of Rights issue, even beyond the equal protection component of the 5A. Equal protection in that sense sometimes seems to have always been there (see also, the Declaration of Independence) even though 13A and 14A (and to some extent later amendments) advanced true equality in fundamental ways. This might mislead some, but "Bill of Rights" again has a certain general meaning beyond the specific text.

I don't think it is just a sort of derogatory regard for the Reconstruction Amendments. For one thing, think even then the BOR was particularly honored by those who wrote and ratified the amendments. The 13A and 14A was in large part seen as a means to completely honor the rights, the "privileges and [or] immunities" and "liberty," in place already but wrongly denied by the states.
 

Joe's thoughts are well put and I don't think Mr. W would have much quarrel with them. But Joe's:

" John Bingham, e.g., was a 'founder' too. Some call him the second Madison. "

reminded me of Mary Sarah Bilder's "Madison's Notes" that might suggest a similar forensic review of Bingham regarding Bingham contemporaneously with the 14th A and his subsequent commentary. Maybe Gerard addressed this in his book on Bingham but he did not have in mind, I don't think, the methodologies that Bilder used in her book. Bilder might consider this subject, not for a book but rather an article, that might be titled: "Madison and Bingham, Son Like Father."

But getting back to Joe's thoughts, this points out that in the here and now rights under the Constitution have to be considered in perspective as the Constitution has been amended and interpreted/construed by the Supreme Court. A static Constitution can be noisy and drown out progress.
 

GM discussed "Madison's Notes" on one of his blogs and encouraged further efforts in collecting firsthand materials connected to the Reconstruction Amendments. From what I can tell, there aren't that many "Bingham Notes" to work from and such an analysis of the firsthand materials wasn't really covered much in GM's biography.
 

Today, many years after the Warren Court's Gideon v. Wainwright decision that apparently annoyed both originalists and founders of the Federalist Society, John Pfaff's OpEd in today's NYTimes "A mockery of Justice for the Poor" is a reminder of how a right ecomes eroded with lack of funding. Consider this paragraph from the OpEd:

"If defendants had well-funded, effective representation, our adversarial system would do what it is intended to do. What we have right now, however, simply is not adversarial: relatively well-funded, well-staffed prosecutor offices square off against public defenders whose caseloads defy imagination."

So sometimes progress is stalled.

***

Joe's comment on my "Madison's Notes" comment just might inspire Mary Sarah Bilder.
 

Shag:

Thank you very much for your earlier cite to Larry Solum's Originalist Methodology draft. This short essay may be the best breakdown of textual interpretation I have ever read.
 

While Solum's Originalist Methodology is a good read, I question the use of such by those claiming to be originalists. There are many version, so called legal theories, of originalism. Solum happens to be a New Originalist. But not all New Originalist are in agreement with each other. And there is a distinction between originalism and textualism, although sharing certain things in common. Why there has developed in recent years a New Textualism, similar perhaps to the rise of the current New Originalism.

If one has time, one might focus on a decision of the Court one claims to be originalist and then use Solum's Originalist Methodology to reverse engineer the decition to determine whether the decision comports with the methodology. This is no easy task as the Court lost one of its two self-proclaimed originalist. If, for example, the late Justice Scalia, sometimes referred to as a faint-hearted originalist, authored the Court decision being tested, consideration would have to be given to the fact that non-originalist Justices agreed with the opinion, and in the give and take of getting to five (or more), it is said that sometimesthere are trade-offs.

Solum does not have that much faith in history as part of the New Originalism, approaching public meaning semantically. But New Originalist Jack Balkin, our host, places greater emphasis on the use of history. And keep in mind that the New Originalism has the concept of interpretation/construction. Many pre-New Originalism originalists have not adopted the New Originalism and severely critique the New Originalism's concept of construction.

Solum is comparatively apolitical with his views of originalism as compared to even fellow New Originalists. (I say comparatively because he seems to get a tad testy with his editorial comments on posts of articles that challenge originalism at his invaluable Legal Theory Blog. It's sort of like when Christianity is challenged, Christian group that "feud" with each other circle the challenger.)

In my semi-retirement I've been amused by the continuing search for the Holy Grail of constitutional interpretation/construction as legal academics develop more and more legal theories that unlike the physical/natural scienses cannot be readily tested, even with Solum's Originalist Methodology. So I check with relish challenges to originalism, including what's his name's [I'm doing this off the cuff, winging it] "Originalism is Bunk." I expect an effort may be made in the manner of Hobby Lobby to recognize originalism as a religion with it Genesisse 1 through 100.

I visit Legal Theory Blog and the Originalis Blog several times each day and at times it's like a Tower of Babel.

But I've babbled on too long.
 

Mitchell N. Berman authored "Originalism is Bunk," which is available on SSRN.

Jack Balkin posted a short scroll ago on originalist Stephen Smith's methodology for getting more judges and justices to accept originalism. Now at the level of Justices, we're down to one.

Query: Is Larry Solum's New Originalism Fixation Thesis signs of an addiction?

Speaking of SSRN, it also carries D. A. Jeremy Telman's "Explication Du Texte: 'I'm an Originalist; I'm a Textualist; I'm Not a Nut'" just 4 delicious pages on the late Justice Scalia as Telman works on a book on originalism. Might it be titled "Bunkered Originalism"?
 

After watching the Sunday political talk shows, I feel compelled to post my latest free verse verticalized poem on the presumptive nominee of the GOP:

***

DONALD J.

The
Racist
Uber
Misogynist
Putz.

April 20, 2016

***

As to the Cruz Canadacy, it's like a sailboat in the doldrums with only disgusTED breaking wind.



 

Further with respect to the Cruz Canadacy, Paul Krugman's 4/29/16 NYTimes column starts with this:

"Maybe we need a new cliché: It ain’t over until Carly Fiorina sings. Anyway, it really is over — definitively on the Democratic side, with high probability on the Republican side. And the results couldn’t be more different."

In the GOP there seems to be a recognition that "The party's over, ... " - the Republican Party!

 

I neglected to include the title to Krugman's column: "Wrath of the Conned."
 

Shag:

The term "originalism" needs to be retired in favor of applying the law as written.

This is not a novel concept. Anglo American law has been doing it for centuries.
 

In honor of Carly Fiorina and originalism:

"So good on paper
So romantic
But so bewildering

I know nothing stays the same
But if you're willing to play the game
It's coming around again"

[Carly Simon, "Coming Around Again"]
 

Consider Anglo-American common law written in judicial decisions. How "nove" was that? Of course common law evolved as circumstances changed. Common law had a sense of originalism as commen sense of the time. Anglo-American judges construed statutes using common law. In fact some current day legal scholars look upon constitutional interpretation by American judges and justices as invoking the common law .

After originalism has been around since the 1970s and the subject of many legal articles in its evolving forms, SPAM I AM! takes issue with the term "originalism, proposing "applying the law as written" (which can be shortened to "ATLAW")

On this Law Day, let's give SPAM I AM! a round of applause for reminding us of the good old days of Anglo-American law, especially with its development of common law. No need for elite semantics by cunning linguists and their New Originalism.

 

Joe's Carly Simon song tribute to Carly Fiorina is a warning to Californians, as the latter departed CA after getting her ears "Boxer-ed" in 2010 singing "I'm Coming Virginia," that she's coming around again. A Cruz/Carly duet of "Californian Here I Come" just might thwarted by Trump "Back Home in Indiana."
 

Over at the Legal Theory Blog, there is a 4/22/16 post on David A. Strauss' "The Supreme Court 2014 Ter - Foreward: Does the Constitution Mean What it Says?" Larry Solum gives this paper his "Highly recommended!" as well as his editorial comment:

"Highly recommended! Wrong, wrong, wrong! I think most readers of LTB have already read Strauss's wonderful and brave piece, but if not, download it while it's hot!"

I attended a program in the Boston area at which Strauss and Jack Balkin were subjected to critiques, including by each other, on their respective new books at the time, Strauss' on common law interpretation (I forget the exact title) and Balkin's "Living Originalism."

Those interested should go to the Legal Theory Blog and scroll down for the SSRN link, as well as to note the article abstract.
 

I just finished reading Eric Foner's review of Nicholas Guyatt's "Bind Us Apart - How enlightened Americans Invented Racial Segregation" in today's NYTimes. The book addresses African-Americans and Native Americans and segregation in the 19th century pre- and post-Civil War. The word "liberal" is referenced in the book but before the usual suspects jump to conclusions wait until Foner comments on such. I am pleased that the review was by an American with renowned historical chops. Note in particular references to Andrew Jackson. And the review's closing paragraph is very telling.

Over at the Legal History Blog Sunday book reviews feature there is a link to this review.
 

Shag:

Judges routinely interpret statutes, regulations, contracts, wills and other documents as they are written. Constitutions are not any different.
 

And judges (and justices) in interpreting/construing such documents may resort to common law principles when language in such documents are not that clear, thanks to Anglo-American law.
 

