The back-and-forth on dramatically increasing the number of federal district and circuit judges is splendid stuff. I'm particularly pleased that my friend Brian Kalt, who is a terrific scholar, now has a proposal named for him coined by another friend, Richard Primus, who also does fantastic work.
Having said that, I want to comment that Richard's hypothetical Idaho scenario is not far removed from what occurred in 1802 when Congress engaged in "court-shrinking." In 1801, the outgoing Federalist Congress enacted a Judiciary Act that created many new circuit judgeships. President Adams then appointed (and the Senate confirmed) many new circuit judges. (These were the infamous "midnight judges.") One year later, a Jeffersonian Congress repealed the 1801 Act.
What happened to the circuit judges confirmed in 1801? The answer is that they were fired. But how can that be? Didn't they receive lifetime appointments subject to removal only by impeachment? And even if they could be stripped of their authority (as per Richard's hypothetical of a "rotten circuit"), weren't they at least entitled to draw their judicial salaries for doing nothing?
An outstanding Note from five years ago went into these questions. (Jed Glickstein, After Midnight: The Circuit Judges and the Repeal of the Judiciary Act of 1801, 24 Yale L.J. Human. 543 (2012). Glickstein found that the Midnight Judges considered a constitutional challenge to their removal, but decided instead to lobby Congress to pay them their salaries. Congress refused to appropriate the money, and that's where the debate ended.
One conclusion you could draw from this precedent (which was part of an era of constitutional hardball) is that Congress can engage in court-shrinking in response to court-packing. Or perhaps there is the more modest conclusion that Congress should pay judges sent into Kalt Law limbo for their troubles, even if such payments are not constitutionally required. Or how about we turn away from this nonsense and focus on more pertinent problems.
Or how about we turn away from this nonsense and focus on more pertinent problems.
ReplyDeleteThe bigger issue, the membership of the judiciary, is a major thing.
One cannot really "turn away" from the issue on some level & once the appointment of judges were made into political process [which contra to some comments, also makes the judges at least indirectly a result of a popular process, which Balkin has noted results in an ability of political actors/the people to alter legal interpretation via the appointment process over time], the battle will be joined.
We can "move on" via some sort of compromise (the so called "gang of 14" decided only "extraordinary circumstances" would justify filibustering judiciary nominees at least, then apparently "appointed by Obama" or "we don't like the number of judges on courts he gets to fill" were one, for example, or the practice where George Bush Sr. gave Democrats basically a chance to select one out of four or whatever lower court judges etc) or the Democrats can simply give up as some wanted them to do with Gorsuch (don't have the filibuster, maybe for the pipe dream some Republican will later oppose Trump's replacement of Kennedy if its too extreme).
"Never Trump" types have less concern here, I think, since deep down they are conservative and are not as upset by the result of many of the people chosen. Again, a way to "move on" would for the most unfit to be rejected by a few Republican senators, to show there was some bare standard here. This would be somewhat subjective, but a few extreme examples have been cited at least. But, substantive acts like this has been hard to come by this year.
If nothing is done, sorry, Democrats are going to feel -- like they did with what happened to Garland -- something would have to be done years from now to try to balance things some. The same would be true if the sides were turned. As to the idea of expanding the courts now, that is an ill-advised idea especially in this political context. The defense (including the response to the "popularly supported" Trump justifying Gorsuch -- given Obama actually received the popular vote, I take that was an attempt at humor) didn't help the cause there.
Anyway, if would help if some compromise was developed though that is not in the spirit of the age apparently. For instance, I thought (not kidding) Trump would have been wily to support Garland with the proviso Democrats would support him on such and such (such as the replacement of Kennedy; can see a few Dems supporting the replacement in that situation). But, well, back to the important process of cutting taxes for rich people.
There's no turning back. Once the judiciary became a way of winning policy changes, rather than just enforcing changes won politically, the composition of the judiciary became just as political as the composition of Congress.
ReplyDeleteMaybe even more so, because while Congress produces statutory law, which can be repealed by ordinary majorities, the judiciary purports to be revealing Constitutional law, which was purposely rendered very difficult to change politically. The judiciary has gone from being the least dangerous branch, to the most dangerous branch, capable of imposing vast changes on the nation against the public's will, on the basis of just 5 votes.
How could the composition of the Supreme court not be supremely important and political?
