Balkinization: Further reflections on putting rights to a vote

Comments:

Judges rarely work in a vacuum and something that might be called "popular constitutionalism" shows up in a range of areas. See, e.g., "Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law" by David Cole [case studies: marriage equality, guns and war on terror cases]. Obergefell v. Hodges noted in reference to the "judicial fiat" argument:

Yet there has been far more deliberation than this argument acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts.

The term "fundamental rights" has a long history. See, e.g., the well cited case Corfield v. Coryell (1823): "The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments."

"Fundamental" here does not translate into any easily translated simplistic definition. The courts have used open-ended terms that often references the experiences of our community over time. These are not fixed and they develop over time as we develop. The Supreme Court does not simply follow the election returns as a old wit once noted. But, the courts are influences by current understandings, including as reflected in elections, in various respects. And, in our country, the people are key in truly upholding our liberties.

How the courts get involved here is a great matter of debate. For instance, a liberal professor (Eric Segall) has spoken about his desire that judicial review was much more restrained. But, it's a complicated interaction at any rate.

# posted by

Joe : 12:19 PM

Sandy: The worst legacy of the Warren Court era was the belief that political progressives should put all of their energies into manufacturing clever, even brilliant, arguments to present to sympathetic judges rather than engaging in the hard business of talking to one's fellow citizens and trying to persuade them of the merits of progressive points of view. To rely on the judiciary is indeed to engage in the politics of hollow hopes, even if one believes that the judiciary can be a valuable, even all-important, complement to aroused public opinion.

Because the progressive mandarin class holds positions generally outside of the mainstream of the electorate, only makes up about 10% of the citizenry and is concentrated in urban areas under a geographically based electoral system, they almost never campaign on their own unvarnished policies on a national level. Rather, progressives only have two means to impose their policies nationally: (1) Gain an elected majority during a crisis ("never allow a crisis to go to waste") and/or under false pretenses, then impose policies upon which they did not campaign; or (2) impose the policies by decree through the unelected bureaucracy or courts. The latter is FAR easier and is generally meant to bypass public opinion, aroused or otherwise.

Kennedy tried to obscure that reality in his Obergefell v. Hodges decree creating a "right" to SSM:

Yet there has been far more deliberation than this argument acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts.

What Kennedy leaves out is only a handful of state legislatures actually took any serious steps to recognize SSM, often under court order to do so, and his decree would reverse the democratically enacted definition of marriage in a super majority of states.

Please do not cite to the alleged approval of SSM marriage in demographically gamed polling of non-voting "adults." If a wave of "aroused public opinion" existed to have the government redefine marriage, there would be no need to go to the courts. This propaganda polling was meant to lend post facto legitimacy to the Kennedy decree.

# posted by

Bart DePalma : 1:14 PM

I have to agree that in any reasonably democratic society (which the US kinda-sorta is), long-term public opinion is a key factor. I do think the judiciary has roles to play, however:

1. As I said in a comment on the original post, to enforce the actual operation of democracy. By definition, we can't trust majority rule to do that.

2. To remind the populace what "fundamental values" they've protected, and to strengthen that reminder with reasoned argument.

# posted by

Mark Field : 1:25 PM

Anyway, it's all interconnected - federal judges are members of the public and are doing their job because the public voted for the people who appointed/confirmed them & in some fashion crafted the "Overton Window" that allowed them to be over others.

Meanwhile, other groups do the same two things, in somewhat different ways.

# posted by

Joe : 1:48 PM

To elaborate on my point, we've recognized since Madison pointed it out, first in Federalist 10 and then again in his speech introducing the BoR, that the danger to liberty in a democracy comes from the majority. We nonetheless want to rely on the majority because that's, after all, the whole point of having a republican system of government.

In order to justify that reliance, we need certain conditions to hold true:

1. The electoral system has to reflect the actual majority. Ours currently does not (and never has), sometimes due to the failure of the Constitution (Senate), sometimes due to abuses of majority rule which have gone unchecked by the courts (gerrymandering, voter ID laws, etc.).

2. When the majority does act, we can and should rely on it only when the decision is *reasoned*. As Washington said, “It is on great occasions only and after time has been given for cool and deliberate reflection that the real voice of the people can be known.”

Condition #2 raises some very significant issues about the nature of debate (a 1A issue). Falsehoods, for example, can't generate any "reasoned" conclusion. The same holds true for lots of other speech (e.g., crowding out, appeals to bigotry, etc.). Anyone who's ever tried to run a blog with comments knows that the comments need to be moderated in order to produce reasoned debate. We can see that also in legislative bodies, where numerous restrictions on the speech of members are supposed to serve that purpose. If we want to rely on democratic decision-making, we need to be confident that these conditions have been met.

