In this age of polarization (exemplified by Judge Kavanaugh's confirmation hearings) is there any constitutional issue that could unite the NAACP Legal Defense Fund, the ACLU, the Chamber of Commerce, the Pacific Legal Foundation, Judicial Watch, the Brennan Center, and the Constitutional Accountability Center (among others)?
The answer is yes. These groups have all filed amicus briefs asking the Supreme Court to incorporate the Excessive Fines Clause of the Eighth Amendment. Timbs v. Indiana presents that issue in the next Term in the context of aggressive state and local civil forfeitures of property involved in crimes. This forfeiture power is subject to (and regularly produces) rampant abuse but is largely insulated from the scrutiny of the federal courts. I certainly think that the Excessive Fines Clause should be incorporated and I think there is a good chance that a broad coalition on the Court will agree.
There is another point lurking being the widespread support for incorporation in Timbs. The Bill of Rights remains a powerful unifying force in America. Despite our disagreements about what those provisions mean, almost everyone attempts to ground their constitutional arguments in what the Bill of Rights contains or omits.
Hard to see how this doesn't happen especially since in dicta the Supreme Court actually said it already happened though a later opinion did not.
ReplyDeleteThere is common ground out there. People also attempt to ground their constitutional arguments in what the Fourteenth Amendment means. And, other provisions. But, the BOR does have a special cachet. Madison's speech introducing what became the BOR figured as much. As did the preamble submitting it to the states for ratification.
Partial incorporation never made a lick of sense, and everybody knows it. But the Supreme Court still drags its heels in undoing the bad faith decisions that had rendered the 14th amendment moot shortly after its passage.
ReplyDeleteEven to the extent they have reversed them, they invented that nonsensical "substantive due process" instead of just holding they were wrong, and incorporating via privileges and immunities, as was intended by the amendment's drafters.
In the end, some of the Supreme court's mistakes are so obvious you have to be a Supreme court Justice to not see them.
But the Privileges or Immunities clause doesn't necessarily lead to full incorporation of the Bill of Rights either, only those sections of it which are privileges or immunities of citizens. If something is a collective right (as Justice Stevens believed of the Second Amendment), a structural restriction on the federal government (as Justice Thomas believes of the Establishment Clause) or simply a regulation of the courts (as some believe of the Seventh Amendment) then they too would not be incorporated. Si too for the sections of the Bill of Rights which protect state as opposed to individual rights - it makes no sense for them to be incorporated.
ReplyDeleteBrett I would also be interested in your view on whether the Ninth Amendment is incorporated, as a straightforward interpretation of the Privileges or Immunities clause would imply, and if so, what that means in practice.
ReplyDeleteStevens' conception of the 2nd amendment as a "collective" right isn't, I think, a good faith reading. It's a motivated reading designed to render the amendment toothless. Nobody ever suggested the 2nd was a collective right until enforcing that right got in their way. "Collective" rights are a nonsensical concept. Nobody advocates them except to render a right impossible for any particular person to claim. And thus effectively void.
ReplyDeleteYes, I would say that the 9th amendment is supposed to be incorporated. Obviously the 10th isn't, because that would be somewhat self-referential, but if a right is retained by the people, no level of government can properly violate it. However, it was not incorporated in the sense of being specifically named, but rather in that it was a restatement that the traditional rights Americans could normally expect to enjoy were not sacrificed by failure to enumerate them. It was, much like the 10th, an amendment directing how the rest of the Constitution was to be understood, not thought to actually alter it in any way.
And if you look at the Congressional debates concerning the 14th amendment, incorporation of 1-8 at least was explicitly intended:
"Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution.[See what I said about the 9th above, the preceding passage was relevant.] To these privileges and immunities, whatever they may be — for they are not and cannot befully defined in their entire extent and precise nature — to these should be added the personal rights guarantiedand secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; theright of the people peaceably to assemble and petition the Government for a redress of grievances, a rightappertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from thequartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonablesearches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against crueland unusual punishments"
"incorporating via privileges and immunities, as was intended by the amendment's drafters."
ReplyDeleteI'd like to see an analysis of when (and why) ostensible conservatives like Brett suddenly 'found religion' on incorporation. I find most movement conservatives to be woefully, and ironically, ignorant of the intellectual heritage of their own ideological movement. I'm old enough to remember when the conservative position on incorporation was that it was a nonsense abomination involving the greatest usurpation of state and local rights by the federal government.
Edwin Meese in 1985: "nowhere else has the principle of Federalism been dealt so politically violent and constitutionally suspect a blow as by the theory of incorporation."
https://www.nytimes.com/1985/08/03/us/meese-and-his-candor.html
Raoul Berger in 1981: "Curtis considers that 'privileges and immunities' is 'a natural way to describe the rights in the Bill of Rights.' By whomsoever uttered, this is arrant nonsense...if the terms 'privileges or immunities' are 'vague'- 'quite inscrutable, Professor John Hart Ely has it-how can they justify an
invasion of the rights reserved to the states by the tenth amendment...A generation grown accustomed to judicial rape of federalism needs to be reminded that inscrutable words [the P&I Clause] cannot constitute a waiver of power reserved to the states by the tenth amendment. "
https://kb.osu.edu/bitstream/handle/1811/65145/OSLJ_V42N2_0435.pdf
These conservatives were at least intellectually coherent and honest. Today's conservative, having weaponized the parts of the BoR they like, now seem to want to have their cake (rhetoric about state's rights) and eat it too (yay incorporation!).
""Collective" rights are a nonsensical concept."
ReplyDeleteI think Citizen's United was a silly decision but I wouldn't go so far as to say collective rights are nonsensical.
"It's a motivated reading designed to render the amendment toothless."
ReplyDeleteThat's silly. Stevens (and the generally accepted view for most of our federal court history) was similar in its workings to how Thomas sees the Establishment Clause, just as the federal government could not establish Churches or interfere with state churches, the federal government could not interfere or disband the state militias. One hardly has to be engaged in bad faith to endorse either view considering that at the time the BoR was being introduced and talked about the proper role of the federal government and fear of it usurping state powers was as big, if not a bigger focus, than the idea of protecting 'individual liberties' from the federal government (the first act of Congress struck down based on an individual liberty part of the BoR was, what? Iirc it was way late in our history. Most early cases of note sussed out the powers of the feds in relation to the states).
I can't really speak to your complaints, as my intellectual origins are in the libertarian movement, not conservatism, and I never really paid any attention to people like Meese. I'm better acquainted with David Friedman, (Milton's son.) or Tuccile. Though I've grown more conservative as I've aged. (Shocking, I know...)
ReplyDeleteMy only complaint about incorporation is that there isn't any good excuse for it being done piecemeal. As I cited above, the 14th amendment was explicitly intended by its drafters to accomplish incorporation of 1-8, and only failed due to bad faith rulings by the Court.
Partial incorporation via "substantive due process" is a consequence of the Supreme court's pathological reluctance to admit that the Slaughterhouse decisions were entirely wrong, and overturn them entirely. But it distorts the meaning of the 14th amendment, because everybody is entitled to due process, while privileges and immunities are an entitlement only of citizens.
This is a rule of law issue for me: The 14th demands incorporation be complete. It's being violated so long as the project remains unfinished.
"I think Citizen's United was a silly decision but I wouldn't go so far as to say collective rights are nonsensical."
ReplyDeleteThe Citizens United case was not about "collective rights" in the sense Stephens used it. It was about individual rights which are not lost when people band together. You have a right to opine about politics, so do I. If we get together to join our voices, the right is not lost.
Stevens style "collective" rights can only be exercised through governmental action: You exercise your 'right' to keep and bear arms by doing so when and how you are ordered to by the government, and not otherwise. It's a complete inversion of the 2nd amendment, which was meant to safeguard the militia system by prohibiting disarming the people from which a militia could be assembled.
Expressly, in discussions of the matter, the concern was raised that the militia might be deliberately discontinued, or reduced to just a select band of 'reliable' citizens, and so rendered incapable of securing liberty. By guaranteeing the people, NOT the militia, the right, the ability to raise a militia in an emergency was secured against the government itself.