Here's a linK

http://conservancy.umn.edu/bitstream/handle/11299/163459/10-Denning-273-CommonLawConstitutionalInterpretation2.pdf?sequence=1

to Brannon P. Denning's review titled "Common Law Constitutional Interpretation: A Critique" (24 pages) of Strauss' "The Living Constitution."

There is not as yet any "Black Letter Law" on constitutional interpretation/construction. The search for that Holy Grail lives on as constitutional scholars evolve. (Well, it's a living.)

Query: Was Adam a libertarian until Eve came along?
 

So, we are still waiting for the big reveal.

Cliffhanger continues.
 

Shag: There is not as yet any "Black Letter Law" on constitutional interpretation/construction.

Any written constitution is by definition black letter law.

You just apply the black letter law as written.
 

This comment has been removed by the author.
 

Apparently SPAM I AM! believes the Constitution interprets and continues itself. The Constitution does not include a provision on how the Constitution is to be interpreted or construed. There is no "Black Letter Law" on how the "Black Letter Law" that is the Constitution is to be interpreted/construed. See Marbury v. Madison for the role of the Supreme Court in this regard. Consider the brouhaha over the presidential qualification of "natural born Citizen," as well as other phrases in the Constitution, including "due process," "privileges and immunities," "privileges or immunities," "equal protection of the law," etc, (more to be provided if necessary).

It's obvious that SPAM I AM! ignored the entirely of my sentence he quoted and he ignored the sentence that followedL

"There is not as yet any "Black Letter Law" on constitutional interpretation/construction. The search for that Holy Grail lives on as constitutional scholars evolve."
:
 

Ringling Bros. and Barnum and Bailey Circus is retiring its elephants in accordance with the Circus' decision a year or so ago in an arrangement with animal rights groups. Coincidentally the Republican Party is being retired as a result of the 2016 GOP 17 passenger Clown Limo with Trump as the Clown Master at the wheel and his dwindling down of the other 16 Clowns. Indiana look like a Trum win - and Kasich may get more votes than Cruz despite having agreed not to campaign in Indiana. Cruz's efforts to triple team Trump via his cabal with Kasich and choosing Carly Fiorina as his running mate in hopes of smashing the glass backboard that supports the basketball ring don't seem to be working. The Circus has plans for where the elephants will live out their retirements. But what about the Clowns as the GOP Big Tent has been collapsing?
 

Shag: The Constitution does not include a provision on how the Constitution is to be interpreted or construed. There is no "Black Letter Law" on how the "Black Letter Law" that is the Constitution is to be interpreted/construed.

If you refuse to apply the Constitution as written, what will make you apply an interpretation clause as written?

 

Being an equal opportunity progressive, I penned a free verse verticalized poem honoring Ted Cruz for consideration by GOP Hoosiers. When I posted it with a comment yesterday, alas, it did not line up vertically as I had prepared it, so I trash-canned it. I provide this explanation so that visitors may mentally line up the capitalized letters in the free verse. Here it is:

***RAPHAEL
EDWARD
“TED”

Canadian
boRn
natUral
citiZen.

May 1, 2016

***

Despite my efforts to be fair, it seems clear that Trump will out-ring Cruz. No need for a jump ball.

 

SPAM I AM! with this:

"If you refuse to apply the Constitution as written, what will make you apply an interpretation clause as written?"

makes several assumptions:

First, per Marbury the Supreme Court interprets/construes the Constitution, sometimes with 5-4 decisions, as part of its self-imposed Article III "judicial supremacy" over the federal elective branches (although Article III and the rest of the Constitution do not provide for such horizontal supremacy). I do have thoughts on how the Constitution should be interpreted/construed, but what do I know compare to a DUI legal specialist's constitutional chops

Second, to apply the Constitution as written, one (including the judiciary, SPAM I AM!, me, and the usual suspects) must know the meaning of the words/phrases of the Constitution in issue; this is an area of much dispute to other than simpletonians such as SPAM I AM! as witnessed by the Court's and legal scholars' disagreements on methods for constitutional interpretation/construction. Consider that the originalism movement is about the same age as SPAM I AM!, making both middle aged - and dare I say it - crisis. And Justice Thomas is the sole remaining self-proclaimed originalist on the Court.

But SPAM I AM! raises an issue that if indeed there were written "Black Letter Law" on constitutional interpretation/construction, would it be applied as written? That's a valid point So we have come full circle, assuring full employment for constitutional scholars.
 

Just apply the law as written. Just play the game. Life is easy.

Cruz corrected his wife recently. He is not an "immigrant" (though born in Canada); he is the SON of an immigrant. Whatevs. Don't worry, Ted; still think you are a natural born citizen.

On the SCOTUS front, Sotomayor again dissents with CJ Roberts. Also, helped by Elle Woods' (she's legally blond!) video cert petition, a case about cheerleaders' uniforms will be heard.
 

I think most everyone involved in constitutional law thinks they should (and are) interpret the Constitution as written, it's just that, as Shaq (and Marshall did in McCullough) notes a Constitution is purposefully full of broad, general language with much detail left out and reasonable people are going to disagree about what such language means in particular cases.

And beyond that, there's honest debate to be had about how one applies what's 'written.' If my grandfather lived at a time when 'SUVs' were unheard of has one, passes away and leaves in his will 'I want my truck to go to Mr. W to use to commute to school' some might argue that a truck is a truck and an SUV isn't a truck and so it shouldn't go to me and other's might argue from the fact that that vehicle was the only one he had and that a SUV is a new term for what is functionally a truck would mean it should go to me. I hope you got that this is Arizona Redistricting Commission case which found that a commission created by initiative was functionally the legislature and so OK.
 

When Cruz was born in Canada weren't both his parents immigrants in Canada? But Cruz's migration to America classified him as only "half-immigrant? Cruz's "correction" of Heidi might suggest his preference for the half-loaf immigrant over the full-loaf immigrant, sort of like the one-drop rule in reverse?
 

Mr. W. sums things nicely.

Look at the single (statutory) opinion handed down by the Supreme Court today. Eight justices provided four opinions. Justice Alito wrote for five justices. Breyer agreed with a dissenting opinion that a precedent relied on was iffy, but decided stare decisis should be relied upon. Thomas wrote that dissent. And, Sotomayor joined by Chief Justice Roberts (strange bedfellows, but they dissented together recently too) also dissented.

Cases that reach the Supreme Court by design tend to be difficult ones, but the matter applies generally speaking. This stuff is hard and ultimately it involves a lot of compromises to work, making things that much more difficult.
 

Mr. W's comment might suggest a variation of the cy pres doctrine to a method of constitutional interpretation/construction with a "sticky" constitutional provision, doing equity to the Constitution.

Joe points out differences among the Justices in a recent Court decision (5-3) in which the only self-procalimed originalist on the Court, Justice Thomas, dissented (as did CJ Roberts and Sotomayor).
 

The cy pres doctrine is to my understanding a doctrine applied in trusts where original objectives are applied "as near as possible" given recent realities. It seems to be well applied to originalism, though application is all over the place.
 

The Legal Theory Blog has a post on Richard W. Garnett's "Wrongful Discrimination? Religious Freedom, Pluralism, and Equality" with an interesting abstract on tensions between rights. This book chapter is available on SSRN. The abstract is worth a read. Larry Solum gives this his "Highly recommended."

Query: Does the Constitution provide for prioritizing tensions between rights? Do religious rights take priority over anti-discrimination rights?
 

Technically speaking, there isn't any constitutional right against private discrimination. The relevant right is to equal treatment from the government, (Including the protection of the law when private discrimination involves violation of laws of general application, such as against lynching people.) not your fellow citizens. While there most certainly IS a constitutional right of free exercise.

So, yes. Yes, they do take priority.
 

The 13A covers private action, which in certain instances involves "private discrimination" ...

"We hold that § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment."

https://www.law.cornell.edu/supremecourt/text/392/409#writing-USSC_CR_0392_0409_ZO

This was a basic concern in the 1860s too. Technically speaking and otherwise. Likewise, "private discrimination" often is applied to matters of public concern, including public accommodations. As Justice Harlan noted in his seminal dissent in the Civil Rights Cases. State constitutional provisions are often even broader.

There are complicated weighing here and government action is sometimes the greatest concern but "free exercise" is protected in a range of ways, including the government granting exemptions to general laws or providing additional protections such as (optional) civil rights protections in the employment context.
 

I appreciate Brett's point, but I'd add that

1. Free exercise vs. equal protection can occur with state actors-see Kim Davis

2. Under Smith free exercise is, constitutionally, quite limited.
 

Technically speaking, there isn't any constitutional right against private discrimination. The relevant right is to equal treatment from the government, (Including the protection of the law when private discrimination involves violation of laws of general application, such as against lynching people.) not your fellow citizens.

To supplement what Joe and MW said, what the 14th A actually says is that no state shall deny equal protection of the laws. If a state fails to enforce rights violated by private actors -- say, rights protected by the Civil Rights Act of 1866 or laws against violence, to use Brett's example -- then the federal government can pass and enforce laws which do so. Now, the courts haven't really interpreted the 14th A that way, but they could and should.
 

