Sunday, June 30, 2019

Lessig, "translation," and institutional legitimacy

Sandy Levinson

Larry Lessig is clearly one of the most interesting and imaginative scholars within the legal academy, and he has written a book that fully vindicates the enthusiastic blurbs it receives (from myself, as well as others).  Richard Fallon describes the book as “a marvel of learning, insight, and edifying provocation.”  He is right in every way. 

Pam Brandwein and Jack Balkin have offered excellent summaries of Lessig’s basic argument in their postings in this symposium.  His notion of “fidelity” requires attentiveness to the “meaning” of the Constitution, and the presumption is that judges (and others) should be faithful to that meaning.  But he is also attentive to institutional (and political) “constraint” that may lead the Court on occasion to avoid fidelity in order to protect itself by remaining within what is viewed (who actually does the viewing is, of course, a key question, as Jack elaborates) as "public opinion" (which Barry Friedman emphasized in his relatively recent book) or, more likely, the wishes of dominant political elites.  He agrees with what is near conventional wisdom, for example, that Marbury represents far more of a prudential decision about the Court’s actual capacity to work its will against an oppositional Jeffersonian Administration than a truly convincing interpretation of Section 13 of the Judiciary Act of 1789 and/or Article III with regard to Congress’s power to add to the stipulated original jurisdiction of the Supreme Court.  

My own mentor, Robert McCloskey, many years ago argued that all major Supreme Court decisions were ultimately evaluated against the quite separate categories first of what Lessig calls legal “fidelity,” i.e., the persuasiveness of the strictly legal arguments that are offered; second, the institutional and political contexts within which the Court is acting and its own recognition that it is ill-advised to be either too innovative or, indeed, static in its legal interpretations if other key actors, including whatever one defines as “public opinion,” would take significant umbrage at the Court’s decision; and, finally, one’s assessment of the value consequences of the decision.  Justice Thomas only this past week, for example, indicated that the Court should not be hesitant to overrule its own precedents should they be manifestly unjust.

I realize that I basically agree with the McCloskeyan approach and, therefore, am inclined to agree with much of Lessig’s argument insofar as it is similar.  Why wouldn’t one prefer legal fidelity if there were no side costs?  The problem, obviously, is defining exactly what legal fidelity entails, to which I will turn presently, but there is a good reason that almost no one argues in public for the notion that anyone taking an oath of loyalty to the Constitution should be indifferent to ascertaining its meaning and then, if feasible, conforming with that meaning.  Problems arise only when other competing values emerge.  As I have argued elsewhere, it is one thing to repeat the injunction “let justice be done though the heavens fall,” even if one doubts that many people are really willing to adhere to the precept.  But I regard it as simply foolish to say “let the Constitution be adhered to though the heavens fall.”  That is to adopt a willfully blind form of legal positivism that simply ignores any questions either of political prudence or, at least as importantly, morality.
Even if Lessig and McCloskey are quite similar with regard to their overall evaluative approach, there is no doubt that Fidelity and Constraint is a far more carefully worked out elaboration of the argument, especially with regard to often deep analysis of given cases.  McCloskey’s genius was an ability to write, in The American Supreme Court (1960) a remarkably concise overview of what was then the roughly 170 year history of the Court in relation to the wider American political order.  With the exception of Marbury, almost no case was considered in any depth.  As already suggested, that is simply not the case here.  Fidelity and Constraint will undoubtedly be the subject of independent seminar devoted to looking at key cases and broader constitutional developments through the Lessigian lens and determining the strengths or weaknesses of his argument.  (Brandwein offers some valuable suggestions as to what a future research program might look like.)

I want to devote the remainder of my remarks to two specific issues.  The first, as already suggested, relates to how we assess legal fidelity and, more, particularly, the utility of Lessig’s key metaphor of “translation.”  The second is quite different, drawn from what I see as the almost elegiac tone  of his conclusion with regard to the ability of the Court (or, perhaps, the broader constitutional project itself) to survive our present political discontents, often encapsulated by the term “polarization.”

As to “translation,” I will “incorporate by reference” an essay that I wrote over twenty years ago, in a symposium in the Fordham Law Review that focused on some earlier work by Lessig setting out some of the ideas explored at much greater length in this new book.  (As he himself notes, he in effect put aside the work he had been doing in in order to delve into the world of the internet, including copyright and the implications of the new social media, where he became one of the ranking academics and public intellectuals.  Almost inevitably, as elaborated in Jack Balkin’s extensive ruminations on the book, one is tempted to compare the contexts of the late 1990s and the present with regard to the Court being able to play the crucial role that Lessig assigns it.  I will return to this comparison at the conclusion of my own remarks.)  In that essay, I focused on what I consider to be the central paradox of “translations,” captured, indeed, in my title, “Translation:  Who Needs It?”  That is, translations are most necessary to those who, like myself, are monolingual and therefore simply are unable to read any works written in a “foreign language” unless they are in fact translated.  