All rights are expressions of concern about government misbehavior: They assume bad motives of government, and seek to thwart them. They are not efforts to empower the government, as Stevens would have made the 2nd amendment.
He sought to achieve the very evil the 2nd amendment was written to fend off.
"The Bill of Rights remains a powerful unifying force in America. Despite our disagreements about what those provisions mean, almost everyone attempts to ground their constitutional arguments in what the Bill of Rights contains or omits."
ReplyDeleteOnly textualists perform this function, or at least do it honestly.
Attempts to rewrite or erase the Bill of Rights as written are quite common. Here are a few of the more egregious:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof actually prohibits religious expression on the public square if it makes others feel uncomfortable.
or abridging the freedom of speech, or of the press unless you are a business engaged in speech with your customers or political speech near an election.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. actually means the right of a state to form a militia shall not be infringed.
nor shall private property be taken for public use, without just compensation, unless the government wants to take your house and give it to a politically connected developer like Donald Trump who promises to pay more property taxes.
Originalism theory currently focuses primarily on original public meaning. Brett refers to the original intent of the Framers of the 14th A. That's been passe since Paul Brest's law review article on the fallacies of determining collective intent of legislative bodies. Brett may be a "Cafeteria Originalist," as he advocates in a non-lawyerly manner in his trolling at this Blog. It would have been a relatively simple matter for the Framers of the 14th to have included a specific incorporation of the BOR, or some of them. But the Framers of the 14th A did not do so. It's been 150 years since the ratification of the 14th A. Do we know better today the original public meaning of the 14th A with respect to incorporation than did the public, however defined, back in 1868 from the actual words contained in the 14th A? Consider the timelines of SCOTUS determination over those 150 years on 14th A incorporation as the search continues for the Holy Grail of constitutional interpretation/construction.
ReplyDeleteBy the Bybee [expletives deleted, despite Gina], keep in mind the limited attention SCOTUS gave to the BOR pre-14th A.
Perhaps Brett could point to the words in the 14th A to support his 9:04 AM:
"The 14th demands incorporation be complete."
What was the original public meaning in 1868? SCOTUS and the legal profession AND THE AMERICAN PUBLIC over 150 years have have had problems with incorporation under the 14th A. Frankly, the New Originalism's original public meaning theory places this in the Construction Zone with hard-hatted constitutional scolars still searching for that Holy Grail.
As to collective rights, what about the collective right of Americans to be protected from foreign adversaries, not just when Congress has declared war?
Collective rights are inherent to the conception of rights in the US. Take the DoI for example: "it is the right of the People to alter or abolish it". No individual has the right to alter or abolish anything; only collectively does such a right exist.
ReplyDeleteThe 1A operates the same way. The right to assemble makes no sense for an individual; a single individual isn't and can't be an "assembly". Freedom of religion, whether as free exercise or as anti-Establishmentarian, protects the collective rights of churches as well as of individuals.
Even the 9A and 10A which Brett pretends to be so fond of protect the rights and powers of "the people".
Brett -
ReplyDeleteIf I understand you correctly, you are saying that, through the Ninth Amendment, all "the traditional rights Americans could normally expect to enjoy" are protected against state, as well as federal action. Is that right? Because in practice, that worries me. Are judges really able to determine the scope and nature of and give them judicial protection? Doesn't that lead somewhere like Justice Goldberg's infamous concurrence in Griswold? Lochner v New York? Roe v Wade? Doesn't it inevitably politicise the judiciary to give them such a task?
I am also surprised to see you citing the legislative history of the 14th Amendment in this manner. John Bingham undoubtedly intended the amendment to incorporate the 1st through 8th Amendments, but his personal intention has no relevance in law. Even if that had been Congress's collective intention, it would be wrong to impute that intention to the states that ratified it. He may be trolling you, but surely Shag's right that the original public meaning of the amendment is what controls.
And even if we wanted to fully incorporate the first eight amendments, they have sections that cannot be incorporated against the states without doing violence to the text. Consider the Re-Examination clause of the Seventh Amendment, for example. That sure doesn't look like an individual right or privilege, and even if it was, the states several do not control the Courts of the United States, so it isn't applicable to them. I happen to agree with you on the Second Amendment, but my point was that across the jurisprudential spectrum, people find some sections of the Bill of Rights as unsuitable. Surely some measure of selective incorporation is necessary?
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As Mark Field notes, collective rights were traditionally understood to be a thing, back to the days of the Magna Charta at least (to provide an English precedent).
ReplyDeleteI personally think there is a constitutional personal right to self-defense (including using firearms) but also that there are various collective rights protected by the Constitution, rights that also have a personal component. Thus, e.g., the right to a jury trial is personal, including the right to be a juror, but it also is collective. A group of people, in an institution set up by the state, come together in a jury. Ditto a militia. And, voting as a whole.
I readily admit my position on the 2A is open to debate (it is sort of mixed), so won't say "no one" disagrees with me. The meaning of the 2A has been subject to dispute for over a century at the very least. But, reasonable debate of constitutional terms is not enough for some. It has to be some conspiracy. This has originalist roots, I guess, since people in the 1790s railed against opponents as corrupt monarchists who didn't really believe in republican government.
As to incorporation, that was something that was a mixed understanding from the beginning too. Some at the time of ratification believed that the BOR (and usually some other rights of unclear reach*) were incorporated but probably (fwiw) the general "original understanding" was more limited. State legislators who ratified the 14A were particularly concerned about broad things, not if the grand jury provision was now applicable to the states.
---
* Rights like habeas corpus might apply. It was also understood various unenumerated rights, such as marriage, were covered too probably, so the 9A would have some force here. It is somewhat unclear about applying the 10A against the states though perhaps "the people" had some sort of power that was covered.
As to the 2A, by that time, there was some understanding that there was an individual rights component (see Alito's opinion in McDonald v. Chicago). Also, if it only applied to state militia, it could STILL be applied. For instance, the 2A speaks of "the people," and the 14A would protect blacks and perhaps other groups to equally take part. Not exactly a trivial thing.
"John Bingham undoubtedly intended the amendment to incorporate the 1st through 8th Amendments, but his personal intention has no relevance in law."
ReplyDeleteIf I want to know what a document meant, looking at what the authors said while debating what the words should be is generally helpful. It can't overcome actual textualism, as the text is what is actually enacted, but it can clarify points.
These debates were not held in secret, they were published. (And it wasn't just Bingham who expressed this understanding.) We're not talking about some secret meaning the public was unaware of when the amendment was ratified, or some post hoc interpretation Bingham cooked up after the fact. This is our best evidence of what the amendment was supposed to accomplish, and in no way contradicts the text of the amendment.
I do not think it guaranteed that judges will exercise good faith in determining what the traditional rights referenced by the 9th amendment are, (Roe v. Wade and Obergefel argue the contrary strongly.) but the point that normal rights are not lost due to failure to list them is still important, and if taken seriously would have left us freer than we presently find ourselves with the 9th amendment ignored.
Finally, I don't see the problem with incorporation of the 7th amendment, could you clarify your concern?
"the 14th amendment was explicitly intended by its drafters to accomplish incorporation of 1-8"
ReplyDeleteThis is, at the very least, hotly debated. In fact, it's almost certainly not true. For one thing, it's doubtful that the 14th Amendment's P&I Clause was meant to incorporate the 5th Amendment's Due Process clause when the 14th Amendment *also has a DP clause of its own!* As to the history, look at the Berger article I linked to. Berger used to be the pre-eminent conservative legal historian and he thought the historical record showed that the idea that the 14th was meant to incorporate the BoR was utter nonsense. When Black first suggested it and produced his famous appendix of historical research almost nobody took it seriously.
More importantly, my beef isn't with the sudden about face by conservatives on this and their collective amnesia about where they used to stand on the issue, it's that they continue to invoke 'state's rights' and 'subsidiarity' while doing so. At least the earlier critics of incorporation recognized that it was probably the biggest federal grab of state authority other than (maybe) the New Deal.
"Stevens style "collective" rights can only be exercised through governmental action"
ReplyDeleteThere's confusion here. The Constitution is full of provisions that limit the federal government relative to the state governments (and vis-a-versa). This doesn't make them somehow illegitimate.