This comment has been removed by the author.
 

Religious Clause Blog cites Shag's article in a recent listing:

http://religionclause.blogspot.com/2016/05/recent-articles-of-interest.html

Accommodation was much less required under Smith, but to me that turns out to be more of a political question line-drawing enterprise since it always was seen as an essential thing to have accommodations of some sort. See, e.g., conscientious objection.

Just what "free exercise" entails is unclear but at least involves a sort of religious equality (in effect, an additional strict scrutiny category), religious institutional autonomy (including from general discrimination laws), freedom of belief and freedom from certain types of coercion. Sometimes, there is overlap -- e.g., certain early free exercise cases were treated in effect like free expression cases.

As to Mark Field's comment, yes ... Justice Breyer sort of touches upon that at the end of his dissent in U.S. v. Morrison such as "inadequacy of state remedies."

https://www.law.cornell.edu/supct/html/99-5.ZD1.html

 

" If a state fails to enforce rights violated by private actors -- say, rights protected by the Civil Rights Act of 1866 or laws against violence, to use Brett's example"

Precisely. The Constitution mandates that the states extend to everyone equal protection of the law. If it's illegal to lynch whites, it must be illegal to lynch blacks, and this must be enforced.

BUT. The Constitution does not mandate that it be illegal for a private individual to discriminate on the basis of race. Such discrimination, where it is illegal, is illegal as a matter of statutory law, not constitutional law.

And, by the way, equal protection implies that, if it's going to be statutorily illegal to discriminate on the basis of race against blacks, it must also be equally illegal to discriminate against other racial groups. All races are entitled to equal protection of the law.

Constitutional guarantees trump statutory guarantees. The free exercise of religion is a Constitutional guarantee, private non-discrimination statutory.

So, in a head to head conflict, free exercise wins.
 

It's not quite that simple Brett. The framers of the 14th thought, for example, that the right to make and enforce contracts was a fundamental and arguably Constitutional right, though it's not a specified right. They expressly protected that right in the Civil Rights Act of 1866, and the 14th A was written and ratified to give Congress the power to enforce that Act. Thus, if the state failed to enforce contracts for the benefit of blacks, Congress could provide a remedy even though the transaction was between 2 private parties.
 

What constitutes "free exercise" as well as "religion" in the 1st A isn't spelled out in the Constitution. As a result there have been interpretation/construction issues addressed and to be addressed by the Court. And the Court's decisions have been evolving and devolving. The current Court lacks a Protestant;and never seems to have had an atheist or agnostic.

Hobby Lobby (5-4) favoring religion over contraception for women under Obamacare was a situation of tensions between statutory provisions.

I hope to read the paper I cited in the next few days.
 

"The current Court lacks a Protestant; and never seems to have had an atheist or agnostic."

Probably had at least a functional agnostic. Breyer's daughter Chloe is a Protestant minister. Wonder if he bonded with Scalia (a son is a priest) over that.
 

Mark:

The drafters of the 14A and Civil Rights Act of 1866 were seeking equal enforcement of the laws enforcing contracts.

Neither the Constitution or the Civil Rights Act of 1866 requires people to associate with or enter into contracts with another.
 

SPAM I AM!'s:

"The drafters of the 14A and Civil Rights Act of 1866 were seeking equal enforcement of the laws enforcing contracts."

seems astray from principles of textualism, i.e., as the 14th A is written. This smacks of original intent originalism. (Note: I am not conceding the accuracy of the claims in the quote.)
 

I finished reading Garnett's paper. It's extensive discussion of three cases decided by the Court indicate religion lost 2 and won 1. Garnett disagreed with one of the "lost" cases in which he authored an amici brief on the religion side. So it is not clear that religion under the 1st A has priority over anti-discrimination provisions. Issues on the free exercise and establishment clauses in the 1st A can be quite complex.

Those planning to read the paper should be aware that the pages are not numbered, at least my pdf version which I read on my desktop.
 

"Thus, if the state failed to enforce contracts for the benefit of blacks, Congress could provide a remedy even though the transaction was between 2 private parties."

That in no way contradicts my position: If I enter into a contract, I'm entitled to have it enforced, and equal protection of the law says every race is equally entitled to such enforcement.

But the right to contract isn't the right to compel others to enter into contracts with you.

"So it is not clear that religion under the 1st A has priority over anti-discrimination provisions."

I'm not saying it has priority in practice. Just as a matter of legal logic.

I'm not a legal 'realist', I'm perfectly capable of noticing when judges are wrong.
 

This comment has been removed by the author.
 

Brett: But the right to contract isn't the right to compel others to enter into contracts with you.

Bingo..

Shag, our constitutional tradition provides and limits government powers. It does not compel any individual to provide anything to another. Instead, the guarantee of free association states just the opposite.

 

SPAM I AM! ducks my challenge to his claims of being a textualist, of looking at the 14th "as written," rather than the views of the Framers. History is of course important - and does not repeat itself - but New Originalists (other than Jack Balkin) and textualists ignore much of history, except when it supports their preconceived views on an issue. Unlike the claim of the late Justice Scalia SPAM I AM! is a nut, or more precisely a NOAGN*.

*NIT ON A GNAT'S NUT (with apologies to the gnat).
 

The logic of a computer engineer dealing with 0s + 1s differs from legal logic. And I would seriously question whether Brett is a realist, legal or otherwise, as a self-procalimed anarcho-libertarian and 2nd A absolutist. But over time at this Blog, Brett has improved his legal chops.
 

Shag:

You are free to offer the passages of the 14A you think compel people to enter into contracts.

It is not my job to guess what you are arguing.
 

"It does not compel any individual to provide anything to another."

That's not quite right, the Constitution allows for the government compelling taxes which can then be spent on others (the general welfare). It allows for the compelling of people to muster to serve in the militia. I also think the commerce clause, properly interpreted, could include mandates.

"Instead, the guarantee of free association states just the opposite."

There is no "guarantee of free association" stated in the text of the Constitution. So much for interpreting it as written.
 

I should note, SCOTUS has ruled that under the Commerce clause Congress can compel those that hold out an offer of services to the public to then do business with minority groups even if they may not want to.
 

http://www.pbs.org/wgbh/amex/reconstruction/activism/ps_1866.html

The reply to Mark Field focuses on "enforcing" contracts.

But, and this was seen as matter that grew out of the 13A so is not merely a matter of state law, "to make and enforce contracts" is included here.

This isn't trivial. Brett has argued that laws that require equality in MAKING contracts is a form of involuntary servitude. As he notes, he disagrees with the law at times, but that isn't how the law sees things or saw if for centuries.

I need not sell my property if I don't want to. But, IF I open things up to sale, the government can require me to "make" contracts equally. I can be required to sell to blacks, women, gays, Protestants or whomever, even if I don't want to. And, if I fail to do so, it very well might in certain cases be a "badge of slavery," the original understanding there applying to religious groups too.

At the very least, it is a matter of state or federal law, a compelling state interest, that can override personal free exercise. One major problem here is "private" is often used much more broadly than the law uses it in this context. Most of these RFRA debates don't really merely deal with "private" behavior.
 

(To be clear, there might be limited cases where sale is required, at least to the degree it involves a legitimate taking ... bankruptcy also might require it as might other special situations. I speak generally.)
 

SPAM I AM! tries to be slippery as an eel, avoiding the obvious, regarding my comment on his:

"The drafters of the 14A and Civil Rights Act of 1866 were seeking equal enforcement of the laws enforcing contracts."

Where in the 14th A is this written? I know of no language in the 14th A that expresses this or that compels people to enter into contracts. I did not claim that the 14th A does compel people to enter into contracts. Rather, I was challenging SPAM I AM!'s chops as a textualist and all he did was gum things up in response. SPAM I AM! needs some legal Fixodent.
 

BD: "The drafters of the 14A and Civil Rights Act of 1866 were seeking equal enforcement of the laws enforcing contracts."

Shag: Where in the 14th A is this written?


14A, Sec. 1: "nor shall any state...deny to any person within its jurisdiction the equal protection of the laws."

That includes the laws enforcing contracts.
 

The fundamental problem, and it's hardly restricted to this specific issue, is that when you give government an inch, it always eventually tries to take a mile.

Pass an amendment that prohibits slavery, and the government claims the power to prohibit the "badges" of slavery. Slavery is a fairly objective thing: One person is compelled to labor for another. "Badges" of slavery is a wildly ambiguous thing.

It started out meaning the disabilities slaves were normally subjected to, such as not being able to travel freely, or enter into contracts. This was perfectly reasonable, but properly addressed under the 14th amendment as a violation of the privileges and immunities clause. Any right a free man was understood to have, a former slave had to be accorded.

Now it's this open-ended anything the government dislikes concept, even if it's something that has nothing at all to do with slavery, such as one free person deciding they don't care to do business with another free person.


 

This comment has been removed by the author.
 

BD: "It does not compel any individual to provide anything to another."