I cannot read a word of Homer in the original Greek, and, obviously, I could set out an almost literally infinite set of further examples drawn from all over the world and the literally hundreds of languages in which important articles or books are available to those who can read them.  Even assuming that books have been translated and thus available, in a way that untranslated ones simply are not to those like myself, the next question is evaluating the quality of the translation itself. 

As a long-time participant in extraordinarily valuable conferences at the Shalom Hartman Institute in Jerusalem that focused, among other things, on Talmudic interpretation, I quickly became familiar with an almost standard trope by which the deeply educated Hebrew speakers were prone to be critical, if not denunciatory, of one or another translations that non-Hebrew speakers had to read. Of course, the translators themselves were presumably skilled in Hebrew, and what was being illustrated was the obvious point that even skilled native-speakers did not necessarily agree on the meaning of the language.  

Hebrew presents special problems inasmuch as it does not include vowels in its classical written form, but similar problems quickly emerge with any and all exercises trying to convey the meaning of the words on a page.  I was dismayed, for example, to learn that Remembrance of Things Past is now more often translated as In Search of Lost Times, which, to put it mildly, conveys, at least to English speakers, quite different meanings.   Similarly, anyone looking for translated versions of Homer or Dante is instantly met with what might be regarded, on the one hand, as an embarrassment of riches, given the numbers available, or as a stress-laden requirement to pick out for oneself the “best translation” even in the absence of his or her own capacity to read the language being translated.

With regard to “translating” the 18th Century Constitution into a truly usable document in the 21st century, it is essential to Lessig’s argument that we can agree on what that Constitution might require in what Talmudic hermeneuticists would call pilpul, i.e., its unadorned textual meaning—and one should not underrate the importance to Lessig, who was, after all, a law clerk for Antonin Scalia, of text and textual fidelity—prior to engaging in certain second-order hermeneutic movements away from pilpul and toward a more sophisticated “translation” that is sensitive to context.  One of the remarkable things about studying Talmud, of course, is experiencing the sometimes astonishing deviations from what appears to be “plain meaning” in order to “neutralize” (a word much used at the Hartman Institute) the unacceptable implications of that meaning. 

In some ways, I am simply asking whether the use of the term “translation” really adds much, if anything, to the more standard term “interpretation.”  In both cases, we might be contrasting pilpul, or even a version of “original public meaning,” with necessarily modified meanings constructed to deal with decidedly new contexts in which it would be ill-advised, at the very least, to stick with meanings that, by definition, presupposed a quite different overall context from the one we in fact inhabit today.  

This point obviously does not affect at all the basics of Lessig’s argument.  In substantial ways, he can be viewed as defending a view of the “living Constitution,” as most memorably set out in Chief Justice Hughes’s majority opinion in Home Building & Loan Association v. Blaisdell (a case, incidentally, surprisingly omitted from Lessig’s discussion).  Hughes was memorably, and ably, answered by a dissenting opinion written by Justice Sutherland in which he embraced what Scalia might have gladly embraced as the “dead Constitution.”  Sutherland emphasized the ostensibly “clear text” of the Contract Clause and the historical materials indicating that the elite who dominated the Philadelphia Convention were certainly appalled by the prospect of debtor relief as manifested, for example, in Rhode Island, and wished to preclude any further episodes by stating that “no state shall pass any law…. Impairing the obligation of contracts.”  (My own view is that Blaisdell is probably the best set of matched opinions in the canon.)  

Hughes most definitely did not defend the right of judges to impose their own or social views, but he did say that

It is no answer to say that this public need was not apprehended a century ago, or to insist that what the provision of the Constitution meant to the vision of that day it must mean to the vision of our time. If, by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning -- "We must never forget that it is a constitution we are expounding" (McCulloch v. Maryland, 4 Wheat. 316, 407) -- "a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." Id., p. 415. When we are dealing with the words of the Constitution, said this Court in Missouri v. Holland, 252 U.S. 416, 433, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. . . . The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago.