The mlitias were under control of the state and local governments. The Founders were trying to stop something like Lexington and Concord, which didn't involve the national government going door to door and taking people's guns, but stores of weapons the local colonial militias had.
One thing the Founders almost certainly were not thinking of was something like the right to own a gun for hunting or self defense from bandits and highwaymen. They weren't thinking about that because I think they assumed that no government was going to limit that in any meaningful way, and if one did something so odd and incomprehensible to them it would be a state and/or local matter obviously (to them). Instead they were setting up a *federal* system and were very concerned with things like: how can state institutions like militias and, in some colonies, churches, be protected from the federal government? And, I think with Lexington and Concord fresh in their mind, they said 'well, the feds can't disband/disarm our militias, that will keep them honest.'
"Attempts to rewrite or erase the Bill of Rights as written are quite common"
ReplyDeleteOh, balderdash. Conservative 'textualists' are more than happy to make up non-textual doctrines when it suits them. There's no 'anti-commandeering' language in the 10th Amendment, there's no language that says a citizen can't bring federal suit against their own state in state court in the 11th, there's no 'equal dignity' language in the 14th Amendment, no 'plenary power' language re: immigration, etc.
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ReplyDeleteMark Field said...Collective rights are inherent to the conception of rights in the US. Take the DoI for example: "it is the right of the People to alter or abolish it". No individual has the right to alter or abolish anything; only collectively does such a right exist. The 1A operates the same way. The right to assemble makes no sense for an individual; a single individual isn't and can't be an "assembly". Freedom of religion, whether as free exercise or as anti-Establishmentarian, protects the collective rights of churches as well as of individuals. Even the 9A and 10A which Brett pretends to be so fond of protect the rights and powers of "the people"."
ReplyDeleteYou are conflating collective powers belonging to the people as a whole, with individual rights.
Rights generally refer to limits on the government to take or abridge our lives, liberty or property - in other words, the freedom to live our individual lives as we please.
"Finally, I don't see the problem with incorporation of the 7th amendment, could you clarify your concern?"
ReplyDeleteThe re-examination clause of the 7th Amendment states that "[In suits at common law...], no fact tried by jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law."
First, note that this is not an individual right at all - who does it belong to? The plaintiff and defendant can't agree to dispense with it in a particular case. Instead, it's a limitation on what federal courts are allowed to do. In particular, this does not appear to be any kind of "privilege or immunity" as referred to by the 14th Amendment. As a result, it doesn't appear that the 14th Amendment, by its text, has incorporated this clause against the states.
Note too that even if this clause were somehow deemed incorporated against the states, the limitation is on a "Court of the United States." Individual state courts are not courts of the United States, so it still wouldn't be applicable to them.
When you put it all together, it's quite right that this clause has not been incorporated against the states, even if the Court asked the wrong question in determining the answer. Hopefully using this example of a minor, uncontroversial clause helps illuminate the more general principle. Note that Justice Thomas - who agrees with you on the Privileges or Immunities Clause - doesn't think the Establishment Clause has been incorporated.
"This is, at the very least, hotly debated. In fact, it's almost certainly not true."
ReplyDeleteWell, you've got me there: You're denying it, and all I've got is the amendment's AUTHOR, (Among others) coming right out and saying that's what it was doing. What's that next to your disputing it?
Seriously, if you want to say, "Who cares what Senators Bingham and Howard said it meant, and what contemporaneous sources agree to? We can today say it means whatever we want!", I'd resist, but you'd at least have a coherent position.
But how can it almost certainly not mean what its freaking author said it meant?
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ReplyDeleteBD: "Attempts to rewrite or erase the Bill of Rights as written are quite common"
ReplyDeleteMr. W: Oh, balderdash. Conservative 'textualists' are more than happy to make up non-textual doctrines when it suits them.
In such cases, by definition, such attorneys or jurists are not acting as textualists.
How people self-identify is irrelevant, how they act tells the tale.
For example, the self-identified umpire, John Roberts, rewrote the rule book in his opinions saving Obamacare.
As an aside, it will be fascinating to see whether Roberts sticks to his original rewrite preserving the Obamacare individual mandate as a "tax" now that Congress has removed that tax and left the mandate or will rewrite his rewrite to arrive at his preferred outcome. Kennedy did this in the SSM cases by first holding states have a plenary power to define civil marriage in his decision to overturn the federal DOMA law, then claimed states had no such power in his decision to impose SSM on the states.
Come on Brett, be fair. I agree with you on the meaning of the clause, but you're not putting forward your best arguments here. It's utterly commonplace for politicians to make self-serving arguments on the meaning of a text, particularly when, as here, it's the result of multiple amendments and heavy compromise. It's why good judges are so sceptical of legislative history ("looking over a crowd and picking out your friends").
ReplyDeleteMany of your interlocutors are making multiple silly and unfair arguments, but you're better than that.
If I want to know what a document meant, looking at what the authors said while debating what the words should be is generally helpful. It can't overcome actual textualism, as the text is what is actually enacted, but it can clarify points.
ReplyDeleteThese debates were not held in secret, they were published. (And it wasn't just Bingham who expressed this understanding.) We're not talking about some secret meaning the public was unaware of when the amendment was ratified, or some post hoc interpretation Bingham cooked up after the fact. This is our best evidence of what the amendment was supposed to accomplish, and in no way contradicts the text of the amendment.
Looking at this evidence, people have spelled out that incorporation of the BOR was not something broadly understood to have occurred though it was something that was "in the air" to some extent. The "our best evidence" is that the amendment was supposed to accomplish a range of things and full incorporation of the BOR was not clearly that. The text is not fully clear on the point. The matter was worked out over time, using the usual procedures the document sets up for that.
(As to Mr. W.'s reference to "due process," the general understanding was the term would at the very least cover SOMETHING among the enumerated rights, but there was a debate on what specific procedural rights would be necessary there. It is a catch-all term with long cachet that protected some floor. The fact there is some redundancy is not a problem really.)
I do not think it guaranteed that judges will exercise good faith in determining what the traditional rights referenced by the 9th amendment are, (Roe v. Wade and Obergefel argue the contrary strongly.)
Using text and history would be two tools for judges but merely using text and what the original understanding of the text was understood to mean only takes one so far. Thus, e.g., Madison noted that the meaning of the document would only become clear over time, as it was applied to experience.
There was a traditional right to have control of your body, particularly power over family and childbearing. Forcing women to have babies was something slaveholders did. Abortion was generally legal in 1791 and then it was regulated largely for medical reasons; when abortion became safer, such reasons lost much force. Abortion rights also reflect equal protection and religious liberty concerns. Changing understandings of marriage (e.g., coverture would no longer be legitimate) also factored into the Obergefell decision. Text and history very well helped in those cases and Roe v. Wade particularly had a long portion discussing history.
but the point that normal rights are not lost due to failure to list them is still important, and if taken seriously would have left us freer than we presently find ourselves with the 9th amendment ignored.
Listing rights that are particularly important is a good thing and it is appreciated (as the original post shows) that the BOR is agreed upon to have a lot of bite. Any list, particularly a short one, is only so good, so open-ended catchall provisions are important too. Applying all is a matter of using all the tools available including text, history, doctrine and sometimes some common sense (aka prudence).
"all I've got is the amendment's AUTHOR, (Among others) coming right out and saying that's what it was doing."
ReplyDeleteI take it you didn't read the Berger article I linked to. He addresses Bingham's, and other key player's statements on the matter.
Again, Berger was the leading conservative legal scholar at the time, not some progressive.
And, you didn't answer, how could the 14th have meant to incorporate the 5th Amendment's DP clause when it had it's own DP clause?
The 5th amendment had its own due process clause, but it had much else besides.
ReplyDelete"Rights generally refer to limits on the government to take or abridge our lives, liberty or property"
ReplyDeleteOf course that's true, but as noted in many contexts the limits are on actions that only make sense collectively (such as the right to assemble). Also, other limits on the federal government are to protect state institutions and powers (individual rights can be thought to be protected by this too, as was pointed out in the recent SCOTUS case involving federal prosecution of someone who put acid on someone's door, or something like that).
"The 5th amendment had its own due process clause, but it had much else besides."