Mr. W: That's not quite right, the Constitution allows for the government compelling taxes which can then be spent on others (the general welfare). It allows for the compelling of people to muster to serve in the militia. I also think the commerce clause, properly interpreted, could include mandates.


Taxes and military service are not agreements between individuals.

The Commerce Clause grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” "Regulate" is s negative term which means to organize and discipline trade between people and in no way grants Congress the affirmative power to compel people to enter into contracts with one another.

BD: "Instead, the guarantee of free association states just the opposite."

There is no "guarantee of free association" stated in the text of the Constitution. So much for interpreting it as written.


Text can both expressly state and imply a proposition. All the expressly stated liberties guaranteed by the 1A are exercises of a right of free association. When read in para materia with the 9A guarantee of unenumerated liberties, the 1A and 9A can be a reasonably read to guarantee freedom of association.

Progressive courts have dishonestly enforced a right of free association to protect the associations of which they approve from government power, but not those of which they do not approve. (See, e.g., Roberts v. United States Jaycees
468 U.S. 609 (1984)(single gender clubs))
 

This comment has been removed by the author.
 

The commerce clause is the best place to see that Bart's call to just interpret the Constitution as written is pure bluster, bluff and cover. The clause as written gives Congress the power “to regulate commerce...and among the several states.” As Samuel Johnson's dictionary attests, the most common definitions of the key word regulate were "To adjust by rule or method" and "To direct." There's no talk here about limitations to negatives, there's a broad grant of the power to make rules or direct interstate commerce. The only qualification in the text itself is that these rules or directives must apply to interstate commerce.

http://johnsonsdictionaryonline.com/?p=8802


"All the expressly stated liberties guaranteed by the 1A are exercises of a right of free association. When read in para material with the 9A guarantee of unenumerated liberties, the 1A and 9A can be a reasonably read to guarantee freedom of association."

It's not that this is ridiculous, it's just ridiculous from someone that has been urging everyone to just read the text as written. As written there is no guarantee of free association at all. There is a specific guarantee of free exercise of religion. There's a specific guarantee of the right to assemble to petition. There is no mention of a guarantee of free association, and to say it is 'implied' from a reading of the specifically written guarantees in conjunction with (my goodness!) the 9th Amendment's reference to unenumerated rights is to engage in an interpretative method that, again while reasonable, can not reasonably be said to be one of sticking to the 'text as written.' Notice how close the reasoning is to Justice Douglas' (!) decision in Griswold finding a right to privacy from the implications of other specific provisions plus the 9th Amendment. In fact, Douglas says explicitly in that opinion that his reasoning is of the *same order* as that finding a right to free association! Bart has veered from textualist to the kind of interpretation found in the most living-est of living constitutional opinions!
 

Mr. W:

Under Anglo-American law preceding and at the time of the Commerce Clause, all trade regulations were negative limitations on trade. The affirmative government mandates to enter into associations and contacts arose later under the various totalitarian political economies we adopted.

I would suggest that you read Larry Solum's draft essay Originalist Methodology, specifically his critique of the misuse of dictionaries to interpret the Constitution on page 9 and his discussion of implicature and implicature on pages 12-13.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2764466
 

Bart,

Also, from our previous discussion where you laid down the challenge "show me any example where our elected representatives ever reversed a significant rule decreed by or eliminated any significant part of the regulatory bureaucracy during our lifetimes" and I replied with the reversal during the Bush administration of the Clinton era OSHA ergonomic regulations, to which you replied that I had found this 'one exception.'

Well, here are some more instances of Congressional acts reversing significant rules decreed by the regulatory bureaucracy:

https://en.wikipedia.org/wiki/Airline_deregulation

https://en.wikipedia.org/wiki/Motor_Carrier_Act_of_1980

https://en.wikipedia.org/wiki/Telecommunications_Act_of_1996

I'd like to see you argue that these acts didn't involve any reversals of significant rules decreed by the regulatory bureaucracy existing before them.

So you see, the American people through their elected representatives are perfectly able to change regulatory rules set by the bureaucracy when they want to. The fact that they don't want to as much as or in the way you prefer is no evidence of tyranny.


 

Now it's this open-ended anything the government dislikes concept, even if it's something that has nothing at all to do with slavery, such as one free person deciding they don't care to do business with another free person.

The Civil Rights Act of 1866 held that "making" contracts had to be done equally. If you "didn't care" to do business, don't do business. But, once you started to do business, you couldn't discriminate by race. And, religion was seen as a type of race in that period. As to the P/I Clause -- it applies to state action and citizens specifically. The 13A deals with a more open-ended problem.
 

Implicature refers to "what is suggested in an utterance, even though neither expressed nor strictly implied (that is, entailed) by the utterance." Again, this is not 'sticking to the written text.'

"Under Anglo-American law preceding and at the time of the Commerce Clause, all trade regulations were negative limitations on trade."

What does this matter? What matters is the text and how the words therein were understood at the time, and as I've shown with Johnson's dictionary a negative limitation on the making or adjusting of rules or directives was not part of the understanding of the word 'regulate.'
 

Balkin and Levinson, btw, wrote this:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2115222

The open-ended nature of "slavery" and "involuntary servitude" was understood at the time especially given the enforcement power. It factored into the opposition to the amendment. One can oppose it, of course. Law doesn't mean right.
 

Mr. W:

When interpreting what the Constitution's drafters meant by "to regulate commerce," the first place you look would be previous and existing regulations of commerce under Anglo-American law, not unrelated usages of the more general term "regulate" in a common dictionary.

Context is key because "to regulate commerce" is a different critter from "regulation of land and naval forces."
 

Bart,

This is getting away from the text and how it would be understood by the public of the day (this is Scalia's definition of textualism). More importantly, you're confusing how a law had been applied or what it's purpose was with what a law as a matter of text entails. Perhaps regulations of commerce had always been used (their purpose or goal) in negative ways, but the terms 'power' 'regulate' etc., did not have a negative qualification built into their meaning.

Consider an act empowering the department of defense to engage in 'radio propaganda efforts.' Let's suppose that when this act was passed everyone only thought that radio propaganda should be limited to direct rebuttals of enemy propaganda. If a new administration, though, decided to use it to engage in proactive propaganda it certainly would be silly to argue that this was contrary to the law because the term 'propaganda' had only heretofore been undertaken to directly rebut enemy propaganda and therefore the word 'propaganda' in the act meant something other than it's normal dictionary definition but rather included a limitation based on the past practice. Such a view would be pretty far from 'following the text as written.'
 

"Context is key because "to regulate commerce" is a different critter from "regulation of land and naval forces.""

And here's where you seem to foresee the weakness of your position. If regulation just means to make rules or directives, with no limitation to negatives rules/directives, then that fits both those instances just fine. It's under your pseudo-definition that there's a problem (because you know the latter use of 'regulation' wouldn't make much sense), so you have to set up the potential retreat position of 'well, it will mean only negative rules in the commerce clause but of course it means something different in the other clause.' My position is fine with both uses, that your's is not is a sign of its weakness.
 

This comment has been removed by the author.
 

Mr. W:

At the time the Commerce Clause was written, regulation of commerce between private parties only included negative limitations on that commerce. Government mandates for private parties to enter into contracts were unheard of and, thus, could not have been contemplated by either the drafters or public in this use of the term "regulation."

At the time the Military Regulations Clause was written, regulation of military members (who are employees of the government) included both affirmative requirements to follow lawful orders and negative proscriptions against various acts in order to maintain military discipline.

As I noted from the outset, these are different powers applied to fundamentally different circumstances.
 

Bart,

That's like saying that since equality between the sexes or the idea of discrimination against whites being a problem were unheard of when the 14th Amendment was written then the equal protection clause can't be read to strike down gender discriminatory acts or affirmative action that works against whites. You're basically making the mistake that Balkin has talked about a lot, the confusing of original meaning with original expected application of a provision.
 

"regulation of commerce between private parties only included negative limitations on that commerce"

This premise is not correct, btw. Think of the old regulation of common carriers.
 

Mr. W:

If the term is unambiguous, you apply its unambiguous meaning.

If the term has multiple meanings depending upon the application, you look at the practice of the parties. In the case of a constitution, the parties are the government and the people.

Equal means equal in every case. To apply the protection of the law unequally by definition violates a commandment to apply the law equally.

In contrast, the term "regulation," has varying meanings depending upon its usage. Therefore, you look to the practice of the parties.
 

BD: "regulation of commerce between private parties only included negative limitations on that commerce"

Mr. W: This premise is not correct, btw. Think of the old regulation of common carriers.


Significant regulation of common carriers began almost a century after the ratification of the CC.

Price regulation skates the border of an affirmative command and a negative proscription, depending on how you look at it. Populists and progressives sold it as a negative proscription against price gouging.
 

Consider SPAM I AM!'s juvenile master debating techniques in action

First he stated: "The drafters of the 14A and Civil Rights Act of 1866 were seeking equal enforcement of the laws enforcing contracts." I challenged him on textualist grounds to point out where in the 14th A such was written.