Nor is it helpful to attempt to draw a fine distinction between the intended meaning of the words of the Constitution  and their intended application. When we consider the contract clause and the decisions which have expounded it in harmony with the essential reserved power of the States to protect the security of their peoples, we find no warrant for the conclusion that the clause has been warped by these decisions from its proper significance, or that the founders of our Government would have interpreted the clause differently had they had occasion to assume that responsibility in the conditions of the later day. The vast body of law which has been developed was unknown to the fathers, but it is believed to have preserved the essential content and the spirit of the Constitution. With a growing recognition of public needs and the relation of individual right to public security, the court has sought to prevent the perversion of the clause through its use as an instrument to throttle the capacity of the States to protect their fundamental interests. This development is a growth from the seeds which the fathers planted….

The divide between Hughes's and Sutherland's opinions--the latter ends with the memorable comment that if a Constitution is not to be followed when it "pinches" as well as when it is comfortable, then there is really no point in professing the aim of limiting government)-- remains central to much contemporary debate about constitutional interpretation (or, if you wish, translation).  Modern conservatives continue to despise Blaisdell.  A book published several years ago by the Cato Institute elaborating the then-“dirty dozen” of worst cases in our history led off, as I recall, with Blaisdell.  Not surprisingly, that is not my own view, nor do I believe it is Lessig’s.  I do wonder, though, if the current majority of the United States Supreme Court would decide Blaisdell the same way were it a case of first impression today.

However, as already noted, the book is not simply an abstract guide to constitutional interpretation.  It is also a deep meditation on the undoubted phenomena of significant changes in economic realities (such as the development of a national and now international marketplace) and, just as importantly, social values (or what Lessig calls “meanings” regarding, for example, the meaning of “equality” relative to various minorities at different times in our complex history) and the degree to which our overall constitutional order looks to federal judges, especially, to offer authoritative insight into the reality of these changes and then to modify existing constitutional doctrines accordingly.  Jack, especially, addresses this aspect of Lessig’s argument.  Suffice it to say that I agree that there is much that links Lessig’s argument with the great “legal process” tradition identified with Henry Hart and Albert Sacks, especially inasmuch as that tradition relied on a process of thoughtful deliberation among legal elites to produce a consensus that could and would be accepted by society in general.  

One might think in this context of the plaintive plurality opinion in the Casey case on abortion, in which the three justices who signed it—Kennedy, Souter, and O’Connor—called on the country to accept the Court’s opinion in Roe (as in fact modified in Casey) as a definitive resolution.  (This is obviously in line with the earlier proclamation by the Court in Cooper v. Aaron, only in 1958, that it was the “ultimate interpreter” of the Constitution, which by definition required the acquiescence of all other purported such interpreters.)  One might, incidentally, place Mccluskey's own view of the Court within an intellectual framework where the Court was expected to be able to "read," as it were, public opinion or elite preferences and discern what political scientists would call "single-peaked preferences" that basically established the guidelines within which Courts might be free to act.  They could, for example, move a half-standard-deviation away from the peak, even as moving further, whether to push the zeitgeist along much faster than it was in fact moving or, contrarily, to try to stem what was becoming the clear direction of American constitutional development outside the courts.

But what is necessary for this vision of the Court “to work,” as an empirical matter?  The answer, Lessig seems to suggest, is widespread perception by the public that the judges are trained (and wise?) professionals whose judgments can generally be trusted, even if, as with all humans, they will on occasion make mistakes.  What this “translates” into, so to speak, is general acceptance of “the essentially nonpartisan character” of the Court, which he appears to believe has been more true than not “of its past” (p. 458).  (Obviously, many historians might dispute this description.)  What this requires, perhaps, is a linked reality of “[t]he justices [as] anonymous, or relatively so.  They do their work carefully and personally” (id.)  He well recognizes, even if he does not elaborate, that this description is very far from our present reality.  Almost no one believes that the Court is close to “nonpartisan.”  Any possibly remaining doubt on this point was surely eliminated by Mitch McConnell’s successful theft of a Supreme Court seat for the Republican Party (which also, of course, required eliminating the filibuster for Supreme Court nominations that removes any ability of the minority party to play a genuine role in confirming justices).  Nor do this recent decisions by five-justice conservative Republicans majorities in the partisan-gerrymandering and census cases offer the slightest reasons to embrace a "non-partisan" description of the law simply working itself pure, as suggested by the Legal Process tradition.
Donald Trump’s most brilliant political move in 2016 was to disclose the “list” of his prospective appointees, which was prepared, of course, by the hyper-partisan Leonard Leo in behalf of the Federalist Society and Heritage Foundation.  I anticipate that Democratic candidates, who have a remarkable willingness simply to ignore the judiciary in their campaigns (and, in some senses, even while holding office, as with President Obama), will be pressed to reveal their own “lists” regarding future appointments to the Court and, all importantly, whether they will support an expansion of the federal judiciary in order to counter the seizure of power by McConnell and his minions in the senate.  Perhaps Joe Biden will refuse, declaring that he will use his proclivity for bi-partisanship to work well with Republicans when appointing judges.  Should that be the case, though, I suspect that he will be rightly castigated for simply misunderstanding the modern Republican Party and the consequent necessity for Democrats to pay as much attention to judicial appointments as do Republicans. There is no evidence, for example, that Biden was able to dissuade Mitch McConnell even for ten seconds from his disdain from giving Merrick Gerland even the courtesy of a hearing.