No, the only way out at this point is through. Court packing is an inevitability at this point. Retaliation is an inevitability. This is going to be seen to the bitter end. Maybe we'll learn a lesson from it, or somebody will.
"One conclusion you could draw from this precedent (which was part of an era of constitutional hardball) is that Congress can engage in court-shrinking in response to court-packing."
ReplyDeleteThis leads me to something I've often thought about. How much should we be guided by the 'understanding' of the Constitution of the political institutions that were very close to, but not contemporaneous to, Ratification? I can see the argument that if in 1802 political institutional understanding was such, as indicated by the facts described here, that such court shrinking is OK, and that that is itself an argument in favor of that constitutional understanding. But, if that's true, what would we make of the Alien and Sedition Acts, passed by the political institutions of a day even closer to Ratification?
"Once the judiciary became a way of winning policy changes"
ReplyDeleteThe initial, first wave of this was done by the most conservative and libertarian court we've ever had (1900-1930's).
Keep in mind that the Constitution does not provide for judicial supremacy over the Executive and Legislative Branches.
ReplyDeleteGerard: Or how about we turn away from this nonsense and focus on more pertinent problems.
ReplyDeleteIf the prospect of Trump appointing the membership list of the Federalist Society to the federal bench was nonsense, the professors here would not be howling in unison at the prospect.
The absolute bureaucracy, which includes a judiciary assuming legislative and executive powers, is the bedrock of the progressive state.
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ReplyDeleteJoe: "Never Trump" types have less concern here, I think, since deep down they are conservative and are not as upset by the result of many of the people chosen.
ReplyDeleteNot as upset?
Every single one of the #NeverTrump libertarians/conservatives who ended up voting for Trump did so in part to keep Clinton from appointing more progressives to the bench.
Every libertarian/conservative, #NeverTrump or not, is thrilled at Trump's Federalist Society appointments to the bench.
The Federalist Society, I understand, had a membership described as conservative libertarians or perhaps vice versa. [reduncant?] SPAM fits that mold. Libertarians are not capable to governing. Their mantra is selfishness uber selflessness. The Federalist Society came about in response to the claimed activism of the Warren Court, most likely because of reaction to it foundational decision Brown v. Bd. of Educ. (1954, UNANIMOUS!) which led to the Civil Rights movement and Acts of the mid-1960s. I don't think the Federalist Society membership has changed that much. We're in a Second Gilded Age. The income/asset inequality gap started with the Reagan Administration and the gap will widen if the Trump/GOP tax "plan." Trump and the Federalist Society match up in many ways, not just with judicial appointments. It's a Devil's Bargain with the foundation of selfishness uber selflessness.
ReplyDeleteHow much should we be guided by the 'understanding' of the Constitution of the political institutions that were very close to, but not contemporaneous to, Ratification? I can see the argument that if in 1802 political institutional understanding was such, as indicated by the facts described here, that such court shrinking is OK, and that that is itself an argument in favor of that constitutional understanding. But, if that's true, what would we make of the Alien and Sedition Acts, passed by the political institutions of a day even closer to Ratification?
ReplyDeleteOriginalism's faint grasp on respectability as a theory rests on the claim that we are bound by the "original public meaning/understanding" of the Constitution. Statements made and events which occurred before ratification can therefore provide evidence of what that "original public meaning/understanding" was. Every day which passed thereafter weakens the evidence. The 1790s were a decade of dramatic change, one of the most significant in world or US history (French Revolution). By 1800 the world was a very different world than the one which existed in 1787-8. Events from 1802 are worthless as evidence of what people thought 15 years earlier.
Of course, anyone with a lick of sense rejects originalism, so that's no problem. For them, what happened in 1802 is a (weak) precedent; combined with other factors, it can impact our understanding today. That's the only thing which matters.
Originalism's grasp on respectability, (Which is so vice-like that non-originalists pretend to be originalists when the public is thought to be looking.) rests on it being nothing more than the ordinary way you go about interpreting a text, ANY text, if you genuinely want to know it's meaning. And, if we are not bound by the Constitution's meaning, we are not bound by it at all.
ReplyDeleteLiving constitutionalism, by contrast, is how you go about "interpreting" a text if you don't give a bucket of warm spit what it actually means, but instead are simply determined to arrive at a meaning you like regardless of any evidence. It's not even a technique, as such. Just a rejection of the idea that you're bound by what the text actually means, and a toolbox full of excuses for pulling a meaning you like out of your *ss.