ReplyDeleteThat's beside the point. Why would the 14th have a due process clause of its own if the 14th was incorporating the BoR which already had a due process clause? It makes no sense.
Joe, the redundancy is a big problem really. First, there is (and was at the time) a legal canon to interpret the law to avoid the appearance of redundancy. Second, it's nonsensical. If the 14th had said 'and no state shall inflict cruel and unusual punishment on any person' it would be goofy to think that some other part of the document incorporated the 8th Amendment to the states. If the latter were the case there'd be no reason to put the former in.
ReplyDeleteNow, don't get me wrong. I support incorporation. But to me the reason is this: those vague terms have to mean *something.* Now, we can either leave it up to nine justices to figure out what the 'privileges and immunities' or 'due process' is, or we can just create the legal fiction that they mean the BoR (or the first eight amendments). That has the benefit of giving the terms a relative definite meaning with limited malleability, and we can go live our lives and make policy with some greater certainty of what that Amendment is going to do. Black actually made this argument, in addition to his historical one which was simply not persuasive to most who read it.
"In such cases, by definition, such attorneys or jurists are not acting as textualists."
ReplyDeleteBart is like Pony Express employee waiting at this station as fresh horses are brought in to continue the journey. They come and go but Bart stays, looking into the horizon. Finally, after days, he's asked 'what are you waiting for?'
His answer: 'A unicorn, of course.'
When nobody or thing measures up to your criteria, the problem be with your criteria. Thus is true of most radicals and/or extermists over time. Ironically, such an attitude is the exact opposite of that historically associated with conservatism (which used to focus on realistic pragmatism skeptical of utopian, abstract systems).
Mr. W., the Bill of Rights has a range of procedural rights.
ReplyDeleteAre you saying none of them necessary for "due process of law"?
I move past the understanding, at least by 1868, that "due process" also had a substantive component that would cover more than that.
If even one is, there is a redundancy. But, as I said, there was and is a debate on what ones are necessary. It also has a general meaning on its own and was something that was understood to be necessary for true liberty.
John Bingham and others argued that the P/I incorporated at least the first eight amendments. "That's a redundancy!" didn't stop that. Basic legal canons can't be applied strictly in a vacuum. Incorporated generally (the grand jury provision not applying given developments is not too upsetting) makes sense since the enumerated rights generally provide clear understanding of what is fundamental. But, the 9A underlines there is more than that anyway. So, it only takes one so far.
Also, we can also allow non-judges help flesh things out & do now -- Congress is allowed to enforce the 14A by more than a floor of what judges deem necessary though the Rehnquist/Roberts Courts restrained them some (as seen in the Boerne case).
BD: "Rights generally refer to limits on the government to take or abridge our lives, liberty or property"
ReplyDeleteOf course that's true, but as noted in many contexts the limits are on actions that only make sense collectively (such as the right to assemble).
The right of assembly or a right to expressive association is an individual right. The key here is who makes the decision to exercise the right. You decide whether to assemble, a collective like the people does not compel you to do so.
Once again, the collective people exercise powers, individuals exercise rights.
BD: "In such cases, by definition, such attorneys or jurists are not acting as textualists."
ReplyDeleteMr. W: When nobody or thing measures up to your criteria, the problem be with your criteria.
Ummm... when did I invent the definition of textualism?
In any case, in order to determine if someone is employing textualism, you first have to define the act and then apply the facts to the definition.
You can't fight English. An individual cannot by definition constitute an assembly or an association. This is why the cases over, say, the right to association have been filed by collectives (NAACP v. Alabama, Roberts v. US Jaycees, Dale v. Boy Scouts of America, etc.,).
ReplyDeleteMr. W:
ReplyDeleteIndividuals seeking to challenge a government infringement of one of their individual rights often organize into or work with organizations to bring suit. See, e.g., ACLU, Rutherford Institute, NRA, etc. This legal strategy does not make the right any less individual.
Both textualism and the New Originalism look to the original public meaning of the text, don't they? While the New Originalism provides a "Construction Zone" when the text of the Constitution is not clear, I don't think that's the same for textualism.
ReplyDeleteJoe,
ReplyDeleteWhile away on business, I write a letter to my oldest child for my wife to read aloud to all the children to clarify the 'rules of the house' while I am gone. It says 'you are commanded to be kind, generous and honest to your younger sister.' After reports my younger daughter has been acting like a brat, I write another letter to my youngest child to also be so read as an additional rule of the house. It says 'you are commanded to be kind to your older brother.' If my oldest says to me 'dad, my sister is not being generous and honest with me and she must, because when you wrote that she be kind you must have incorporated the generosity and honesty you commanded of me along with that of kindness.' Would that persuade you?
I mean, there's certainly instances where to be kind one should also be honest and/or generous. But they're not the same things, and I think the fact that I specified only kindness of my daughter and specifically not generosity and honesty makes the most natural reading that she is obligated to be kind (and generous and honest when that is demanded in order to be kind), but not otherwise generous and honest to him...
"This legal strategy"
ReplyDeleteThose citations weren't of instances of hiring or forming an association in order to better carry on a lawsuit. The associations themselves were the ones suing for *their* right. The association's right. No individual plaintiffs were named, and there's a reason for that: an individual cannot, by definition, constitute an association (and an assembly).
"when did I invent the definition of textualism?"
ReplyDeleteI did not say you did, rather you invoke it as an ideal. When no one seems to achieve that ideal in real life, the ideal is suspect as radical, utopian, extremist, etc.,
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ReplyDeleteShag: Both textualism and the New Originalism look to the original public meaning of the text, don't they? While the New Originalism provides a "Construction Zone" when the text of the Constitution is not clear, I don't think that's the same for textualism.
ReplyDeleteWe definitely need to define the terms here because the mean different things to different people.
The terms "textualism" and "original meaning" should be synonymous and mean applying the law as the terms were understood at the time the law was enacted. This is the basic approach to interpreting contracts, wills and statutes applied to the Constitution.
The term "textualism" has been somewhat bastardized by those who apply modern dictionary meanings to words to terms of art which had a different meaning when enacted. Mr W engages in this redefinition.
"New Originalism" is a progressive term which generally includes "original meaning" jurisprudence, but often goes beyond this simple concept.
I prefer the term "original meaning" because it is self explanatory and excludes the bastardization of textualism.
Over at the Originalism Blog there is a 9/05/18 post:
ReplyDelete***
The Word “Textualist” is too Vague
By Andrew Hyman
In this big world, there are both “textualist originalists” and “textualist nonoriginalists,” who are very different from each other. A textualist nonoriginalist will read a phrase in the law, and will pick out which meanings of those words strike him as fair (or preferable) in context of the surrounding words. The nonoriginalist textualist will thus often discard the sense in which the public originally understood how that law actually employed those words.
---
Consider the word “due” in the Fifth Amendment; it might be construed by a textualist nonoriginalist to mean “owed according to natural law,” whereas the original public meaning of that word in context was undoubtedly “owed according to the law of the land.” Millions of other examples exist of how a textualist originalist will behave differently from a textualist nonoriginalist, because the latter sees much more ambiguity in the legal text. They both look to the text and are governed by the text, but behave in different ways. So let’s not lump these two kinds of textualists together.
---
---
***
It's a short post and has some interesting comments on James Madison. I was not familiar with the term "non-originalist textualist." Could it be that textualism comes in various varieties and vagueries as does originalism? So, is SPAM an originalist textualist or a non-originalist textualist, assuming that he still claims to be a textualist, maybe of the cafeteria variety - or vagueness?
The term "original meaning," assuming it is self explanatory, does not inform us of the "original meaning" back, say, in 1789 (1787 Constitution) or 1868 (14th A). And SPAM's omission of the word "public" raises potential subjectivity rather than an effort at an objective standard.
ReplyDeleteBy the Bybee [expletives deleted, despite Gina], Randy Barnett is a follower of the New Originalism, as well as a libertarian and a conservative. Randy has the "spirit."
Shag:
ReplyDeleteRandy Barnett is one of the leading proponents of original meaning jurisprudence and has attempted to limit the somewhat amorphous idea of "New Originalism" to only original meaning.