3. We need a way to monitor the way the majority treats permanent minorities: those based on, among other things, race; gender; sexual identity; religion; ethnic origin; etc. We can hope that a "reasonable" majority wouldn't abuse these minorities, but that's never been true in the US and current politics suggests that won't change in the near future. This is what I was getting at in point #2 in my first comment in this thread.

# posted by

Mark Field : 2:00 PM

“It is on great occasions only and after time has been given for cool and deliberate reflection that the real voice of the people can be known.”

Good luck with that.

# posted by

Joe : 2:23 PM

Mark: The electoral system has to reflect the actual majority. Ours currently does not (and never has), sometimes due to the failure of the Constitution (Senate), sometimes due to abuses of majority rule which have gone unchecked by the courts (gerrymandering, voter ID laws, etc.).

By design, it takes a supermajority of voters to elect the House and Senate majorities and the POTUS necessary to enact law or appropriate spending.

Of course, the extent to which the congressional majorities and POTUS follow the will of the voters and that supermajority of voters holds their representatives to account is highly questionable.

However, at least, there is the possibility of accountability over the elected House, Senate and POTUS, while there is none over the bureaucracy and judiciary imposing or rewriting the law by decree.

# posted by

Bart DePalma : 2:55 PM

This comment has been removed by the author.

# posted by

Mark Field : 3:15 PM

"Good luck with that."

I think it's rare, but I think the Irish referenda we're discussing may be examples. I also think that such a popular decision can be reflected in legislative action -- representative democracy -- not just referenda. That was one of Madison's hopes in Federalist 10, anyway.

# posted by

Mark Field : 3:17 PM

The fundamental problem here is that a system that permits an enlightened judiciary to override the will of an unenlightened public, is a system that will allow an unenlightened judiciary to override the will of an enlightened public.

And people who agree with the judiciary will ALWAYS think it’s the former going on.

# posted by

Brett : 3:24 PM

That's like saying that the problem with a car is that permits me to get to work, but may permit someone else to run into a crowd of people.

There's no such thing as a tool that cannot be misused.

# posted by

Mark Field : 3:53 PM

It’s a tool that’s intended to circumvent democracy. I highly doubt positive instances of circumventing democracy are remotely more common than negative in the same ratio as legitimate driving predominates over vehicular homicide.

# posted by

Brett : 5:33 PM

No, as I've pointed out above, it's a tool that *can* be used to circumvent democracy, but also one to reinforce it. Depends on how it's used.

Your argument is nothing but a recycled version of bad anti-Federalist arguments used then against the Executive. "THERE is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. The enlightened well-wishers to this species of government must at least hope that the supposition is destitute of foundation; since they can never admit its truth, without at the same time admitting the condemnation of their own principles. Energy in the Executive is a leading character in the definition of good government. … A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government." Federalist 70.

In any case, "circumventing democracy" is too broad a term. The very existence of a Constitution "circumvents" democracy. Taken literally, as, say, the Athenians did, democracy requires no rule but one: majority rules. Every single word in a Constitution "circumvents" majority rule by establishing rules which can't be altered by a majority. Constitutions, in your phrase, take issues out of politics. A properly functioning judiciary supports constitutionalism.

# posted by

Mark Field : 6:09 PM

"Every single word in a Constitution "circumvents" majority rule by establishing rules which can't be altered by a majority."

A common misconception.

Amending the Constitution is quite within the reach of a majority of the electorate Requiring a supermajority vote of Congress, and majorities within a supermajority of states, does not require that the amendment have supermajority support among the public. It merely requires that the support be widely distributed.

If an amendment has simple majority support that is widely distributed, a supermajority of Congress will have constituents who support it, and a supermajority of states will have majorities supporting it.

Amending the Constitution is very much a democratic exercise, provided it's done via Article V, rather than by suborning the judiciary. The point of using the judiciary to 'amend' the constitution is to avoid that democratic element, so that you can make 'changes' that are unpopular. Maybe changes the democratic process has already rejected.

Rather, what the drought of constitutional amendments over the last few decades has demonstrated, is a failure of our democratic system to staff Congress with genuinely representative people. Multiple popular amendments are dead in Congress, which is why pressure is mounting for a constitutional convention.

Empowering these unrepresentative Representatives to 'change' the basic rules of government without the states having an opportunity to say "No!" hardly fixes the problem, it only makes it worse.

# posted by

Brett : 5:27 AM

But your argument seems to come back to bite you. A widely distributed majority enacted the very Constitution which calls for the judiciary to decide 'cases and controversies' involving the other provisions (also enacted by widely distributed majorities). And, if the justices have done something truly unpopular, then all that's needed is a widely distributed majority to amend the Constitution to negate their rulings.

I'd also have to say your argument about our national Representatives being unrepresentative of popular majority positions and so recourse should be made to the states to be quite an odd one since voter participation in House and Senate elections far surpasses participation in state legislative elections. I think what you're really arguing is something like this: the national legislative bodies the people elect don't do what I'd like them to do, but the state legislative bodies a smaller group of people elect do, so I'd rather see the rules made by the latter. That's of course the opposite of a leaning for democracy.