Shag: The Federalist Society came about in response to the claimed activism of the Warren Court.
ReplyDeleteThe Federalists started in 1982 to offer an alternative to the overwhelming progressive bias in law schools. It had nothing to do with your 1950s and 1960s hobby horses. I was indeed an active member at FSU Law back in the 90s.
Libertarians are not capable to governing.
That is the point, actually. Libertarians do not attempt to govern your life.
Their mantra is selfishness uber selflessness.
I know this is an alien concept to progressives and other totalitarians, but living your life as you please so long as you do not harm others is not selfishness. There is no duty to serve the state.
Mark Field: Of course, anyone with a lick of sense rejects originalism, so that's no problem.
ReplyDeleteThis is why the choice of who chooses judges has become so important. When one party sees the judiciary as a form of dictatorship free to ignore the law as written in order to impose preferred progressive policy, there is a fundamental problem.
SPAM discloses his lack of knowledge of the the movement in the 1970s that resulted in the formation of the the Federalist Society. SPAM took the bait as a law student who was in thrall with Ayn Rand, purportedly a libertarian, but actually a libertine. Rand's mantra was selfishness uber selflessness. Look at her admirers over the years. I understand the average libertarian has 0.3 children. SPAM seems to reflect what the Federalist Party stands for. In response to my:
ReplyDelete"Libertarians are not capable to governing."
SPAM responded:
"That is the point, actually. Libertarians do not attempt to govern your life."
This reflects SPAM's anarchy-libertarian mode that ignores events that have occurred in America, throughout the world, since the 1787 Constitution was ratified. Societies are no longer self-governing. The Constitution is not a libertarian document. Rather, the Preamble:
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
looks to progress over time.
Query: Who else thinks SPAM is the poster boy for the Federalist Society?
Keith Whittington's post is quite interesting and worth a read. Early in the post, he says:
ReplyDelete"The courts are the third branch of government laid out in the U.S. Constitution. While individual judges are made independent from the elected branches of government, the judiciary as a whole is largely made dependent on the goodwill of the legislature and the executive. "
Add to this my earlier comment: "Keep in mind that the Constitution does not provide for judicial supremacy over the Executive and Legislative Branches."
Whittington closes his post with some thoughtful observations regarding the current subject.
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ReplyDeleteBD: "That is the point, actually. Libertarians do not attempt to govern your life."
ReplyDeleteShag: This reflects SPAM's anarchy-libertarian mode that ignores events that have occurred in America, throughout the world, since the 1787 Constitution was ratified. Societies are no longer self-governing.
Libertarianism is simply another term for classical liberalism, adopted after FDR progressives misappropriated and bastardized the term.
This nation was a classically liberal nation (albeit an unequal one) over its first century under a classically liberal constitution creating the most limited government of the period. During that century, the United States went from being a bankrupt colonial backwater to the most productive and thus prosperous nation on Earth.
SPAM still does not understand how the FS movement came about in the 1970s. By the time of SPAM's immersion in selfishness uber selflessness in the 1990s, SPAM merely swallowed the FS mantra. The roots of the FS movement were based upon reactions to the judicial activism of the Warren Court, as well as that of the succeeding Burger Court. The conservative/libertarian anguish with Brown, the Civil Rights movement and Acts continued into the 1970s as the solid south became the base of the former Republican Party of Lincoln, continuing to this day. Of course the Rehnquist Court eventually became activist. But post Obama, with Trump, there seems to be a return to those Watergate days of Nixon. Trump and FS members share much in common beyond the judiciary. While direct challenges to Brown had diminished, there seems to be a revival with Trump and the FS going along for the ride.
ReplyDeleteShag:
ReplyDeleteYou started off by claiming the Federalists were created in reaction to Brown, the CRA and the Warren Court back in the 1950s and 1960s. Now its some secret movement in the 1970s.
We FSU Federalists had one primary activity - educating our fellow students about the rule of law in contravention of much of what they were being taught in class. We did this by speaking up in class and by holding frequent public debates between visiting Federalist scholars and either an FSU professor or a visiting progressive scholar. Part of what made this possible was a blind grading system at FSU and two rather tolerant progressive con law profs (both of whom later coached me in moot court competitions). Sorry to disappoint you, but there was no discussion of Brown, the CRA or the Warren Court, unless we were debating a particular case of that Court. By the time I graduated, our Federalist group was the largest student organization at the law school.