Barnett is a good example of why one shouldn't take very seriously whatever-they're-calling-themselves-today conservative 'textualists'. His main idea is the 'presumption of liberty,' which Courts should use when reviewing challenges to government action. Where in the Constitution do you find this 'presumption of liberty' requirement? Somewhere in the penumbras of Article XII I guess.
ReplyDeleteRandy wears his "Constitutional Hardhat" quite frequently in the New Originalism's "Construction Zone.""Original public meaning" - sometimes called "original meaning" is a centerpiece of the New Originalism. Larry Solum is also follows the New Originalism but in his view its "Construction Zone" rarely needs to be entered but Randy has GPS at the ready to more frequently enter the "Construction Zone."
ReplyDeleteMr. W: His main idea is the 'presumption of liberty,' which Courts should use when reviewing challenges to government action. Where in the Constitution do you find this 'presumption of liberty' requirement?
ReplyDeleteThe Preamble setting forth the purposes of the Constitution: 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.
As noted in the Due Process Clause of Fifth Amendment, liberty is among the core trilogy of natural rights: No person shall...be deprived of life, liberty, or property, without due process of law.
All the rights guaranteed by the Bill of Rights protect individual liberty against the exercise of government power.
The Ninth Amendment guarantees all rights not expressly included in the Constitution.
Outside of the four corners of the Constitution, the advocates of liberalism whose ideas the Founders were borrowing to create their new Republic long argued in favor of a presumption of liberty.
That being said, progressives believe liberty is merely the part of our lives the government chooses not to direct and is a privilege granted by the government rather than a natural right guaranteed by the Constitution. Progressive jurists will never apply Barnett's presumption of liberty. We need a constitutional amendment expressly guaranteeing liberty from government direction as a fundamental right which can only be abridged to prevent people from harming the life, liberty and property of others.
The 14A provides a tripartite mechanism that has an overlapping quality:
ReplyDeleteAll 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. 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.
So, citizens are protected from "making or enforcing" that abridges privileges or immunities of citizens. GM is writing an article on a case that was a major influence on the understanding of the meaning of "privileges or immunities," but there wasn't some united understanding of the reach. But, one understanding overlaps with the terms of the first eight amendments. Thus, e.g., when states interfered with white abolitionists talking about slavery, it violated their privileges and immunities per Article Four.
Separately, states cannot "deprive" (how is that different from "making or enforcing"? one can debate, but people who voted on the 14A didn't all linguistically hair-split, suffice to say) due process of laws. For a broader group, namely, "persons." Various antebellum courts gave meaning to "due process." For instance, even if a state constitution expressly didn't have a Takings Clause, taking property from "A" and giving it to "B" without lawful authority was deemed as a violation of due process. Something like confrontation of witnesses against you etc. also could be deemed necessary even if not expressly cited.
[As Congress said, the BOR were proposed for the purpose of "extending the ground of public confidence in the Government" -- it is not necessarily the case that Congress had power to abridge free speech before the 1A was ratified; it in part "expressed a desire, in order to prevent misconstruction or abuse of its powers" -- a redundancy there was understanding -- "due process" is a general term; the specific provisions were aspects of particular concern, a listing would enhance "public confidence."]
https://www.archives.gov/founding-docs/bill-of-rights-transcript
Finally, again using a different word ("deny") and applied to "persons," is the equal protection provision. There is some overlap there. For instance, if you deny religious liberty, chances are you will favor some religions over others. Some treatment of like as like before depriving life, liberty or property also was deemed necessary for "due process" as well. Plus, without slavery, there was many who argued citizenship itself assumes a certain equality. The provision also can protect non-citizens, thus a state cannot deny non-citizens from being a notary.
The three categories overlap but have different contents in various ways. The usual history is well known on a major why "due process" in the 14A has been the main focus for incorporation -- the Slaughterhouse Cases and their progeny held P/I had a narrow reach. The opinion was 5-4, with Chief Justice Chase among the dissenters. This suggests there was some debate here, even if some want to not treat the majority as acting in good faith.
The meaning of the 14A, like the rest of the Constitution, would be a matter of an evolving understanding by "We the People" (including in legislatures and on courts) of the meaning of the terms. There is some broad agreement on certain matters (the original post being an example -- the matter already is basically accepted as a matter of due process if not expressly put in a 8A box), reasoned debate over others.
Lol, Bart proves my point. There is no text re: a presumption of liberty. He, and Barnett, try to construct one using cherries picked from the penumbras of various parts of the Constitution. The best he can point to is 1. the mention of securing the blessings of liberty as *one* of the goals of the *preamble* of the Constitution and 2. the due process clause, which empowers the government to deprive liberty (and life!) as long as a due process if followed! Needless to say even Justice Douglas in Griswold would blush at such a slim textual foundation.
ReplyDeleteThis, my friends, is the sum and substance of whatever-they're-calling-themselves-today conservative 'textualists'. Their criticisms of 'living constitutionalists' while they fashion such a-textual flim flam based on the 'spirit' of the Constitution makes one recall the expression 'every accusation is a confession!'
In Judge Kavanaugh's opening statement to the Senate Judiciary Committee he said:
ReplyDelete"In deciding cases, a judge must always keep in mind what Alexander Hamilton said in Federalist 83: 'the rules of legal interpretation are rules of common sense.'"
Kavanaugh is a self proclaimed originalist, although he did not align himself with a particular version of originalism. I'm not aware whether Hamilton can be identified as an originalist. But I wonder how "common sense" ties into any of the various versions of originalism, but especially "original public meaning originalism." Is that "common sense" a universal or does "common sense" vary between individuals doing the interpreting? Or is the "common sense" determined as of the time that the law being interpreted was enacted? Most judges probably think they use "common sense" at the time they do the legal interpretation, which would suggest that "common sense" evolves over time.
"No brilliance is required in law, just common sense and relatively clean fingernails."
ReplyDelete-- John Mortimer (Rumpole of the Bailey)
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ReplyDeleteThe Enlightenment was very intrigued by the idea of "common sense" in all sorts of areas. See https://en.wikipedia.org/wiki/Scottish_common_sense_realism
ReplyDeleteWhen Hamilton advocated the rules of legal interpretation, he meant the standard principles of common law which you can find in Blackstone and, with some modifications, even today. Hamilton was saying that those rules were based upon/derived from "common sense", meaning that they would be innately apparent to anyone of ordinary understanding. Here's Jefferson with a well-known example (letter to Peter Carr, 10 Aug 1787):
"State a moral case to a ploughman and a professor. The former will decide it as well, and often better than the latter, because he has not been led astray by artificial rules."
Federalist 83 was in support of ratification of the 1787 Constitution. Did Hamilton think the Constitution was in the nature of common law? The common law evolved as judge-made law. Currently is the Constitution " innately apparent to anyone of ordinary understanding"? Was it so back when? Or might Hamilton have looked upon the Constitution evolving over time, for example, as "self-defense" has evolved over time making its way into the 2nd A in 2008, as least in the home?
ReplyDeletePerhaps in Kavanaugh's mind his originalism is a matter of "common sense." But what about other varieties of originalism?
Jefferson's example suggests he was not a fan of positive law. I'm not aware that morality plays a big part in interpreting/construing the Constitution although one constitutional scholar suggested that originalism seems faith-based. "Common sense" may be uncommon with split decisions, especially 5-4. Maybe "common sense" is a natural right unenumerated in the Constitution.
Query: Did "Hamilton, The Musical" include a song on Hamilton's "common sense"?
I appreciate both Joe's and Mark's comments.
I don't see any reason to think that Hamilton thought the Constitution itself was "common law". The Federalists generally did argue that the Constitution *incorporated* common law, but Marshall rejected that view early on.
ReplyDeleteAs I read Hamilton, he was limiting his comment to the principles of interpretation. In their debate over the Bank (made privately to Washington), both Hamilton and Jefferson used common law principles to interpret the Constitutionality of the Bank (plus other arguments as well). The expectation that common law principles of interpretation would be used was widespread, though then as now people added policy arguments when they thought those would help. Hamilton was simply reinforcing the idea of using common law interpretation by claiming that those principles simply expressed formally what common sense (or "natural law" or "self-evident truth") would dictate.