# posted by

Mista Whiskas : 7:17 AM

No, my point is that, on a number of issues, federal representatives aren't representative of public opinion. We now have a self-perpetuating political class who systematically disagree with general public opinion on a lot of issues, and who manage choke points in the system to keep out challengers who might change that.

We still get to vote, but the outcome of the votes is dictated by controlling who makes it to the ballot.

This goes on at the state level, too, but not to as great an extent. So state governments, for better or worse, are more representative of the public than the federal government.

So, allowing the federal government to 'amend' the Constitution without any chance for the states to stop them, isn't a way to embody public opinion in the Constitution. It's a way to avoid public opinion blocking changes the political elite want.

# posted by

Brett : 8:31 AM

Mr. W: And, if the justices have done something truly unpopular, then all that's needed is a widely distributed majority to amend the Constitution to negate their rulings.

Progressive misgovernence depends on the relative difficulty of reversing decrees writing or rewriting the law by the unelected bureaucracy and the courts.

# posted by

Bart DePalma : 8:33 AM

It's obvious that Brett pulled another "all-nighter" with his 5:27 AM comment in responding to Mark's 6:09 PM comment last night. Brett claims:

"Multiple popular amendments are dead in Congress, which is why pressure is mounting for a constitutional convention."

Perhaps Sandy can comment on how he thinks the pressure is mounting.

Mr. W takes Brett to task with a quick 7:17 AM response, perhaps reserving comment on the entirely of Brett's "over-nighter."

Sure enough, Brett responds at 8:31 AM with a comment that includes this:

"So state governments, for better or worse, are more representative of the public than the federal government."

Utah? Montana? North Dakota? Better? or worse?

And SPAM jumps in at 8:3 AM with a brief comment starting with these words: "Progressive misgovernance ... " with a brief screed on the courts and the administrative state.

Perhaps our dyslexic conservative duo Bert and Brat would prefer the days of the Articles of Confederation.

By the Bybee [expletives deleted, despite Gina], a constitutional convention at this time might negatively weaken America's national security even beyond the foreign policy ineptitudes of the Trump Administration. {Check out at the NYTimes "Trump’s Manchurian Trade Policy" by Paul Krugman]

# posted by

Shag from Brookline : 9:01 AM

Brett's claim about amendments consists of words next to each other, but it's utter nonsense. Democracy, and the principle of majority rule, don't require that majorities be "widely distributed". They just require majorities. Adding a requirement for "wide distribution" is just another way to be anti-democratic -- oligarchic, in fact -- because it allows "concentrated minorities" to control the majority.

Any claim that the states are somehow "more representative" is even more nonsensical. It's belied by the theory of the Constitution (Federalist 10) and by the entire history of the US. Plus, of course, it doubles down on the false logic of the "wide distribution" claim because it fails to treat the nation as, well, a nation, rather than a collection of states, so fails to recognize that there might be a national majority independent of what transpires in the states.

# posted by

Mark Field : 9:15 AM

Oh, and note that we're now on a pretty substantial diversion from the points I made originally, which have more to do with the ordinary legislative process rather than the Constitution.

# posted by

Mark Field : 9:16 AM

On an earlier post by Sandy there had been comments on the Court's decision (Story) in Prigg. The Legal History Blog has a recent post:

Jeffrey M. Schmitt, University of Dayton School of Law, has posted "Courts, Backlash, and Social Change: Learning from the History of Prigg v. Pennsylvania," which is to appear in the Penn State Law Review 123 (2018)

with an abstract that might interest some of the commenters on Prigg.

# posted by

Shag from Brookline : 9:16 AM

Shag: Perhaps our dyslexic conservative duo Bert and Brat would prefer the days of the Articles of Confederation.

Progressive propaganda is a case study in logical fallacies and. among these, the false choice is one of your favorites.

The choice is not between anarchy and progressivism, but rather a government accountable to the people instead of a people accountable to an unelected government.

# posted by

Bart DePalma : 9:56 AM

SPAM's choice is that the late 19th century The Gilded Age and its Robber Barons were America's best times, that were despoiled by progressive movements improving health care, the environment, labor laws, lessening corruption (yes, of the Robber Barons and their ilk). Now, SPAM supports the Trump Administration's Second Gilded Age. SPAM's libertarian mantra continues as "selfishness uber selflessness." Congress together with the Executive Branch created the Administrative State, subject to SCOTUS review of standards established in the laws enacted by the elected branches.

By the Bybee [expletives deleted, despite Gina], speaking of fallacies SPAM occasionally takes to heart the choice of anarchy under his insurrectionist version of the 2nd A despite his oath taken as an attorney to support the Constitution.