SPAM is back glorifying The Gilded Age of the late 19th century as America's best days. In SPAM's mind it seems that that was when America was great, stating:
ReplyDelete"During that century, the United States went from being a bankrupt colonial backwater to the most productive and thus prosperous nation on Earth."
Was America #1 back then militarily, economically and politically internationally?
SPAM deleted his 9:36 AM comment perhaps replaced with an undisclosed corrective in his 9:56 AM comment?
ReplyDeleteShag:SPAM is back glorifying The Gilded Age of the late 19th century as America's best days.
ReplyDeleteYou can denigrate the laissez faire period as much as you like, but during that time, each succeeding generations standard of living roughly doubled for a solid century. By the "Gilded Age," our workers were the highest paid in the world. Today, the Millennials have a worse standards of living than their parents.
Was America #1 back then militarily, economically and politically internationally?
Economically and I would argue politically. We were not a military superpower until WWII.
Shag:
ReplyDeleteI corrected the dates in my 9:36 post.
Originalism's grasp on respectability, (Which is so vice-like that non-originalists pretend to be originalists when the public is thought to be looking.) rests on it being nothing more than the ordinary way you go about interpreting a text, ANY text, if you genuinely want to know it's meaning. And, if we are not bound by the Constitution's meaning, we are not bound by it at all.
ReplyDeleteThe ordinary way to interpret texts in the age of Madison et. al., as I have quoted repeatedly and as people like Mark (who knows his history) and Dilan Esper (who comments here at times) have noted, was the common law approach where the general terms of the Constitution was applied case by case, the changing understanding of facts like the current nature of commerce, equality, due process etc. develop over time with experience. This is how ordinary people apply texts including religious texts. Other ordinary people might use another approach since there is no "one" way to do things, so it is a matter of developing best practices.
Living constitutionalism, by contrast, is how you go about "interpreting" a text if you don't give a bucket of warm spit what it actually means
People here care deeply what text actually means and have spend years here discussing it, including citing history, precedent and general principles. The fact you don't like what they substantively argue doesn't mean they don't care. But, debating conclusions is harder than simply arguing bad faith. Note: strongly disagreeing with someone doesn't mean they are acting in bad faith. They can simply be very wrong. This happens repeatedly though it is hard for some to get.
but instead are simply determined to arrive at a meaning you like regardless of any evidence
People here repeatedly cite evidence.
It's not even a technique, as such. Just a rejection of the idea that you're bound by what the text actually means
What the text "actually" means is the whole debate here. Assuming the conclusion does help to make the other side seem wrong.
Once the judiciary became a way of winning policy changes, rather than just enforcing changes won politically, the composition of the judiciary became just as political as the composition of Congress.
ReplyDeleteSo, if Congress changes the law and bans handguns, the Supreme Court should not strike it down? Brett says no, since he thinks the 2A stops that. So, yet again, the debate is on the details. This was true since the Democratic-Republicans strongly debated with the Federalists on what the law meant and the correct approach for the judiciary.
The courts are 1/3 of the government and have an important role, so yes, they will be very important, as seen back then.
That's the naturalistic fallacy, Joe. Just because the courts have become the weapon of choice for subverting democracy doesn't mean they should be abused in that way.
ReplyDeleteThe very case under discussion here on the subject of the power of Congress to transfer cases and judges to different circuits, Stuart v Laird, makes no use of any "originalist" reasoning. Nor, for that matter, does it make use of much analysis of any kind other than a very abbreviated textualism. Here's the entirety of the Court's opinion on this point:
ReplyDelete"Congress has constitutional authority to establish from time to time such inferior tribunals as they may think proper [not cited, but Art. I, Sec. 8 and Art. III, Sec. 1] and to transfer a cause from one such tribunal to another [no text cited and none is obvious]. In this last particular, there are no words in the Constitution to prohibit or restrain the exercise of legislative power."
That's it. To tie this back to Prof. Magliocca's post and some of the others, the final sentence I quoted seems to approve "Constitutional hardball" if it's literal enough. Though as Richard Primus argues, a sufficiently motivated judiciary might find reasons.
Just because the courts have become the weapon of choice for subverting democracy doesn't mean they should be abused in that way.
ReplyDeleteI'm not saying this.
Again, there is nothing novel -- it was there from the 1790s -- about political parties disagreeing on the proper interpretation of the law & given the courts are filled by political means & there are political means to affect them to some degree, the other two branches will fight over that including filling the courts.