Second, after several slippery efforts to duck this he came up with this: "14A, Sec. 1: 'nor shall any state...deny to any person within its jurisdiction the equal protection of the laws.' That includes the laws enforcing contracts."

But he emphasized only " enforcing contracts" in his initial remark as if that was the focus of the Framers with the 14th A. With that type of logic SPAM I AM! could have referenced the enforcement of laws involving rape, murder, bestiality, gun laws, or a myriad of other laws that existed at that time, not limited to state laws but also the supreme law of the land as defined in the 1787 Constitution. Equal protection of the laws was intentionally broad, designed to include laws enacted after the ratification of the 14th A. Laws change over time at the state level and at the federal level, even contract laws. And don't forget the Constitution's supremacy clause.

So is SPAM I AM! a faint-hearted textualist? Perhaps he is not even that, as MR W has been exposing SPAM I AM! on his claims that written includes by implication. I'll wait until another MR W "W" is posted for further comment on this point.
 

Brett's 10:57 AM comment puts on full display his racial animosities.

***

" ... when you give government an inch, it always eventually tries to take a mile.

Pass an amendment that prohibits slavery, and the government claims the power to prohibit the 'badges' of slavery. Slavery is a fairly objective thing: One person is compelled to labor for another. 'Badges"'of slavery is a wildly ambiguous thing. "

***

Back in the days of slavery, slavery may have "a fairly objective thing" to the slaveowners but it was definitely subjective to the slaves. Much more than slaves being compelled to labor for the slaveowner was involved from the perspectives of the slaves. Perhaps Brett is ignorant of all the deprivations suffered by slaves. I'll not enumerate them (at least at this time). As to "badges of slavery" being "a widely ambiguous thing" consider Jim Crow laws enacted primarily in the former slave states post-Reconstruction Amendments, with remnants continuing to this day, limiting African-Americans. The movie "Watermelon Man" starring Godfrey Cambridge illustrated the travails of a White man who suddenly turned Black. Consider in the current presidential campaign older undereducated white males flocking to Donald J. Trump who will probably be the nominee of the Republican Party ( because his closest competitor is haTED). These males may feel that they are suffering from "badges of White Supremacy."

By the Bybee [expletives deleted], the 13th A empowers Congress per its enforcement clause to implement its provisions.

I'll have more to say on Brett's 10:57 AM comment later, including how many decades it took for the government to go from that inch to that mile that so concerns Brett.
 

Bart,

"Equal means equal in every case. "

That's ridiculous. Equal can mean different things to different people, and the proof of that is right before us in this example: the very people who wrote the words 'equal protection of the law' thought it was compatible with all kinds of laws treating women differently than men, blacks differently than whites (including aid for blacks and not whites).

"In contrast, the term "regulation," has varying meanings depending upon its usage."

No, that's begging the question. It has one meaning and the dictionary gives it. It means to make rules, to direct. That definition makes sense with the commerce clause (make rules about commerce, direct commerce) and it makes sense with the armed forces (make rules for the forces, direct them). There's only ambiguity if we accept your contention that the regulation meant something different for the writers of the IC clause than it did for the public of their time in general, and all you have to base that supposition on is your confusion of how a text might have been expected to apply with what it meant. Again, Balkin has written about this quite a lot, it's a common, if basic error. Laws are often applied to things the writers of those laws did not plan to use the law for, what matters is (to a textualist at least) only whether those other things fit under the *text* of the law in question, not the 'original intent' of the writers of the law. That's Scalia 101.

"Significant regulation of common carriers began almost a century after the ratification of the CC."

Ah, here we see the predictable appearance of the weasel word 'significant.' But at common law there were all kinds of regulation of common carriers that is significant (and here I can point to your words from your proposed Amendments that violations of liberty rights are always significant-an absurd position to be sure but since I remember it and it's at odds with what you're saying now why not ensnare you in it?). At common law, before the CC everyone from ferrymen to innkeepers were regulated in who they could not serve (in other words, they were restricted in who they could *refuse* service too). Saying you must serve certain people is not a negative regulation.
 

good and thanks alot
http://downloadgames1415.blogspot.com.eg/
 

BD: "Equal means equal in every case. "

Mr. W: That's ridiculous. Equal can mean different things to different people, and the proof of that is right before us in this example: the very people who wrote the words 'equal protection of the law' thought it was compatible with all kinds of laws treating women differently than men, blacks differently than whites (including aid for blacks and not whites).


The intent of various people supporting the 14A is irrelevant. The word equal means equal.

BD: "In contrast, the term "regulation," has varying meanings depending upon its usage."

No, that's begging the question. It has one meaning and the dictionary gives it.


General dictionaries only provide word usages of which the particular lexicographer is aware. Your particular general dictionary provided multiple definitions of the word regulate.

The reason that we have specialized dictionaries like Black's Law Dictionary is because general dictionaries are awful sources for specialized terms and terms of art.

As a further example of how the term regulate has different meanings depending on the situation, the term "well-regulated" in the 2A was a military term of art which meant the ability to shoot effectively in formation. That definition appears in some general dictionaries, but not in others.

BD: "Significant regulation of common carriers began almost a century after the ratification of the CC."

Ah, here we see the predictable appearance of the weasel word 'significant.'


I intentionally used the word "significant" rather than a categorical statement because you have a talent for finding isolated exceptions which prove my points.

Significant regulation of common carriers under the Commerce Clause began with federal government caps on and approvals of railroad rates roughly a century after the clause was ratified.

You are welcome to provide links to your claim that the government was affirmatively compelling people to enter into ferry and inn contracts before the Founders drafted the Commerce Clause.

 

How early tonight can we expect the network' calls on the Republican candidate who gets INDIANA caJONES?
 

"The word equal means equal."

And the word regulate means regulate.

"our particular general dictionary provided multiple definitions of the word regulate."

It provided two, and they meant essentially the same thing: to direct or adjust by rule. Neither included any mention of a limitation on this direction or adjusting to negative directions or adjustments.

I'm glad you brought up the use of the word in the 2nd, because that use fits comfortably with the definition I'm using. A well directed or adjusted by rule militia would be the desirable one. It's a well controlled, well disciplined one. It's only your theory that requires a different meaning for the word every time we come across it in the same document. That's generally a weakness in an argument for what a word in a document means, btw.

In the end, while I've offered dictionaries of the day and a definition that works with other uses of the same term in the same document, you've offered no evidence to support your reading save your idea which confuses the original expected application of a law (and not even that, really) with the original meaning of the words in the text.

"You are welcome to provide links to your claim that the government was affirmatively compelling people to enter into ferry and inn contracts before the Founders drafted the Commerce Clause."

Happy to oblige:

From Chief Justice Holt's opinion in Lane v. Cotton 88 Eng. Rep. 1458, 1468 (1701)

[W]herever any Subject takes upon himself a Publick Trust for the Benefit of the rest of his fellow Subjects, he is eo ipso bound to serve the Subject in all the Things that are within the Reach and Comprehension of such an Office, under Pain of an Action against him...If on the Road a Shoe fall off my Horse, and I come to a Smith to have one put on, and the Smith refuse to do it, an Action will lie against him, because he has made a Profession of a Trade which is for the Publick Good, and has thereby exposed and vested an interest of himself in all the King's Subjects that will employ him in the Way of his Trade


 

But let's not forget what got this discussion of 'regulate' in the CC started: your pointing to the 'guarantee of free association' in the Constitution when that guarantee does not appear at all in the text. When challenged about this, you argued that it's there *by implication from other provisions and in conjunction with the 9th Amendment.* Essentially the *very same method of interpretation Justice Douglas used in Griswold*!!!! And this is from the guy who has kept saying, repeatedly, that the Constitution should be just 'be applied as written.' Incredible.
 

These poll numbers are looking great for Rafael Cruz (R-Calgary)!
 

Well, the "call" has been made in Indiana, with SPAM I AM! emulating Charlie Brown: "Good grief!" SPAM I AM! is still going through the stage (as written) of Anger. This will be followed by the stage (as written) of Bargaining, but with whom? Can SPAM I AM! claim Lucifer made him do it? That then is followed by the stage (as written) of Depression, a stage he has experienced over and over with his Chicken Little "The Sky is Falling! mode. Then will come the final stage (as written) of Acceptance with SPAM I AM! endorsing Donald J. Trump, finally discontenTED. SPAM I AM! has a fit with the Donald: each of thm is predictably unpredictable, especially with things as written.
 

Now, now. It's true the estimated delegate count for Trump is around 1050 now and Cruz no longer looks like the wiz of the unbound delegate

http://www.realclearpolitics.com/epolls/2016/president/republican_delegate_count.html

with his bro Christie's state later basically a slam dunk to make it around 1100 (of 1237 necessary), but it isn't over! Nebraska is the next firewall. Washington/Oregon will show Kasichmentum! We need to see who he picks for veep first, true.

I suggest Tom James. That guy is pretty kewl.
 

One of the benefits to being newly retired is that I no longer spend most of my day on the internet reading Baghdad Bart's bullshit. Has he endorsed Donald J Trump (R(INO) - Wallistan) yet?
 