# posted by

Shag from Brookline : 10:23 AM

Shag:

Another progressive propaganda technique you employ frequently is to vilify your opponents.

There is no such thing as a "robber baron." In a free market. A business owner can only become economically successful by providing a superior good or service which consumers will voluntarily purchase.

During the Industrial Revolution, not the "gilded age,", American businesses provided their workers the highest compensation in the world to produce a new cornucopia of goods and services for Americans. Citizens of our economic competitors voted with their feet and immigrated into the United States by the millions for partake in our free market.

Finally, there is nothing "selfish" about keeping the fruits of your own labor and using them as you please. The only people who say this want to abuse government power to steal the fruits of your labor for themselves and their favorites.

BTW, the fact the Roman Senate voluntarily ceded its power to dictators than the Caesars hardly makes the latter less despotic. The same applies to Congress's unconstitutional ceding of legislative and judicial power to the an absolute bureaucracy.

# posted by

Bart DePalma : 10:41 AM

Rather, what the drought of constitutional amendments over the last few decades has demonstrated, is a failure of our democratic system to staff Congress with genuinely representative people.

There were no amendments from the early part of the 19th Century to the 1860s. It took the special situation of a Civil War to lead to three more. Then, there was not amendment to the early part of the the 20th Century. "Genuinely representative people" also wasn't the reason for various 20th Century amendments though some did expand on representative democracy.

The single sentenced quoted as well is confusion since Mark Field was making the obvious statement that the Constitution limits "democracy" in various ways if that word is used in a simple majoritarian sort of way. "Amending" doesn't change that, since it takes a supermajority for that to happen. Art. V is a violation of simple democracy too.

If someone wants to make some other point (which is open to refutation) perhaps leave out the quote as if it is actually responsive.

# posted by

Joe : 10:44 AM

Oh, and note that we're now on a pretty substantial diversion from the points I made originally, which have more to do with the ordinary legislative process rather than the Constitution.

Thus, my "good luck with that" comment. The Irish situation, admittedly what the post is directly about, would be the best usage of that Washington comment. Or, perhaps, major change on the legislative level (e.g., taking over a year to pass major health legislation or the extended process for the Civil Rights Act of 1964).

Again, a past thread citing the special procedures used to protect the sanctity of the Irish process would be particularly notable. Brexit might have been an example of how not to handle things.

# posted by

Joe : 10:48 AM

Just to supplement Joe's point, at no time before at least 1964 was the federal government "genuinely representative", and the state governments during that time were less so.

# posted by

Mark Field : 11:17 AM

There were "Robber Barons." Just Google for context. Is there a "free market" in some pure sense? Google that for context as well. I don't vilify SPAM by using his own words. Why, SPAM has self referenced himself in the past at this Blog as at times an "anarcho-libertarian." SPAM has also self vilified at this Blog with his insurrectionist view of the 2nd A. I wonder who's stealing SPAM's fruits in his rural Utopia. And note how SPAM segues back well beyond his favored The Gilded Age to the Roman Senate in his backwards march. Is Genesis next for SPAM (speaking of fruits)? That snake in the grass was no doubt a libertarian leaning anarcho. Congress as the Roman Senate? What a leap. Who's playing the fiddle? The Donald? But SPAM in becoming a DUI defense attorney did take an oath to support the Constitution that he decries with his continuing screed, all while shooting blanks. (Query: Does the 2nd A support shooting blanks?)

# posted by

Shag from Brookline : 11:39 AM

Shag:

The fact you can google content which uses progressive propaganda terms hardly proves the terms are accurate descriptions of fact.

There are very few policies which humanity has not employed before. Our absolute bureaucracy is a combination of the ancient Chinese bureaucracy and the western tradition of absolute dictatorship/monarchy.

BTW, I have never self identified as an “anarch-libertarian.”

# posted by

Bart DePalma : 12:39 PM

A comment on Fiskin's post: (Since he doesn't typically enable comments.)

The Census doesn't count foreign tourists, either. And yet, is that meant to deny their personhood?

Of course not: The Census counts people according to their legal residence.

Alabama's argument here is obvious: People who are not legally present in the US cannot have their legal residence in the US.

I wouldn't bet either way on Alabama's prospect of winning this case, and I severely doubt they'll get the declaratory judgment they're asking for. But their case is far from "frivolous".

# posted by

Brett : 12:45 PM

"BTW, I have never self identified as an “anarch-libertarian.”"

I've identified myself as an anarcho-capitalist libertarian, albeit one who has come to doubt the practical feasibility of anarchism.

Shag has trouble telling us apart, or perhaps just doesn't see any point in bothering.

# posted by

Brett : 12:55 PM

With luck, the AL case might force the court to come up with a rational and unconflicted definition of the “people” and “persons.”

The census not only excludes non-residents, but also legal residdnts who are not seeking to legally immigrate.