Common law does, of course, evolve over time. The Enlightenment generally was convinced of progress, and the Framers were no less convinced that they had learned enough to fix the defects of previous republican governments. Madison in Federalist 9:
“The science of politics, however, like most other sciences, has received great improvement. ... The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided.”
And here's James Wilson making the point more generally:
“Our progress in virtue should certainly bear a just proportion to our progress in knowledge. Morals are undoubtedly capable of being carried to a much higher degree of excellence than the sciences, excellent as they are. Hence we may infer that the law of nature, though immutable in its principles, will be progressive in its operations and effects. Indeed, the same immutable principles will direct this progression. In every period of [man’s] existence, the law which the divine wisdom has approved for man will not only be fitted to the contemporary degree, but will be calculated to produce, in future, a still higher degree of perfection.”
Jefferson was in no way opposed to positive law. He did, after all, completely revise the Virginia statutes (along with George Wythe) and was very proud of the fact that changes in that law would reinforce the republican aspects of Virginia society:
ReplyDelete“I considered 4 of these bills, passed or reported, as forming a system by which every fiber would be eradicated of ancient or future aristocracy; and a foundation laid for a government truly republican. The repeal of the laws of entail would prevent the accumulation and perpetuation of wealth in select families .... The abolition of primogeniture, and equal partition of inheritances, removed the feudal and unnatural distinctions which made one member of every family rich and all the rest poor, substituting equal partition, the best of all [laws for redistributing land ownership from rich to poor].”
Jefferson went even further in his private letters. On October 28, 1785, he wrote this to James Madison:
“I am conscious that an equal division of property is impracticable. But the consequences of this enormous inequality producing so much misery to the bulk of mankind, legislators cannot invent too many devices for subdividing property, only taking care to let their subdivisions go hand in hand with the natural affections of the human mind. The descent of property of every kind therefore to all the children, or to all the brothers and sisters, or other relations in equal degree is a politic measure, and a practicable one. Another means of silently lessening the inequality of property is to exempt all from taxation below a certain point, and to tax the higher portions of property in geometrical progression as they rise.”
The word "progress" dominates Mark's 11:20-21 PM comments. I imagine that SPAM will have conniptions when he reads these well organized comments searching for presumptions of liberty being violated by the concept of "progress." Before Reagan was President, he was a huckster for General Electric informing all that at GE "Progress is our most important product." As President, Reagan sought to turn back the clock on progress, with steps leading to the current inequality. Reagan's AG Ed Meese was the huckster for originalism's "original intent" that would help turn back the clock on progress, aided and abetted by the nascent libertarian/conservative movement of the Federalist Society that objected to the "progress" from the Warren Court (also the Burger Court) that included its foundational decision in Brown v. Bd. of Educ. (Unanimous, 1954). Brown came down as I was finishing law school. There was no Federalist Society back then. (By the way, shouldn't a more accurate name have been the "Anti-Federalist Society"?)
ReplyDeleteBefore this thread enters Moderation, I expect frantic and frenetic responses from our dynamic dyslexic duo Bert and Brat in their efforts to take us back to whenever they thought America was great. I suspect that for them and for Trump it had to be pre-Brown.
Even though GE currently is undergoing economic pains in its aging process, "progress" is humanity's most important product for survival.
شركة ركن الأمانة هي شركة لديها باعا كبيرا في كافة الخدمات المنزلية وخاصتا خدمات التنظيف وخدمة مكافحة الحشرات
ReplyDeleteشركة مكافحة حشرات بابو عريش
شركة مكافحة حشرات بصامطة
شركة تنظيف بوادي بن هشبل
شركةة مكافحة حشرات بصبيا
شركة تنظيف بللحمر
شركة تنظيف باحد رفيدة
Mr. W: There is no text re: a presumption of liberty. He, and Barnett, try to construct one using cherries picked from the penumbras of various parts of the Constitution.
ReplyDeleteThe term you are looking for is structure.
The Constitution expressly states its purpose is to protect liberty, the first eight amendments of its "bill of rights" expressly protect various aspects of liberty and the Ninth Amendment guarantees: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
What is the Ninth Amendment apart from a presumption of liberty? How can the provision function without a presumption of liberty?
Your willingness to deny a presumption of liberty because the Ninth Amendment does not use the term "presumption of liberty" compelling you to do so is a perfect example of my last point concerning progressive jurists and the need of a liberty amendment compelling them to at least address a general guarantee of liberty.
"The Constitution expressly states its purpose is to protect liberty,"
ReplyDeleteNope. It states in the Preamble that securing the 'Blessings of liberty' is *one* of many stated goals (domestic tranquility, common defense, providing for the general welfare, etc). And the ninth amenmend mentions unnamed rights (plural) retained by the people. Not only is there no mention of a presumption of Liberty requirement, but the state of recognized rights at the time of its adoption clearly does not match with Barnetts presumption of Liberty (for example, sodomy and obscenity laws, which Barnett admits can't be squared with any sensible presumption of Liberty, were unquestioned at the time as not being violations of Liberty).
The presumption of Liberty theory is totally a textual and a historical. It's a perfect example of trading ones political philosophy into the Constitution with little or no textual or historical support. Bart rants about progressives being unfaithful to the text, but this is clearly a case of 'every accusation is a confession.'
Shag: There was no Federalist Society back then. (By the way, shouldn't a more accurate name have been the "Anti-Federalist Society"?)
ReplyDeleteProgressives would not take over the legal academy for another couple decades, which led to the creation of the Federalist Society as a counter balance.
Despite their self-identification, Federalist Society lawyers and jurists will not be true federalists until they are willing to reverse a century of progressive precedent and restore the federalist Constitution as written. They talk a good game, but they battle around the margins.
We Federalists leave "anti-federalism" to the Democrats like California's confederate government playing nullification games.
Mr. W: but the state of recognized rights at the time of its adoption clearly does not match with Barnetts presumption of Liberty
ReplyDeleteI love it when progressives who reject originalism in all of its forms dishonestly play original intent games to counter original meaning proofs.
The many failures of our young Republic to live up to the aspirations of its Constitution does not change the original meaning of the words and terms of that charter.
You are studiously ignoring the questions I posed in response to your claim the Constition nowhere contains a presumption of liberty:
What is the Ninth Amendment apart from a presumption of liberty?
How can the provision function without a presumption of liberty?
The Ninth Amendment nowhere mentions a presumption of liberty. It mentions rights (plural, right there it tells you there is something at the least more than a single, general presumption) *retained* by the people. These would be rights the people recognized at the time (hence, retained). A general presumption of liberty was most certainly not recognized as a right that the people ratifying the Amendment would have understood they were retaining, since I could give myriad examples of things Barnett concedes could not possibly be compatible with his presumption of Liberty but which the ratifiers would not have recognized as a right that they were retaining.
ReplyDeleteThe Ninth functions easily under its current construction of protecting rights rooted in our nation's history and traditions.
There is no presumption of liberty mentioned *at all* in the text of the Constitution. You're reading your political philosophy into it on a textual 'foundation' that would make the most progressive Jutuce you could name blush.
Should read 'would not have recognized as violating any right they were retaining
ReplyDeleteDo textualists and originalists in interpreting/construing the 9th A take the position that it addresses "unenumerated rights" that existed in 1791 when the BOR was ratified? Or does the 9th A address rights that came into existence thereafter and continuing?
ReplyDeleteDoes a literature search of 1791 reveal references to a "presumption of liberty" in the Constitution?
Is the retention by "the people" of the 9th A's "unenumerated rights" recognized in a particular manner, e.g. collectively, or by each individual person. (Keep in mind that "the people" can include non-citizens.) Query: Was "self defense" an "unenumerated right" under the 9th A?
By the Bybee [expletives deleted, despite Gina], assuming "liberty" is an enumerated right in the Constitution, how does the 9th A apply to "liberty" or a "presumption of liberty"? Or is SPAM claiming that a "presumption of liberty" was an "unenumerated right" in 1791?
Anyone claiming to be a proponent of interpreting the Consitition 'as written' and then points mainly to the Ninth Amendment, the most amorphous, vague part of the Constitution, as providing the overriding principle of the document, has given up the game at the start.