Likewise, this is also not actually disputed, courts have the power to "subvert democracy" if that means overturning specific acts of various parties via judicial review. The real debate tends to be details.
People care about the law here. There is a strong disagreement on details. As to Stuart v. Laird supports long practice: "sufficient to observe that practice and acquiescence under it for a period of several years" over re-litigating first principles. This was after about a decade.
Brett: Living constitutionalism, by contrast, is how you go about "interpreting" a text if you don't give a bucket of warm spit what it actually means
ReplyDeleteJoe: People here care deeply what text actually means and have spend years here discussing it...
The professors here generally discuss tactics for getting around inconvenient text. For example, Jack's "living originalism" eliminates nearly all limiting definition from the text to create general constitutional principles broad enough accommodate any progressive policy he favors. The arguments for ignoring the express Obamacare provision limiting subsidies to state created insurance exchanges approached the surreal.
Since there is some confusion apparently, I'll say this separately, on some level, there is nothing wrong with political branches fighting this out, just like there is nothing wrong with judicial review.
ReplyDelete"Constitutional hardball" is not always wrong either, though like hardball generally (outside of the baseball diamond), I personally would use it warily.
There are limits (both constitutionally and as matter of good practice) though of course drawing lines will result in a lot of argument.
"the ordinary way you go about interpreting a text, ANY text, if you genuinely want to know it's meaning."
ReplyDeleteThat's wrong. The example that springs immediately in mind is the Bible. Start at the beginning. Lots of believers read Genesis and come away thinking God made creation in seven 24 hour periods; others think he did it over 'God days' or eons. Some think He made man 'in His image' and that means God looks like us, others think that means we have a soul or rationality or free will or such. Some think He literally made Adam from clay, others that he set evolution in motion. It'd be silly to say that Saint Augustine or others who didn't read the text literally and strictly didn't give a warm spit about the meaning. But it's natural to read a text with lots of things other than the four corners of the text in mind in determining it's meaning.
The thing is, parts of the Constitution simply cry out for 'living constitutionalism' if by that it means using modern sentiment and information in applying a principle derived from the text. Take the prohibition on 'cruel' punishments. What's cruel is a function of the sentiments, information, etc of a society deciding the matter. The Founders knew that that is what that concept means and entails. In their day whipping may not have been considered cruel, but in our day most people would find it so. If we wanted to change the amendment to reflect our modern understanding that whipping is prohibited how would we do it? It already says 'cruel.' Would we say 'cruel (and by that we mean modern understandings of cruel, including whipping!)' punishments are prohibited?
ReplyDeleteSimilar things can be said for terms like 'unreasonable,' 'excessive,' 'due' etc.
I find the biblical example a good one and these interpretative debates bring to mind that sort of thing.
ReplyDeleteI think the biblical example is a good example of why living constitutionalism is illegitimate. Why does the Bible get reinterpreted in this way?
ReplyDeleteBecause it can't be amended!
This amounts to an admission that living constitutionalism is a way of changing the meaning of the Constitution, not finding it. Basically a back-door amendment process for changes that can't be brought in by the front door because they're not popular enough.
I'm sure there are some people who get an understanding of Biblical text in a way to 'get around' some inconvenience of the text, but again, do you really think Saint Augustine and Billy Graham, to take two examples of people who had a very different understanding of the text in Genesis, were doing that? I think both of them wanted to understand the text very much and they just came to two reasonable yet very different readings of the text. Text is like that...
ReplyDeleteI thought the deal with the Bible was that it can't be wrong. Under every Christian doctrine that I know of, God's grace can modify or dispense with the prescriptions in the Bible.
ReplyDeleteBack to more prosaic matters. What rational forms of Constitutional interpretation do is recognize that we gain understanding of what the generally vague terms of the Constitution mean by factors such as the text, experience over time, precedent (properly understood), changing real-world conditions, the impact of amendments, etc.
Mr. W:
ReplyDelete"the ordinary way you go about interpreting a text, ANY text, if you genuinely want to know it's meaning."
That's wrong. The example that springs immediately in mind is the Bible.
We are discussing written constitutions, statutes and regulations.
The only way to enforce these writings is as written.
If the writing is too vague to interpret, the law should be void for vagueness.
All other options are judicial common law legislation.
think the biblical example is a good example of why living constitutionalism is illegitimate. Why does the Bible get reinterpreted in this way?