# posted by

Bart DePalma : 1:15 PM

" but also legal residents who are not seeking to legally immigrate."

Not quite:

14.FOREIGN CITIZENS IN THE U.S.

Citizens of foreign countries living in the U.S. - Counted at the U.S. residence where they live and sleep most of the time.

Citizens of foreign countries living in the U.S. who are members of the diplomatic community - Counted at the embassy, consulate, United Nations’ facility, or other residences where diplomats live.

Citizens of foreign countries visiting the U.S., such as on a vacation or business trip - Not counted in the census.

# posted by

Brett : 1:27 PM

"federal representatives aren't representative of public opinion"

In what way? Apart from some admittedly undemocratic features, which I'm sure you're not talking about, the people can vote out their representatives if they don't like what they are doing as much as you say they do. Again, this looks like you're just complaining because people don't vote in representatives that would do what you want. Also, why in the world would state representatives be any more representative of their electorates?

# posted by

Mista Whiskas : 1:55 PM

"but rather a government accountable to the people instead of a people accountable to an unelected government"

Again, apart from some undemocratic features such as the Senate, gerrymandering, and such, this is nonsense. What Bart demeans as unelected bureaucrats are just employees of the executive carrying out the laws passed by democratically elected officials. It's always possible to reverse what they do by democratic means, vote in a new executive who will change policies and Congress can directly change the law and or the regulation, it's happened several times just since Trump has been in office. Bart takes the fact that required majorities don't want to change these regulations as the premise for his claim, which he can't back up, that they can't be changed. It's worse than silly hyperbole, it's just b.s.

# posted by

Mista Whiskas : 1:59 PM

In my 11:39 AM comment I said: "Why, SPAM has self referenced himself in the past at this Blog as at times an 'anarcho-libertarian.'" SPAM challenged this in his 12:39 PM response: "BTW, I have never self identified as an 'anarch-libertarian.'” Technically SPAM is correct as I used "anarcho" not his "anarch." But I stick by my claim. Just check the Archives of this Blog.

By the Bybee [expletives deleted, despite Gina], long before there was a Google the literature made significant references to the Robber Barons of The Gilded Age of the late 19th century. But I recognize that Google and other search engines may provide content that may not be quite accurate, such as revealed by conservative propaganda - aka real right wing trash - that through intentional repetition in publication can end near the top of such searches. Proof of the pudding with search engines is to review with care and discern. Mr. W and others have exposed SPAM frequently for not being careful discerning.

As for SPAM's claim of history repeating itself:

"There are very few policies which humanity has not employed before. Our absolute bureaucracy is a combination of the ancient Chinese bureaucracy and the western tradition of absolute dictatorship/monarchy."

SPAM reverts to his Chicken Little mode of "The Sky Is Falling!" SPAM has now extended to the ancient Chinese, making his doom and gloom more universal historically.

Brett chimes in with his 12:55 PM: "I've identified myself as an anarcho-capitalist libertarian, albeit one who has come to doubt the practical feasibility of anarchism."

I do recall that Brett has self-identified at this Blog as an "anarcho-libertarian" but without the addition of "capitalist." It seems that Brett dropped the "anarcho" when ... [drum roll] ... Obama was no longer president. Maybe Brett now self-describes as an authoritarian-libertarian. [SPAM might try Googling that term.]

As for trouble telling our conservative dyslexic duo Bert and Brat apart, at times that's difficult from the content (or lack thereof) of their comments, but their photos are helpful, like distinguishing the "Unabomber" from "Elmer Fudd."

# posted by

Shag from Brookline : 2:01 PM

"The Census counts people according to their legal residence"

But that's not what the language of the Constitution directs it to do. It says to count the whole number of persons in each state. The Founders knew how to write and distinguish citizens or aliens from persons, and they said persons.

So much for textualism I guess.

# posted by

Mista Whiskas : 2:26 PM

On the other thread point, it is noted:

Alabama’s claim is that it is an actionable abuse of administrative discretion for the Census Bureau to continue to follow this plain constitutional command.

It seems "frivolous" to make this claim, including applying this text:

“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State"

Undocumented immigrants are not "tourists" and are not treated as such. But, even if the Census Bureau in some sense counted a "tourist" (perhaps one here for an extended period of time), it might not be an "actionable abuse of administrative discretion."

An undocumented person can be "in" a state for years. A tourist is generally passing thru. But, as with the usage of "invading army," words are used differently by some people. Nonetheless, on the level of "actionable abuse," even credible (if wrong) arguments are not enough. And, their novel claim is not that credible.

# posted by

Joe : 2:27 PM

"But that's not what the language of the Constitution directs it to do. It says to count the whole number of persons in each state."