Cruz is suspending his campaign. Guess it's Kasich's to lose.
 

This is GREAT news for John McCain!!
 

bb:

You will vote for the corrupt felon just because she is a Democrat, while I refuse to vote for the fascist just because he ran and won as a Republican.

I am unsure what is more disturbing, that you will vote for the dowager queen in waiting knowing full well that she is a corrupt felon or that Trump's followers really are clueless that they are voting for a fascist.

God save America.
 

Guess Brett will be the Trump surrogate.
 

When does young Trudeau come up for re-election? Keep in mind that Cruz is a natural born Canadian and can probably get his citizenship back.

As consolation, SPAM I AM! can point out that in internet time he was finally persuaded by Mr. W that Cruz did not qualify under the Constitution as a "natural born Citizen" as written in the Constitution. But SPAM I AM! despite this concession continued shilling for the Cruz Canadacy ar this Blog. And SPAM I AM! was part of the CO Mile High State (of mind) cabal with the GOP delegate process. While Trump may have short fingers he has a long memory.

But the real breaking news is that BB is newly retired. BB lives in MA and perhaps our paths will cross and we can have a few laghs over what's-his-name.

By the Bybee [expletives deleted}, I never for a minute believed that Cruz is the Zodiac Killer. Cruz's campaign suspension will be mourned by comedians, but not for long, as The Donald will contnue to promise to build a wall and make Mexico pay for it. But with TX Sen. Cruz's suspension, TX can get serious about seceding, perhaps with Cruz seeking the presidency of the rebirth of the Lone Star Nation - and thwart the location of Trump's wall.

Query: By suspending his campaign, did Cruz violate at least the spirit of their agreement on stopping Trump?

Might Cruz resign from the Senate knowing well he has no bridges to the other 99 Senators? As a consolation, Trump might provide Cruz with a tuition free scholarship to Trump University to learn how to be a winner.
 

meanwhile: http://concurringopinions.com/archives/2016/05/a-right-to-write-in.html

(we found the Kasich surrogate)
 

You will vote for the corrupt felon just because she is a Democrat, while I refuse to vote for the fascist just because he ran and won as a Republican.

# posted by Blogger Bart DePalma : 9:34 PM


Fuckhead, you defended war criminals because they are Republicans. That is worse than anything I have done in my entire life. Go fuck yourself.

 

Shag from Brookline said...

But the real breaking news is that BB is newly retired. BB lives in MA and perhaps our paths will cross and we can have a few laghs over what's-his-name.


I'd love to meet up some day, Shag. I have plenty of free time... I just wish it would stop raining.
 

"Guess Brett will be the Trump surrogate."

Still haven't decided between Trump and Gary Johnson. On the one hand, I like *most* of Johnson's positions better. OTOH, either Hillary or Bernie would be terrifyingly bad Presidents, and Trump has a better chance of stopping them than Johnson. The most Johnson is likely to do is pull enough votes that the LP has to be taken seriously. And I know what that leads to: More campaign 'reforms' to safeguard the major party duopoly.

Mostly I just get irritated by people calling Trump things like "fascist". On some absolute scale, sure, but on that scale, we've been electing fascists on a regular basis, and haven't had concentration camps to show for it since WWII.

On a relative basis? Bernie is more of the genuine thing.
 

The 'corrupt felon' line is great. The hard Right has pretty much made HRC bullet proof to most of their criticisms by virtue of the hyperbole they've always wrapped them in, why should things change now? Sure, keep flogging the mala prohibita offense of sending certain designated emails to another government employee without following a security protocol as a hardcore felony, just don't be surprised at the eye rolling you get in response.
 

Waking up this morning, certain in his and his cause's complete righteousness but also smacked in the face by the voters one time too many, Rafael must truly be, as Boehner described, a miserable son of a bitch to whom none can compare.

Maybe he'll deal with by shooting some rings?
 

" The hard Right has pretty much made HRC bullet proof to most of their criticisms by virtue of the hyperbole they've always wrapped them in"

No hyperbole, unfortunately. What's made HRC bullet proof is a combination of a corrupt DoJ, and Democrats just flat out not caring if their candidates are criminals as long as there's no prospect of convicting them.

It's a hardcore felony because it leaves them open to interception by foreign intelligence services, which is exactly the reason they're supposed to be restricted to a specially secured system in the first place. Go ahead, just demonstrate that you don't care about her taking the nation's secrets and putting them where Russian and Chinese intelligence would have no trouble reading them.

It's going to be a generation before our intelligence services recover from the effects of her efforts to evade scrutiny by domestic law enforcement.
 

Brett:

Fascism does not automatically lead to the concentration camp any more than socialism automatically leads leads to the gulag.

Fascist politics scapegoats some Other for the nation's economic problems (generally caused by the failure of a socialist government) and offers a strong leader to punish the Other and restore the nation to greatness.

In campaigning in the late 20s and early 30s, Hitler scapegoated the Jews for Germany's economic problems caused by its socialist government and offered himself as der Fuhrer who would punish the Jews and restore Germany to its former glory.

During his 2016 campaign, Donald Trump scapegoated foreigners for the United States' economic problems caused by our current socialist government and offered himself as strong leader who would deport the aliens and block foreign trade to "make America great again."

Textbook fascism.

If you genuinely believe in freedom, voting for Donald Trump (or Hillary Clinton) is simply not an option. Trump in no way, shape or form believes in limited government.
 

So it seems that Brett's "endorsement" will go to either "Small Hands" Trump or "Big Hands" johnson, either way a below-the-belt(way) "endorsement."
 

Mr. W: The 'corrupt felon' line is great. The hard Right has pretty much made HRC bullet proof to most of their criticisms by virtue of the hyperbole they've always wrapped them in

Are you really going to argue with a straight face that Clinton is neither corrupt or a felon?

Pray tell how did the Clintons earn their nine figure fortune if not by selling political influence to the world's wealthy and foreign governments? Goldman Sachs is not paying Hillary a quarter million dollars to give a speech based on her wonderful oratory. The woman has not been able to fill her campaign venues with people who want to hear her speak for free.

We already reviewed the provisions of the Espionage Act which Clinton violated hundreds of times.

2016 will offer Americans the worst choice for president in American history and that ain't hyperbole.
 

Like they say, if you want to vote for a candidate who agrees with you about everything, run for office.

I live in a country where both major parties run fascists, and the 'minor' parties have been legally handicapped to the point where voting for them is largely a waste of time. Where Rand Paul had to drop out before I got the chance to vote for him, due to his ideas not appealing to enough people.

Do I cast my vote to help Gary Johnson do well enough that the major parties feel it necessary to finally make third parties outright illegal? Or sit out the Presidential race, so that I can feel good about not being complicit? Or vote for whoever I think is the lesser evil among the candidates who actually have a chance?

I'll decide that closer to the election. But TDS is certainly a real thing, I'm sure of that.
 

It looks like SPAM I AM!'s stage of Anger will take a while before going to the next stage. Perhaps he should consider uber conservative Billy [the unfunny] Kristol's reaction to the triumph of Indiana caJones yesterday. I understand a cruise is being arranged for the Cruz-aiders to address their grief, dubbed the "Cruz to Nowhere."

And Brett is apparently in no hurry to size up the candidate he will vote for, sort of "on the one hand [X], on the other hand [Y]."
 

Why should I be in a hurry? It's not even clear yet whether the felon or the commie will get the Democratic nomination. The general election campaign is just beginning.

If Rand Paul had miraculously won the nomination, there'd be no question about who I'd vote for. But as things stand, I need more information.
 

This comment has been removed by the author.
 

Brett;

It is true that our government started adopting fascist economic policies back during the New Deal. However, Trump using the GOP as a vehicle to run the first major party fascist campaign for president is far more destructive to the cause of limited government.

Reagan was able to assemble an electoral majority supporting limited government by persuading working class voters that expanding government caused the 1970s stagflation and that leashing government would return prosperity. These Reagan Democrats elected him to two landslide elections and Reagan mostly delivered on his promises. This GOP coalition has proven to be the only effective means of electing limited government politicians.

Trump's fascist campaign is ripping that coalition apart. The Donald is convincing working class voters that foreigners are responsible for an economic depression created by our government along with any number of other evils and is promising that he will repel these foreigners by his own personal exercise of even more government power.

If libertarians and conservatives support this campaign, they deserve exactly what they will get.
 

The fact Brett, who is a conservative (he's for government power in a range of ways that leans in that direction or doesn't show much concern around here that amounts basically to the same thing de facto), doesn't like Clinton or Sanders isn't surprising. Ditto support of a Gary Johnson.

But, if being a bad President, objectively, is the line, the idea someone like Donald Trump would as a matter of mere competency will do better is hard to believe. Objectively. For instance, Brett said previously he figures -- if Trump cares to put in the effort (but why would that be a good bet? you know as compared to a former senator and Secretary of State?) -- he could rely on others to run things and give advice in areas where Trump doesn't have the skill-set to have expertise in doing.