ReplyDeleteBecause it can't be amended!
This amounts to an admission that living constitutionalism is a way of changing the meaning of the Constitution, not finding it. Basically a back-door amendment process for changes that can't be brought in by the front door because they're not popular enough.
Why can't the Bible be amended? Plus, again, this assumption of one answer is unfounded. Biblical interpretation occurs for various reasons. We had scriptures before the "New Testament" was in place. People interpreted it in various ways [see the text of books in document alone]. THEN, the scriptures were amended to include more books. At least, most Christians thought it was rightly amended.
The argument as a whole doesn't follow. The "changing" of the basic terms of the document is denied. The very nature of the terms require some specific development over time. This was known by the parties. For instance, it was well known the specifics of the 14A's terms like the complete breadth of "privilege" and "immunity" would depend on future application. The fifth section gave Congress specific flexibility on the point regarding enforcement.
Amendment is hard which factors into how the Constitution is interpreted but that doesn't amount to the alleged disreputable nature of Brett's bugaboo here.
I thought the deal with the Bible was that it can't be wrong.
Well, first, depends on what you mean by "wrong." Second, various types of Jews and Christians have different views on the specifics there.
It can't be wrong if rightly interpreted. :)
ReplyDelete"The only way to enforce these writings is as written."
ReplyDeleteThis just begs the question, which is, what's the correct way to enforce the writing? This requires understanding what the writing means, and, as my Genesis example shows, there's often more than one good faith way to think about a writing, to derive the meaning of it so that one can apply it to myriad applications.
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ReplyDeleteLibertarians were made in God'a image? If so, I wonder what explains Jesus?
ReplyDeleteBut the Trump/GOP tax "plan" will merge church and state to accommodate the Revengelicals (formerly know as Evangelicals) supporting Trump - and Moore.
The concern Brett has seems to be based in the idea that 'living constitutionalism' somehow works an illegitimate 'amendment' bypassing the amendment process. I don't think that, properly done, it does that.
ReplyDeleteTake as an example TN v. Garner which involved the question of whether the 4th Amendment's prohibition on unreasonable seizures prohibited a blanket rule/policy of using lethal force on fleeing suspected felons. In an opinion which seems 'originalist' it was argued: at the time the 4th was ratified the common law rule was that police could use lethal force to seize fleeing suspected felons, therefore the 4th can't prohibit that practice. The majority opinion, which was what Brett would call a 'living constitutionalism' decision, instead argued: when that common law rule was put in place it was justified by the facts that felonies were capital crimes and there weren't so many felonies, both of those had changed by 1985, therefore the 4th Amendment could prohibit at least some of that practice.
Did Garner 'amend' or change the 4th Amendment? In 1795 what was prohibited by it were things considered unreasonable seizures and they were prohibited precisely because, giving the written text effect, they were considered to be unreasonable, in 1985 what was prohibited by it were things considered unreasonable seizures and they were prohibited precisely because, giving the written text effect, they were considered to be unreasonable. The 'change' was not to the directive of the text, it was in what was that to fall under that directive, that change was due to the fact that related factors had indeed changed; certainly when commanded to examine for 'reasonableness' one should take note of important related factors (that's what being reasonable means, and meant in 1795).
Indeed, as with my 8th Amendment example, if this does amount to an 'amendment' how would one amend the 4th to enact this change? What word would be changed? In both understandings what's being done is 'unreasonable seizures' are being prohibited. What, would we pass an identical version of the 4th but it would then have to be understood to be 'different' than the 18th century version because the 'public meaning' of 'unreasonable seizure' is different? That's...absurd.
BD: The only way to enforce these writings is as written. If the writing is too vague to interpret, the law should be void for vagueness.
ReplyDeleteMr. W: This just begs the question, which is, what's the correct way to enforce the writing? This requires understanding what the writing means, and, as my Genesis example shows, there's often more than one good faith way to think about a writing, to derive the meaning of it so that one can apply it to myriad applications.
If a law is as vague as many translations of the Bible, then it should be void for vagueness.
"If a law is as vague as many translations of the Bible, then it should be void for vagueness."
ReplyDeleteHonest, reasonable believers come to vastly different ideas of what the word 'day' in Genesis means, that's a heck of a lot less open to vagueness than 'cruel,' 'unreasonable,' 'due' etc, but the 8th, 4th and 5th are not void for vagueness. These are big concepts that have broad possible meanings, I'm sorry if this frightens you out of some child like need you have for the world to be neat, tidy and black and white. That's not going to be found in a Constitution, no matter how much you may need it at some level. This is a Constitution we're expounding, after all.