ReplyDeleteFor any honest 'textualisr' the Ninth is the biggest *challenge* to the philosophy, because it's *as written* the provision of the Constitution which provides the least textual guidance (and therefore limits) on judicial power. It's the go to Amendment for making up rights (honest textualists like Bork explained this point very well).
I am familiar with Jefferson's belief in the basic common [moral] sense of the average person and this affected his views of republican government. He had a somewhat limited reach there as applied to non-whites and women, but at least asserted agnosticism.
ReplyDeleteThe developing moral sense cited in one of Mark Field's comments suggests it was understood that application of constitutional law would develop over time. His discussions of original understanding are interesting though of limited value at some point, both to guide us today and as a likely counter to those who use "originalism" to promote a conservative viewpoint. People use the same material and reach different conclusions. And, any snapshot is going to be about a few people talking anyway. Life in the "pits" will tend to be mixed.
U.S. v. Hudson [1812] also rejected a common law system of crimes though only a "majority" of the court (in an opinion perhaps tellingly written by Justice William Johnson) was said to agree with the result. In part:
Although this question is brought up now for the first time to be decided by this Court, we consider it as having been long since settled in public opinion. In no other case for many years has this jurisdiction been asserted; and the general acquiescence of legal men shews the prevalence of opinion in favor of the negative of the proposition.
The "conclusion is simple, obvious" but only a "majority" was cited as agreeing with the opinion. Common sense apparently is open to dispute. Earlier practice did assume common law crimes though Justice Chase in U.S. v. Worrall on circuit noted:
But, in my opinion, the United States, as a Federal government, have no common law; and, consequently, no indictment can be maintained in their Courts, for offences merely at the common law.
Chase was often no friend of Jeffersonians but on that point there appears to have been some common ground.
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ReplyDeleteAs to the "presumption of liberty," putting aside the question begging nature of what "liberty" means, it is telling that the 9A speaks of "rights."
ReplyDeleteThere is a well recognized assumption of lenity when applying criminal statutes but not so much some open-ended application of liberty.
Mr. W: The Ninth Amendment nowhere mentions a presumption of liberty. It mentions rights (plural, right there it tells you there is something at the least more than a single, general presumption) *retained* by the people. These would be rights the people recognized at the time
ReplyDeleteDo you realize this is a far, far more expansive take than Barnett's assumption of liberty because our young Republic assumed far more liberty than we do today?
I would, therefore, have rights to keep and bear arms freely and openly; buy what I please without government restriction; travel the public roads, perform construction on my home, hunt and practice law without government license, and be free to perform thousands of acts which we have made criminal over the past century?
The Ninth functions easily under its current construction of protecting rights rooted in our nation's history and traditions.
This current standard is far, far more restrictive than your opening suggestion and has effectively rendered the Ninth Amendment a nullity. How can a standard which relies on widely and expressly guaranteed liberties enforce a guarantee of unenumerated liberties?
Your first standard guaranteed the liberties assumed by the citizenry at the time we ratified the Constitution, while the latter standard only guarantees which society affirmatively and widely protected in the past.
Your inability to settle on your own personal standard to protect our general liberty again illustrates the need for a constitutional provision expressly defining what liberty the Constitution protects.
My reference to "back then" that SPAM responded to at 10:52 AM was to 1954, when Brown was decided as I was finishing law school. SPAM's statement:
ReplyDelete"Progressives would not take over the legal academy for another couple decades, which led to the creation of the Federalist Society as a counter balance."
is not quite accurate. The Federalist Society movement came along in the 1970s, apparently in reaction to Brown and the civil rights movement that followed, including especially the Civil Rights Acts of the mid 1960s. Perhaps SPAM had in mind the legal academy in the former Slave States.
Further in that comment, SPAM seems critical of members of the Federalist Society:
"Despite their self-identification, Federalist Society lawyers and jurists will not be true federalists until they are willing to reverse a century of progressive precedent and restore the federalist Constitution as written. "
That suggests a return to Jim Crow.
But SPAM closes that comment with a screed that begins "We Federalists ... " that might suggest he is not a member of the Federalist Society, or if he is, he is in step but many members are not. But as Tonto responded to the Lone Ranger about their being surrounded by Indians, "What you mean 'we', white man?"
"The developing moral sense cited in one of Mark Field's comments suggests it was understood that application of constitutional law would develop over time. His discussions of original understanding are interesting though of limited value at some point, both to guide us today and as a likely counter to those who use "originalism" to promote a conservative viewpoint."
ReplyDeleteI read Wilson's comment as supporting Prof. Balkin's application of originalism. Wilson, btw, was not alone in adopting this view. Others, including Lincoln and, on occasion, the Court have made similar statements.
When SPAM at 11:58 AM in response to Mr. W refers to "standards," it should be kept in mind that SPAM has no standards, except that he believes America's best days were The Gilded Age of the late 19th century.
ReplyDeleteShag: Does a literature search of 1791 reveal references to a "presumption of liberty" in the Constitution?
ReplyDeleteLocke addressed this concept at length in his Two Treatises of Government a century before in 1698 and then Mill readdressed it later in On Liberty. I am unaware of any substative contemporary legal commentary on how to enforce the 9A, though.
Shag: The Federalist Society movement came along in the 1970s, apparently in reaction to Brown and the civil rights movement that followed, including especially the Civil Rights Acts of the mid 1960s.
ReplyDeleteYou have offered this unfounded claim before. Do you have any evidence, preferably with a link?
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ReplyDelete"Now, and here, let me guard a little against being misunderstood. I do not mean to say we are bound to follow implicitly in whatever our fathers did. To do so, would be to discard all the lights of current experience - to reject all progress - all improvement. What I do say is, that if we would supplant the opinions and policy of our fathers in any case, we should do so upon evidence so conclusive, and argument so clear, that even their great authority, fairly considered and weighed, cannot stand; and most surely not in a case whereof we ourselves declare they understood the question better than we."
ReplyDelete-- Abraham Lincoln at Cooper Union
In 2018, the "fairly considered and weighed" test is easier to overcome as compared to when people were still around that met "our fathers."
At 12:21 PM SPAM fails to respond to the question I raised, instead crossing the Atlantic to literature preceding 1791. I repeat the question:
ReplyDelete" Does a literature search of 1791 reveal references to a 'presumption of liberty' in the Constitution?"
Also, SPAM's second sentence may be in response to a separate question I raised, but I'm not sure which of several questions on the 9th A that I posed.
Lincoln also said that the Congress which adopted the DoI “did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.”
ReplyDeleteLincoln always walked a fine line between calling for radical change (at least on the topic of slavery) and proving that he would go about it conservatively.
Regarding SPAM's 12:24 PM comment, both the Federalist Society and originalism movements began about the same time in the 1970s, each challenging the activism of the Warren Court and even that of the Burger Court which followed the Warren Court. The Federalist Society is said to have been formed by libertarians/conservatives while the originalism movement is credited to Ed Meese who became Reagan's AG in 1981. The Federalist Society also got on the originalism bandwagon. I don't know the extent of initial coordination between these two movements but eventually they seemed like two peas in the same pod. The foundational decision of the Warren Court was Brown in 1954. In response both libertarians and conservatives challenged Brown as basically an unconstitutional decision, even though it was unanimous with a single opinion. The civil right movement followed. The Warren Court addressed individual civil rights that did not involve race, primarily in the area of criminal law giving greater legal rights to both whites and blacks. The Brown civil rights movement led to the Civil Rights Acts of the mid-1960s, undoing more of Jim Crow than did Brown. Nixon was successful in 1968 with his Southern Strategy that gained him support in the former Slave States, closely beating Hubert Humphrey. Then came Watergate during Nixon's second term, forcing him eventually to resign. Democrat Jimmy Carter prevailed in 1976 over Gerald Ford. Then in 1980, Carter lost to Reagan who also employed a variation of Nixon's Southern Strategy. That jelled both the Federalist Society and originalism movement. Some originalists did constitution cartwheels in attempts to demonstrate that Brown comported with originalism, as only few directly challenged Brown by that time. The spotlight was shined on alleged judicial activism of the Warren and Burger Courts, mainly concerning criminal law civil rights of individual defendants, white and black, who were too poor to engage the quality of lawyers available to the wealthy, for whom Reagan quickly obtained tax cuts.