That's true, literally read, were Census day to arrive, and the Mexican army were to be found in Texas and California in pitched battle with US troops, they'd have to be counted. I think this is the point at which absurd interpretations must be excluded. The Census was not meant to count people who were only temporarily in the US.

And illegal immigrants, as a matter of law, should certainly only be temporarily in the US.

"Undocumented immigrants are not "tourists" and are not treated as such."

Actually, quite frequently they are, exactly, tourists, who have overstayed their visas.

# posted by

Brett : 2:50 PM

Mr W:

1) In para materia, the concurrent use of the terms the "People" and "persons" in the Constitution suggests the latter are simply individual members of the former, not any human being who happens to reside in the United States.

2) Counting every human being residing in the United States, regardless of their legal right to reside here, makes no practical sense. Otherwise, this would require the census to count the invading British army during the War of 1812 as part of the population.

3) Over the past two-plus centuries, the census has routinely excluded legal aliens like diplomats and visitors from the count.

# posted by

Bart DePalma : 2:53 PM

Persons can not mean 'the People' in the sense of citizens because the Constitution distinguishes between the two *in the same sentence.*

As to the absurdity of counting an invading army, that could be said to answer itself, it would be an impossibility to count an invading army while fighting it (no Census would occur there), but that doesn't tell us how it's mandated to be done when it can be done.

At the very least this is one (of many I think) examples where the text itself does not give us the answer on the question at all, to the extent it does it gives us one that both of our usual 'textualists' admit must be ignored. So what is done is that something has to be *read into* and *alongside* the text, something which is literally not in it to begin with. It's this sort of thing that our textualists usually bemoan, telling us it's a simple matter to follow the law as written. Here we see they didn't really mean that. It's no surprise, because no rational person really ever did.

So, IF we're going to add something, it's just as easy and reasonable to add 'count everyone residing (not visiting or invading)' as it is to add 'count every one legally residing.'

# posted by

Mista Whiskas : 3:43 PM

Mr. W: Persons can not mean 'the People' in the sense of citizens because the Constitution distinguishes between the two *in the same sentence.*

Article and section?

As to the absurdity of counting an invading army, that could be said to answer itself, it would be an impossibility to count an invading army while fighting it...

So, you would have the Census count the invading Army so long as it cooperated?

# posted by

Bart DePalma : 3:54 PM

This from point 2) of SPAM's2:53 PM comment:

"Otherwise, this would require the census to count the invading British army during the War of 1812 as part of the population."

Was 1812 a census year? Were any of the years of the War of 1812 census years? Imagine a comedy routine featuring a census taker asking the British troops census questions while a battle is going on, assuming the troops cooperated. Would troops killed in the battle - or the census taker - be counted?

What about prisoners of war in America? What about Japanese-Americans in internment camps during WW II? What about non-War prisoners?

SPAM must be a real hoot at his rural police courts.

This may call for the New Originalism's "construction zone" to answer all these questions that are not directly answered in the Constitution. First, however, the New Originalist must determine the favored conservative result.

# posted by

Shag from Brookline : 4:42 PM

Shag: Was 1812 a census year?

So, you would have the Census count the invading Army so long as it was a census year?

# posted by

Bart DePalma : 4:54 PM

I don't answer hypocritical [sic] questions. SPAM is a textualist when it serves his purpose. The text of the Constitution does not provide a clear answer. I rather doubt the Framers of the 1787 Constitution gave thought to an invading foreign Army as there was no interest expressed in a standing army, rather reliance upon the Militia Clauses to put down domestic insurrections. The closing paragraph of my 4:42 PM comment was suggesting the New Originalism's "construction zone" as a means of providing an answer. But SPAM is not a New Originalist, just a tired textualist who gets no help from the text.

Of course 1812 was not a census year. But what if some of the invading Redcoats deserted and remained in the good old U S of A, got jobs, went to school, got married, had children, and were still here in 1820, a census year, should they have been counted even though they did not become naturalized citizens? Probably.

Maybe SPAM could try this out when he holds "court" at his rural police court on pleas day.

# posted by

Shag from Brookline : 7:57 PM

To repeat:

Alabama’s claim is that it is an actionable abuse of administrative discretion for the Census Bureau to continue to follow this plain constitutional command.

Even if their interpretation of the text is reasonable, at the very least, so is the agency in question. In fact, it matches long-held understanding.

"Undocumented immigrants are not "tourists" and are not treated as such."

Actually, quite frequently they are, exactly, tourists, who have overstayed their visas.

So, they would not be tourists any more. So, what does "actually" tell me, especially when I noted that it was possible that some "tourists" who staid a long time might be here so long that they were "persons" under the clause? At some point, tourists are no longer transitional in this respect. Again, the agency is not abusing discretion, even if it might somehow be wrong. And, undocumented immigrants are of various kinds.