Why would that be a good bet, given Trump's personality and how we have seen how he handled things so far? An objective analysis there would suggest we just cannot trust him to rely on others, to admit error, to show careful deliberation. This isn't a matter of ideology. It is a matter of objective judgment. OTOH, for someone biased against Democrats etc., people can be convinced otherwise.

Anyway, the stages of grief might kick in & BP might be among the "acceptance" class. Got some months to convince people like him to vote for Trump in swing states like Colorado especially. OTOH, the Never Trump brigade is coming out. So, Mr. Lochner himself, David Bernstein, has decided Clinton is better than Trump. Orin Kerr at Volokh Conspiracy also has come out as a Never Trump. Our host here, Prof. GM apparently voted for Kasich, unless he was one of the 3% in Indiana who voted early and voted for someone else on the Republican ballot. [See his post at Concurring Opinions]

Meanwhile, a few more states (and Guam/DC for Dems) to vote. Given what happened so far, is it really a bad bet for the craziness not being quite over?
 

ETA: Plus, if someone is a libertarian, again Brett has recently come out as a conservative, Trump surely isn't one. He's for government power. Tossing around "fascist" might be harsh, but his argument that we can trust him to do all these things (details forthcoming) by the force of his personality apparently doesn't help.

The reasoned conservative or those worried about government power can support a Hillary Clinton. I'm not saying that in their eyes, that would be TOO palatable, but if they could at least hold on to the House, you'd have a split government. She's probably more simpicato on foreign policy than many liberals would like. Domestically, sure, you'll have some problems, but her "baby steps" path is better than the "who knows" path of a Trump. Plus, she'll have to compromise to have things passed thru Congress.

Plus, the great loss in '64 was but a new beginning for Republicans, right?
 

Query: What will be the direction of the GOP Tea Party base? It has significantly contributed to the pending destruction of the Republican Party. Maybe that was its purpose.

Note: The five-stages grief/loss process does not address what can happen if the Anger step turns into Rage. I appreciate Brett's efforts of subtle intervention of SPAM I AM!


 

Joe: [I]f Trump cares to put in the effort (but why would that be a good bet? you know as compared to a former senator and Secretary of State?) -- he could rely on others to run things and give advice in areas where Trump doesn't have the skill-set to have expertise in doing.

Clinton really should not play the experience card against Trump.

1) A super majority of American voters have somewhere between disapproval to loathing of the political establishment and Trumps primary selling point is not being part of that establishment.

2) Trump has far more executive experience than any other candidate in this race. To the extent that you count SecState as an executive position, Clinton was a complete disaster. Her defense against the Benghazi fiasco was that she had no control over the bureaucracy denying her ambassador security.

3) As a former Senator, Clinton will claim legislative experience, but she was a failure enacting legislation as well. Clinton's baby was Hillarycare, which she could not move through a Democrat Congress. He claim to fame as a senator was voting for the Iraq War before she voted against it.

The problem with Trump is not that he would make an incompetent executive, but rather that he may prove all too competent and put Obama's rule by bureaucratic decree on steroids.


 

Shag: Query: What will be the direction of the GOP Tea Party base?

Trump has split the movement like he split the GOP.

I no longer recognize some of the people in our movement. Gateway Pundit blog used to be a center for Tea Party activities and has now turned into the Teen Beat magazine for Trump groupies.
 

"The problem with Trump is not that he would make an incompetent executive, but rather that he may prove all too competent and put Obama's rule by bureaucratic decree on steroids."

Cruz wouldn't have ended the rule by decree; You can see that in the way he attempted to game the delegate selection. He's a schemer, and not the sort to let the system work against him if he can game it. The only thing that's going to end Presidential rule by decree is consequences. Either through the legal system, or impeachment.

Any Democratic President is going to be utterly immune to impeachment, so long as there are at least 34 Democratic Senators. And Hillary is the last person who'd forget to make sure the DoJ and AG were in the tank for her.

Essentially, your best bet to end Presidential dictatorship is Trump, because he'd be subject to impeachment if he over-reaches, not being either party establishment's creature.
 

This comment has been removed by the author.
 

"Essentially, your best bet to end Presidential dictatorship is Trump, because he'd be subject to impeachment if he over-reaches, not being either party establishment's creature."

Republicans are going on the Trump train now and will have a dog in the fight if he becomes President. Impeachment and removal would be seen as threatening them and their brand, helping the Democrats. The "bet" here is weak in that you still need to get that last 1/3 against him. There is probably at least that many who ACTIVELY will be on his side. But, you know, if you try hard enough, some will be convinced he's a good idea. Especially if "Democratic" is your concern.
 

"We already reviewed the provisions of the Espionage Act which Clinton violated hundreds of times. "

See, this is what I mean. I think deep down you actually realize how 'meh' these alleged crimes are. Instead of describing it as what allegedly occurred ('she sent information to another government employee in a way prohibited by a protocol enacted to secure the information') you constantly feel the need to dress it up ('Espionage Act.'). The reaction most people have had to the recent prosecutions of leakers who *knowingly* sent information to non-governmental employees (journalists) has been 'the administration seems to be really over-reacting here, that's a hundred year old, technical overcriminalized offense).

"Trump has far more executive experience than any other candidate in this race. "

None in government.

"the Benghazi fiasco"

I don't think a single person who didn't already dislike Clinton has had their mind changed by the Benghazi 'scandal.' It's the perfect example of conservative overreaching hyperbole in regards to her, as I've seen the alleged wrong there be half a dozen different things at any given time.

"she was a failure enacting legislation as well. "

What legislation did Cruz enact?



 

See, that's what we mean. You just don't care. No amount of evidence of her criminality can get through your neener-neener defense. She's a Democrat, so her crimes are, by definition, "meh". People are in prison for less, but, meh. She put national security secrets on an open server that we know got hacked at least once. Meh.

Apathy is impenetrable. Once somebody doesn't care, they're not listening anymore.
 

Brett seems to be leaning towards Trump " ... because he'd be subject to impeachment if he over-reaches, not being either party establishment's creature." That would make for a novel campaign motif for Trump that might adapt a popular song of my youth with: "Elect me, your sweet impeachable me ...." Based upon Trump's history, it would be near impossible for him not to overreach despite his small hands.

But back to SPAM I AM!'s Anger stage turning into Rage, the concern is that SPAM I AM! has referred to the alternative of "armed revolution" against governments in dealing with dissatisfactions that he thinks are tyrannical. For SPAM I AM! the Tea Party movement doesn't work as a substitute. Maybe SPAM I AM! should consider Brett's advice and avoid Rage.
 

Yes Brett, I don't care a lot about technical violations of obscure, mala prohibita laws. Ironically, given your charge of partisanship, if there were a different, or no, letter beside the alleged culprit's name I bet you'd feel the same.
 

I'm actually not much of a fan of Mrs. Clinton. She seems to have the kind of play-it-safe, pandering approach just to keep rising approach I generally loathe combined with low levels of charisma. I don't much trust her, but I don't much trust any politician. I prefer her over Trump or Cruz because I think the former is a true buffoon and I disagree with the latter's social conservatism. I don't always vote for the person with a 'D' beside their name, I've voted GOP and 3rd party as well.
 

Good God, Mista Whiskas! Wrongly handling national security secrets isn't some obscure, technical offense, like picking up a feather, and getting nailed because it happened to fall off an eagle. We've been over this before: It's no more obscure that people with security clearances are legally obligated to take care in how they're handled, than it's obscure that accountants aren't permitted to just pocket the money.

It's all "meh" to you, because of her party ID.
 

"I don't always vote for the person with a 'D' beside their name, I've voted GOP and 3rd party as well."

Calling him a liar?
 

If he's going to claim that communicating classified information over an unsecured server when you've got a security clearance is an obscure, technical violation, then he's either a liar or irrational. I'm betting irrational.
 

"communicating classified information over an unsecured server when you've got a security clearance"

Look at all the qualifiers you have in there that make this activity, which in itself (sending an email) is considered by no one evil, 'serious': 'classified', 'unsecured,' when you've got a security clearance.' When you have to add all these things it's because even you know deep down this is the epitome of a technical, mala prohibita offense (I notice not even you or Bart are willing to argue this is mala in se, which is how John Q. Public tends to define a morally serious offense).

If what Clinton did was a 'serious' offense, then what would you call what an actual spy does? Someone who sends classified information to an enemy? Super-duper serious? Talk about irrational, you're just blinded by your partisan hate of the woman. You've shown you got no sense of scale in these matters, just black and white.
 