ReplyDeleteBut Brown in 1954 was the foundational decision of the Warren Court. It took decades to somewhat settle racial issues and the civil rights movement that followed Brown, including legislation from Congress that was authorized under the 14th A. Much of Jim Crow was outlawed. But then we got Trump in 2016 with his racist tinged campaign following two terms of America's first African-American President. SCOTUS via several 5-4 decisions has somewhat dampened the civil rights movement. I submit that both originalism and the Federalist Society in their originations found it difficult accepting Brown (Unanimous, 1954). Originalists and Federalist Society members of the past couple of decades might examine history pre- and post- Brown to determine the extent to which Brown and the civil rights movement it spawned to perhaps better understand the originalism and Federalist Society movements' foundations. While few challenged Brown directly in recent decades, it may be that with Trump Brown may once again be challenged.
Mark Field is a slavery apologist. So sad.
ReplyDelete"Originalism Without History: A Response to Professor Randy Barnett"
ReplyDeletehttp://www.dorfonlaw.org/2018/09/originalism-without-history-response-to.html
The kumbaya nature of the original post can only go so far clearly.
Shag:
ReplyDeleteOn what alternative Earth do you live?
for those interested, Politico recently published a pretty good piece concerning the genesis of the Federalist Society.
1. You are confusing the fact that early government's might not have restrictions with the idea that it was understood that the people had rights to those things that governments could not infringe on. It's not surprising that an agrarian largely rural society had fewer laws on the books, that's true for every nation historically. But that doesn't mean they thought the government could not pass laws in those areas of it wanted.
ReplyDelete2. It's also irrelevant to my point: Barnett concedes things like sodomy or obscenity laws are incompatible with the presumption of Liberty. But it's obvious that the people who wrote and ratified the 9th did not think rights to Liberty in those areas were being protected by the 9th. QED the rights 'retained' could not = Barnetts presumption.
3. Aren't you supposed to be a lawyer? I guess you don't do much constitutional law because you don't seem to understand case law re: rights deeply rooted in our nation's history and traditions. They're not rights that were enumerated in the Constitution or other document, they were u codified rights long recognized in the common law tradition. The right to self defense would be an example (were I a jurist I would choose this way to protect firearm ownership, it's better than the obviously militia-tied text of the 2nd).
Again, it bears repeating. Your presumption of Liberty is NOWHERE stated in the text of our constitution. Your adherence to a COMPLETELY a-textual guide to the Constitution while claiming to be a textualist is a textbook example of why such theories should usually be laughed off quickly and easily.
Should read if it wanted
ReplyDeleteand uncodified
"You are confusing the fact that early government's might not have restrictions with the idea that it was understood that the people had rights to those things that governments could not infringe on. It's not surprising that an agrarian largely rural society had fewer laws on the books, that's true for every nation historically. But that doesn't mean they thought the government could not pass laws in those areas of it wanted."
ReplyDeleteUnder English doctrine after the Glorious Revolution, Parliament was sovereign. It could pass any law it wanted to pass, regardless of subject matter and unchecked by the judiciary. So for 90 years or so the colonists lived under a system which granted total power to the legislature, in which they had no say whatsoever.
Even if we limit our attention to the colonies themselves, the colonial legislatures were unchecked by any BoR. The only formal check was in the governor's veto or a similar veto by the British government. The actual range of legislation varied from colony to colony, but it could be and often was quite restrictive (e.g., established churches, required church attendance, etc.).
When the former colonies became states, some adopted new state constitutions with bills of rights prior to the Constitution, but others kept their old colonial charters. Regardless, the new state legislatures had plenary power to legislate, with even judicial review in its infancy. Most people today would have found the regulation of personal conduct to be quite restrictive, and that doesn't even get into the issue of slavery, which alone makes a mockery of Barnett's claims about "liberty".
I refuse to click onto direct links provided by either Brett or SPAM. I do not trust either of them as years back one of them pulled a prank. So if SPAM furnishes the URL to what may be Genesis 1, 2, 3 or 4, I can copy and paste.
ReplyDeleteSPAM seemed earlier to self describe as a true Federalist, distinguishing himself from manu members of the Federalist Society. If SPAM is an actual member of the Federalist Society, he is not kindly inclined to many of its members. Maybe SPAM is an "alternative Federalist" in his rural CO community where perhaps SPAM in the manner of Rehnquist before becoming a justice challenging persons trying to vote.
By the Bybee [expletives deleted, despite Gina], speaking of Rehnquist, when he became Chief, his Court quickly became activist. I wonder if that Genesis reveals the role Rehnquist played in the Federalist Society movement, as he had complained of the judicial activism of the Warren Court.
Another point. In the colonial era, the word "liberty" could mean "the right to be ruled by a government which I had some say in choosing" or it could mean some sort of immunity from general law. Here, for example, are the definitions given by Samuel Johnson:
ReplyDelete1. Freedom, as opposed to slavery. [Note that this is compatible with a wide range of regulation of daily conduct.]
2. Freedom, as opposed to necessity.
3. Privilege; exemption; immunity. [Medieval cities were often granted "liberties", which meant that they could pass their own rules and regulations independent of the crown. It said nothing about the amount of regulation, which was mostly unrestricted unless it infringed on the King.]
4. Relaxation of restraint.
5. Leave; permission.
It can be difficult to understand which meaning a colonist might have had in mind when using the term.
Mark's closing at 7:21 PM:
ReplyDelete" ... and that doesn't even get into the issue of slavery, which alone makes a mockery of Barnett's claims about 'liberty'".
on slavery might be explained away by Barnett's "spirit" of the entire Constitution applied post-Civil War to the present.
Perhaps Barnett's "presumption of liberty" can be described as his "presumptuousness of liberty under originalism."
ReplyDeleteMark Field provides details on my earlier comment on the breadth of the word "liberty." I'm reminded of the use in naval movies like "Mister Roberts."
ReplyDeleteRandy Barnett comes off as one of the more hackish members of the "Volokh Conspiracy."
MR. W: You are confusing the fact that early government's might not have restrictions with the idea that it was understood that the people had rights to those things that governments could not infringe on. It's not surprising that an agrarian largely rural society had fewer laws on the books, that's true for every nation historically. But that doesn't mean they thought the government could not pass laws in those areas of it wanted.
ReplyDeleteOur Republic hardly started from legal scratch. We were a descendant of England and well aware of the other European systems of government. Our Republic could have adopted any of this heritage, but chose instead to reject most of its limits. From the outset, the colonies rejected the feudal and semi-feudal agricultural systems of the old world. We quickly developed the effectively free trade system about which English liberals theorized.
Barnett concedes things like sodomy or obscenity laws are incompatible with the presumption of Liberty. But it's obvious that the people who wrote and ratified the 9th did not think rights to Liberty in those areas were being protected by the 9th. QED the rights 'retained' could not = Barnetts presumption.
Once again, the shortcomings of the early Republic do not change the original meaning of the term liberty.
Aren't you supposed to be a lawyer? I guess you don't do much constitutional law because you don't seem to understand case law re: rights deeply rooted in our nation's history and traditions. They're not rights that were enumerated in the Constitution or other document, they were u codified rights long recognized in the common law tradition.
The founders expressly rejected the English common law constitution as an insufficient protection of our liberties when they adopted our written Constitution. The Constitution is in no way limited by past common law nor may it be changed through latter common law.
Mark: In the colonial era, the word "liberty" could mean "the right to be ruled by a government which I had some say in choosing" or it could mean some sort of immunity from general law. Here, for example, are the definitions given by Samuel Johnson:
ReplyDelete1. Freedom, as opposed to slavery. [Note that this is compatible with a wide range of regulation of daily conduct.]
2. Freedom, as opposed to necessity.
3. Privilege; exemption; immunity. [Medieval cities were often granted "liberties", which meant that they could pass their own rules and regulations independent of the crown. It said nothing about the amount of regulation, which was mostly unrestricted unless it infringed on the King.]
4. Relaxation of restraint.
5. Leave; permission.
It can be difficult to understand which meaning a colonist might have had in mind when using the term.
In what context was the term “liberty” used in a Constitution imposing a myriad of limits on government power and which was not ratified until even more limits were imposed?
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ReplyDelete