Mr. W:
ReplyDeleteGenesis is a millenia old oral tradition offered in the form of allegories, reduced at some point to writing and then translated multiple times. It is impossible to determine an original meaning. Any law thus written should be considered void for vagueness.
When the Constitution uses broad terms like "due process" or "cruel and unusual punishment" without providing a definition, then this is an invitation to the Congress and courts to define the term. These terms are the exception rather than the rule.
A reminder that SPAM, a textualist, conveniently "imputes" meanings that do not appear in the text of the Constitution when it serves his libertarian mantra: Selfishness uber selflessness.
ReplyDeleteSPAM seems to be advising the Revengelicals (formerly known as Evangelicals) to void vague translations of the Bible that their faith has been based upon.
Can we assume that SPAM has libertarian "wet dreams" with his daily re-readings of Atlas Shrugged?
Query: How will our dynamic dyslexic duo, Bert and Brat, fare with the Trump/GOP tax "plan"?
Shag: SPAM seems to be advising the Revengelicals (formerly known as Evangelicals) to void vague translations of the Bible that their faith has been based upon.
ReplyDeleteApples and kumquats.
God grants us free will and we are responsible for understanding and following God's law.
In the case of interpreting constitutions, statutes and regulations, courts are determining whether the government can direct our lives under penalty of the loss of our life, liberty and property.
Shag: Query: How will our dynamic dyslexic duo, Bert and Brat, fare with the Trump/GOP tax "plan"?
ReplyDeleteMixed bag, but more good than bad, but which still could be changed at the last minute.
Good:
1) Lowering our corporate income taxes to the level of socialist Sweden so our business taxes are competitive internationally.
2) Eliminating multiple deductions and credits, like the state tax deduction subsidizing high Blue state and city tax rates.
3) Raising the personal deduction to better approximate the basic cost of living so income taxes are focused on disposable income.
Bad:
1) The combination is lowering the bottom rates and raising the personal deduction is going to remove more people from the tax system and shift even more of the burden to the top 20% of earners, who already pay 75% of the bill.
2) Like the 1981 reform, this bill is larded up with special tax goodies to buy votes.
Just as SPAM doesn't understand the Constitution, SPAM doesn't understand the Trump/GOP tax "plan." Note that SPAM in his "good," "bad" "anal"-ysis fails to mention the resulting deficit.
ReplyDeleteBased upon available stats on earnings of rural lawyers with plenty of time on their hands to troll legal blogs on the Internet, SPAM and other Trump "populists" will be losers with the "plan."
Where and how, is SPAM's:
ReplyDelete"God grants us free will and we are responsible for understanding and following God's law."
documented and enforced?
Does "God's law" support the libertarian mantra: Selfishness uber selflessness?
Shag:
ReplyDeleteGovernment should adopt the least ecomically destructive tax code and then conform spending to the resulting revenues.
One of the reasons we need a constitutional convention relimiting government is because a representative democracy where people can vote tgemselves their neighbor’s money cannot accomplish the above reform.
SPAM's:
ReplyDelete" ... because a representative democracy where people can vote tgemselves their neighbor’s money cannot accomplish the above reform."
is SPAM's back-asswards way of stating the libertarian mantra: Selfishness uber selflessness.
If this were the basis for a second constitutional convention, how might financial markets react? Of course, SPAM's economics are as bad as his history. Perhaps in SPAM's mind, this would take us back to The Gilded Age of the late 19th century when America was really great - before the 16th A.
Shag:
ReplyDeleteSince keeping your own earnings is "selfishness," then you would not mind if we conservatives elect a government committed to placing a special surtax on city dwellers and use that money to provide the rest of us with a tax credit on the ground that cities are cesspools of unearned wealth, corruption, crime and violence?
Shag: If this were the basis for a second constitutional convention, how might financial markets react?
ReplyDeleteOccasionally, you stumble into a very good question.
A second constitutional convention dedicated to a genuinely equitable and limited tax code and shutting down most government redistribution of wealth should logically affect the market in two converse ways - equities and debt reliant upon our current progressive tax code and redistribution of wealth (most importantly corporate welfare) would tank, while the rest of equities and debt should surge.