Actual invading armies (not metaphorical ones) and foreign dignitaries have not been counted for the purposes of that clause. The traditional and current understanding is that they still are foreigners. On the other hand, merely because some sort of proper documentation wasn't handled properly, people who might be here for decades are. They "in" the states in question. They are not akin to short time tourists, foreign armies etc.

# posted by

Joe : 8:03 PM

Back pm topic, I'm a tad troubled with this from the closing paragraph of Sandy's post:

" The worst legacy of the Warren Court era was the belief that political progressives should put all of their energies into manufacturing clever, even brilliant, arguments to present to sympathetic judges rather than engaging in the hard business of talking to one's fellow citizens and trying to persuade them of the merits of progressive points of view."

I don't read this as critical of the Warren Court that both Sandy and I have lived through. But during the era of the Warren Court, what could progressives have realistically accomplished with the reactions of the former slave states to Brown v. Bd. of Educ. (Unanimous, 1954) that fought the civil rights movement tooth and nail through the 1960s? Maybe Sandy has some thoughts on this or has written about what he may perceive as a failing by progressives? Public opinion was aroused in the former slave states. Progressives had to use the courts to counter this.

# posted by

Shag from Brookline : 8:23 PM

"So, they would not be tourists any more."

And if they were tourists, they wouldn't be counted.

# posted by

Mark Field : 9:20 PM

Sure, they're tourists. They're just overstaying tourists.

It would be really strange if breaking the law gained you a higher status under American law.

# posted by

Brett : 7:21 AM

"I don't read this as critical of the Warren Court "

It's not. It's critical of the reaction of political "progressives" to the Warren court. "Ah, thank goodness we can finally stop trying to win over the rubes, and just crush them through the judiciary."

Winning in court, in a democracy, is no substitute for actually changing public opinion. What you win in court, you can later lose in court, if public opinion remains opposed to you. Victories you don't win in the court of public opinion are built on sand.

# posted by

Brett : 7:28 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 8:09 AM

Joe: Actual invading armies (not metaphorical ones) and foreign dignitaries have not been counted for the purposes of that clause. The traditional and current understanding is that they still are foreigners. On the other hand, merely because some sort of proper documentation wasn't handled properly, people who might be here for decades are. They "in" the states in question. They are not akin to short time tourists, foreign armies etc.

If the term persons is understood to exclude foreigners, then no amount of time will transform an illegal alien into an American and a constitutional person. This would take an act of Congress.

# posted by

Bart DePalma : 8:20 AM

Brett's 7:28 AM comment perhaps speaks for himself as a "rube" in his apparent self-quote, rather than for what Sandy meant. But one doesn't have to read between Brett's lines to get the idea that Brett thinks Brown v. Bd. of Educ. (Unanimous, 1954) and the civil rights movement that followed can be undone by the court public opinion via Trump and his base of the Forgotten washing away the "sand" upon which actual court decisions were built to Make America Great Again like pre-Brown. Color Brett as a Plessy v. Ferguson fan.

# posted by

Shag from Brookline : 9:00 AM

"On the other hand, merely because some sort of proper documentation wasn't handled properly"

Got to comment on that.

This is not a matter of some documentation not being handled properly, like the INS screwed up the paperwork.

This is a matter of somebody lacking the documentation because they're present in the country illegally.

You might as well pretend a bank robber is just somebody who had a paperwork error while filling out their withdrawal slip. Being an illegal alien is not, typically, and inadvertence or screw up. It's a deliberate violation of the law.

# posted by

Brett : 9:04 AM

SPAM's 8:20 AM comment states: "This would take an act of Congress." Query: Does Congress have the power to define terms used in the Constitution? What is the textualist view? Originalism's view?

# posted by

Shag from Brookline : 9:07 AM

BD: "This would take an act of Congress."

Shag: Query: Does Congress have the power to define terms used in the Constitution?

No.

However, if the term persons is understood to exclude foreigners as Joe suggests, the Constitution grants Congress the power to naturalize foreign citizens.

My position is constitutional persons are individual members of the People and, thus, the real issue is how to define the People.

Citizens? Certainly.

Some or all legal aliens? Maybe.

Illegal aliens? Under what possible reasoning?

# posted by

Bart DePalma : 9:34 AM

"You might as well pretend a bank robber is just somebody who had a paperwork error while filling out their withdrawal slip. Being an illegal alien is not, typically, and inadvertence or screw up. It's a deliberate violation of the law."

Overstaying a visa is not a criminal offense.

# posted by

Mark Field : 9:43 AM

Mark:

Violation of civil law is also a violation of law.

# posted by

Bart DePalma : 9:50 AM

"Criminal offenses" do not exhaust the domain of illegal conduct, Mark. Over staying a visa is not legal, thus is illegal. Even though the penalties do not include jail time, there ARE penalties, such as being barred from legal entry in the future.

This is a common quibble used to pretend that illegal conduct is legal.