Being pro-choice is a very important issue for me, but if that was taken off the table I would easily vote for several in the GOP field (Kasich, Paul, Christie) over Sanders and quite possibly the first two over Clinton. I actually could easily find myself in more agreement with conservatives on things if the conservatives didn't take every issue I sort of agree with them on and then demand the most extreme position possible. For example, I'm against quite a bit of gun control ('one gun a month' laws, 'buyback programs,' storage requirements, may issue, etc.), but I think background checks should exist for all purchases. I'm against racial preferences, but opposition to this is usually couched in such a chauvinistic mix of 'white victimhood' narratives and obtuseness about racial disadvantages, I hate taxes, and I actually think we should have less immigration (legal and illegal), but I think singling out groups based on their faith or such is abhorrent. Everything with the Right today seems to be Totally Extreme!!!! such that criticizing Clinton or the Obama administration for foolishly sending those people killed in Benghazi in there in the first place is not good enough, one must insist that they could have been saved but were not due to HRC/Obama's evil or fecklessness in not calling in the cavalry, one can't just find the Fast and Furious program to be an incredibly foolish and incompetently carried out program, it has to be a sinister long-term anti-gun rights plot, it can't be that environmentalists exaggerate AGW, no, there's a sinister conspiracy of the world's scientists and government officials to make the whole thing up. That kind of paranoia is not just too incredible to me, it's tiring.
 

"When you have to add all these things it's because even you know deep down this is the epitome of a technical, mala prohibita offense "

Well, sure, it's not assault and battery. But it's not, "Eh, whatever", either. People are in prison for doing the same as Hillary, only to a lesser degree, and properly so.

I've worked on at least one secret project. Even now, if I told about it, I'd be committing a crime. My brother works out of a bank vault, and if he actually told me what he's doing, he'd go to prison. People who deal with these things are very clearly informed that getting careless with the information isn't just a bad idea, it's a crime.

People who don't have political clout go to prison all the time for these offenses, and they're serious offenses, because you can't actually have an intelligence program if the people working in it are allowed to identify secret agents in their facebook postings. The whole point of having a secure system for handling classified information is defeated if a Secretary of State starts flinging it back and forth on an insecure system just because she wants to be able to wipe the data if a subpoena shows up.
 

Bottom line, in case you're unclear about this: Hillary was very clearly told that communicating these sorts of things on an unsecured system was illegal. Big time illegal. She had to take a course in how to identify and handle this stuff. She had to sign a paper acknowledging this. You don't get these clearances without going through that.

She knew damned well what she was doing was a crime, when she set out to do it. And did it anyway.
 

Brett uses a high school debating technique with this:

"My brother works out of a bank vault, and if he actually told me what he's doing, he'd go to prison."

This is a straw-man approach that we are in no position to challenge. Oy-ge-vault!



And Brett's personal claim of having "worked on at least one secret project" suggests he has a memory problem. But it's no secret where Brett is coming from. And he's a flannel-mouth.
 

What you do when working on a secure project might be secret, but the requirements aren't.

She knew using her private server for classified information was illegal.
 

Might I assume that the secret project Brett worked on could have been for the KKK?

By the Bybee [expletives deleted], by "assume" I'm not suggesting "probably."
 

Brett

1. In this country people are assumed innocent until their case, in all the relevant particulars, is heard before a court of law. I'm not sure any crime was committed, neither are you. We're both going off of media reports and out layperson's knowledge.

2. But even assuming what was done was criminal, once again, it was a mala prohibita crime. By their nature these crimes are not usually seen as significant moral stains. That's not something that's party specific, it's the way these things are usually seen (hence the ancient distinction between mala prohibita and mala per se).
 

Or, to put it differently, "Neener, neener".
 

This comment has been removed by the author.
 

"So was there a particular moment or person that settled the question. The answer may surprise you--I'll save that for another post."

The wait continues.
 

While it may be moot right now regarding Cruz, check out the Legal History Blog post "John Jay on 'Natural Born Citizen'" and note my two comments, the 2nd corrective of the 1st. While Cruz may have his eyes on 2020, perhaps we, the usual suspects, could explore what Cruz may be planning to do between now and the 2020 campaign that should start in 2019 or earlier. Let's not waste this opportunity for foresight (and I don't mean golf).

Let me start it off by suggesting that Trump industries might engage Cruz as General Counsel to play the legal role that the late Roy Cohn played for The Donald. I would venture to say that Ted could be as snarly as Roy, and The Donald may have taken a shine to Crux.
 

Yes Brett, pointing to the centuries old distinction between mala per se and mala prohibita offenses as the basis of my contention is certainly the equivalent of 'neener-neener.' Wow, you're blinded with partisanship.
 

Carly Fiorina broke the glass ceiling at HP and then almost its floor. Carly broke the glass ceiling of the Cruz Canadacy and ended up on the floor as did the Cruz Canadacy in Indiana. Coincidence? Carly's a jinx?
 

What a sad tale Carly Fiorina is. It was obvious from her debate performances that she's a very sharp, intelligent person. But in a sad attempt to get herself out there with the conservative base she showed a willingness to say, and stick by, whatever she thought they wanted to hear. In the end they didn't stand by her, then turned to her to try to bolster Cruz's flailing campaign, and her literal fall just underscored her metaphorical one.
 

It's a century old distinction, whose only real significance used to be that "ignorance of the law is no defense" only applied to malum per se offenses. (Because you were supposed to know you weren't supposed to do those things, even if you didn't know they were illegal.) It never implied that malum prohibitum offenses weren't real crimes.

But we know that Hillary wasn't ignorant of the law. She deliberately set out to violate it.
 

This comment has been removed by the author.
 

"whose only real significance"

https://www.youtube.com/watch?v=EK6Xa1Tz-8w

Anyway, perhaps Shag can clarify -- was the "only real significance" traditionally that regulatory crimes were an exception to the ignorance of the law maxim? So, traditionally, from ancient times, if you didn't know a regulatory law, you were not liable? Now, me, I thought -- like Mr. W. said -- the line was between crimes deemed wrong in themselves, under natural law, and only regulatory wrongs.

But, live and learn.
 

Yes, Joe is correct. The main distinction Brett is between crimes that were thought of as evil or a moral sin and those that were not, in other words things that were 'technically' crimes. So now maybe you can see why many people are not rushing to moral judgment over this.
 

Like we can rely on a confused leftie like you to tell us anything.
 

Joe, I'm getting ready to leave for the Thursday liberal, some progressives, lunch. I may have some in depth comments upon my return home well fortified, i.e., me, not my home. The best I can do right now is to provide a link to an article that addresses a view of the Supreme Court in a particular case:

http://thinkprogress.org/justice/2014/12/15/3603686/supreme-court-if-youre-a-cop-mistakes-about-the-law-wont-stop-your-drug

Now I've got to think of a proper drink to celebrate Cinco de Maya. Maybe a new drink fortified with tequila: President Trump, Tear Down That Wall. It might be called a Trump Wallbanger. As an old Balkinization firend used to say, "Cheers."
 

Thanks. I pray you will have a good fifth of May meal.

https://www.whitehouse.gov/the-press-office/2016/05/04/presidential-proclamation-national-day-prayer-2016

Time to move on. GM has voted and all. Perhaps, he can give us the BOR surprise now.
 

Joe, Gerard is getting skilled in marketing: Buy the book. Recall with his Bio on Bingham, the title was suggested by the editor as a marketing tool, not of Gerard's making. So why give it away?

At lunch I asked my bartender how a Harvey Wallbanger was mad. I had substituted for its booze portions tequila with a slice of orange hinged on the rim, ordaining this the "Trump Wallbanger." Two were more than enough to energingize the political discussion. I personally paid for these Trump Wallbangers rather than have have Cinco de Maya adherents pay for them. Now I must admit that in all my salad years I never had a Harvey Wallbanger, as my drug of choice had been gin martinis. But I believe in a good neighbor policy and honor Mexican and Canadian adult libations on their holidays. I suspect it is a de facto Canadian holiday with its ex patriot's Cruz Canadacy in the dumper. But I didn't have a Labatts hancy. So a double nation toast with my Trump Wallbanger in hand,"O' NAFTA."

By the Bybee [expletives deleted], the rimmed orange slice well symbolized The Donald's hairdo.
 

Appreciated his three books but his writings on this subject on the two blogs makes me wary about his fourth. Your drink idea has been considered before ....

http://www.barlifeuk.com/barlifesite/index.php/2016/04/nola-bar-launches-the-trump-vodka-mexican-wallbanger/
 

That I did not know. (As Johnny Carson used to say.) I eliminated the vodka and other alcoholics substituting tequila, with the orange juice, and adding the orange slice, all in honor of Cinco de Maya, tied into the wall Trump would build. Basically it's a screwdriver with tequila. Back in the day when I did partake of screwdrivers, I would specify gin. A senor partner in a Boston law firm in the 1950s would instruct new associates that when dining with a client, it was okay to have a drink, but not vodka, because later in the day it would be better that clients be aware you've been drinking rather than just silly. Back then it was thought safe to drink vodka as it was thought to be odorless. Vodka is no protection from DUI charges, as I'm sure our resident expert is aware.
 

Ten years ago Shag et. al. talked about West Wing ending.

http://balkin.blogspot.com/2006/05/west-wing-and-constitution-finale.html

Ten years later ... a television reality star is running for President while a supporting cast member from West Wing is fighting for military vets (for real).

http://justiceforvets.org/

 

There is noticeably a bundle to know about this. I assume you made certain nice points in features also. Best Source Best Source Best Source
 

Post a Comment

Older Posts
Newer Posts
Home