# posted by

Brett : 9:54 AM

Sure, they're tourists. They're just overstaying tourists.

It would be really strange if breaking the law gained you a higher status under American law.

First, to repeat, not "frivolous" for reasons stated. To address a basic argument.

Second, the issue here is being counted in the census. Slaves were counted as "persons" though basically not for their benefit, but for that of the states, who argued that counting them was necessary to fully reflect their overall economic and so forth place in the country. It makes sense to have residents who are long term (not tourists) counted in this respect. People who reside on U.S. soil especially if they have developed ties -- even "bank robbers" (a favorite Brett metaphor) -- do have more rights than those who don't.

To repeat again, if you want to call these people a form of "tourist," that is possible, though the general understanding of that term is not someone who came as tourists but stuck around to live here. At some point, they aren't a "tourist" any more.

Being an illegal alien is not, typically, and inadvertence or screw up.

Not having documentation need not be a matter of "inadvertence" and if "criminal conduct" is our concern, why isn't "illegal" used as a label much more often? When people use any number of people who are not legally following the rules, like a plumber or beautician, why aren't they labeled "illegal plumbers" or the like? Maybe, because CRIMINAL laws matter generally here but only selectively is "illegal" tossed around. Finally, the reason why a person is undocumented is varied. But, it does turn on have proper documents.

The net result here is selectively, for a group that largely is a specific ethnic or racial type, the term "illegal" is tossed around. Back in the day, that would have been Italian or Irish laden dog whistling. Now, it is of a different type.

# posted by

Joe : 10:33 AM

"Article and section?"

14th Amendment, Sec. 1

"So, you would have the Census count the invading Army so long as it cooperated?"

They wouldn't, and there'd be no Census anyway under such conditions, so it's a moot point (that's my point, partly).

# posted by

Mista Whiskas : 10:40 AM

"The net result here is selectively, for a group that largely is a specific ethnic or racial type, the term "illegal" is tossed around."

How many corporations, developers, etc., are in technical violation of administrative or civil provisions? We don't generally refer to them as 'illegal' whatevers.

# posted by

Mista Whiskas : 10:57 AM

Yes, Brett is playing word games, not making a serious argument, as Joe and MW note. The word "illegal" generally refers to crimes, and Brett's trying to (mis)use that term to mislead.

# posted by

Mark Field : 11:22 AM

"The net result here is selectively, for a group that largely is a specific ethnic or racial type, the term "illegal" is tossed around. Back in the day, that would have been Italian or Irish laden dog whistling. Now, it is of a different type."

I am utterly unmoved by this attempt to imply racism is involved. If we shared a common border with China, most illegal immigrants would likely be Chinese, but calling them "illegal" would still not be a slur against the Chinese, but simply accurately identifying the status of those here illegally.

Contingently, we share a common border with Mexico, and most so most illegal immigrants are 'Latinos'. It is still not a slur upon Latinos to call those here illegally "illegals".

I'd say that implying racism is the last refuge of a scoundrel, but at this point it's more of a first refuge.

# posted by

Brett : 11:25 AM

Mr. W: Persons can not mean 'the People' in the sense of citizens because the Constitution distinguishes between the two *in the same sentence.*

14A, sec. 1 does not use the term "the People," nor does it expressly distinguish between "persons" and "citizens." Rather, the latter distinction has been inferred from the use of "citizens" in one clause and the "any person" in another.

This inferred distinction was not made in the original Constitution and would appear to be limited to the due process and equal protection guarantees made in 14A, sec. 1.

# posted by

Bart DePalma : 11:30 AM

Laughable. Amendments ARE parts of the Constitution.

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

This makes it clear that not all 'persons' are 'citizens,' only those 'born or naturalized' are.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Here, they carefully make distinct rights that apply to citizens and rights that apply to persons, absurd if your distinction is to stand. But your distinction is, of course, absurd.

# posted by

Mista Whiskas : 11:37 AM

" but calling them "illegal" would still not be a slur against the Chinese, but simply accurately identifying the status of those here illegally."

And yet, as I've said, most corporations and such are technically 'illegal' in terms of strict application of civil law, and you don't refer to them as 'illegal' ___.

# posted by

Mista Whiskas : 11:41 AM

Go back into the Archives of this Blog to learn of Brett relating when he was a mere laddie in racist North Michigan competing ineffectively with Mexican farm laborers pulling radishes because of Brett's congenital small hands (a condition Brett claimed to share with his chosen candidate Donald Trump during the 2016 campaign). Was Brett a "scoundrel" in relating this as an adult who migrated to a former slave state to take refuge with his true ilk?

Note that Brett refers to Latinos in discussing Mexico. Here's a link on terminology for "scoundrels":

https://www.spanishdict.com/guide/what-is-the-difference-between-hispanic-mexican-latino-and-chicano

# posted by

Shag from Brookline : 11:46 AM