Moreover, it is a reality that modern justices are scarcely “anonymous.”  I was astonished several  years ago to be told by a member of the German constitutional court that there had been no biographies of any members of that extremely important and interesting body.  They serve for ten years and then return to their ordinary lives, often as distinguished academics like Dieter Grimm.  Here, of course, we now have what can only be described as a cult surrounding Ruth Bader Ginsburg,.  She has been the subject of several biographies, a documentary, and a film focusing on her years at the Harvard Law School and then as a lawyer helping to construct the scaffolding of arguments, for the American Civil Liberties Union, that helped to persuade an all-male and decidedly patriarchal Supreme Court—William J. Brennan, for example, had to be dragged kicking and screaming to hire a female law clerk—to interpret the Fourteenth Amendment and, just as importantly, the Civil Rights Act of 1964 in ways that benefitted women (though part of Ginsburg’s brilliance was to frame several of these cases around male plaintiffs who could legitimately complain about gender discrimination).  But Antonin Scalia spent most of his career also creating a far more influential cult of personality by devoting his considerable energies to encouraging the formation of the Federalist Society and the creation of a genuine institutional and social home for legal conservatives who had, with some reason, felt isolated at many of the country’s leading law schools.  Louis Brownlow wrote many years ago that an effective federal bureaucracy depended on a “passion for anonymity” on the part of selfless civil servants. One might suggest that the only recent justice with such a “passion” was David Souter, who, not at all coincidentally, left the Court after serving what today we might describe as a “mere” twenty years when he was “only” 70.

Moreover, it Is unclear to what extent we can describe the justices as doing their work “personally” and, perhaps, even “carefully.”  It is hard to believe that we as a society really benefit from each Justice’s having four clerks.  Today’s limited docket of the Supreme Court means that each justice will have the task of preparing approximately eight majority opinions during the Term, as well as however many concurrences or dissents he or she might wish to issue.  Obviously justices have many other tasks besides considering cases and writing opinions, but perhaps they should spend less time, for example, judging moot court competitions at law schools (where they are inevitably fawned over by students—and their teachers—who treat Supreme Court justices as celebrities) and, instead, writing their own opinions.  At least as important in understanding modern legal culture,, though, is the willingness of justices themselves, let alone outside commentators, to castigate their colleagues in a way that is designed to deprive their opinions of any genuine respect. 

One of Justice Scalia’s primary activities on the Court was to engage in what can only be called “trash talk” that ridiculed his colleagues.  As he got older and more ornery, this became ever more prevalent.  So in Obergefell he simply accused his five colleagues in the majority as not “behaving like judges.”  If one takes this seriously, they should be impeached.  Chief Justice Roberts was no better, concluding his own Obergefell dissent by writing that the majority’s decision had “nothing to do with the Constitution.”  This is a bare-faced lie, at least inasmuch as one can relatively easy link the decision in that case with the earlier decision of the Court in Loving v Virginia striking down that state’s ban on inter-racial marriage.  I do not deny that one can distinguish the two or that a reasonable person could reject the majority’s decision.  Writing for the Sixth Circuit, Judge Jeffrey Sutton wrote a powerful opinion, based on classic imperatives of "judicial restraint" upholding Ohio’s ban on same-sex marriage.  The fact that I disagreed with it does not warrant my insulting him in the ways that Scalia (for whom Sutton clerked) regularly did his own colleagues.

Gerard Magliocca writes that “[w]hen lawyers look at the Supreme Court opinion, they are usually able to evaluate the quality of the work.  There is a consensus about the relevant source and methods of interpretation, most of the time.  To the extent that this is not the case, there is an internal logic to a method that lets us test the soundness of the conclusion.”  I find it hard to recognize this as a description of our current reality.  Legal academics, to take the “interpretive community” I am most familiar with, seem increasingly non-consensual about “relevant source[s] and methods of interpretation,” and we are certainly capable of exhibiting acrimony with regard to opinions, whether by justices or our colleagues, that we find literally incredible. The key word here is "consensus."  As already suggested, Mccluskey, writing in the 1950s, was certainly influenced by the "consensus school" of American history.  That approach began coming under relentless attack in the 1960s--McCloskey died in 1969--and is in shambles today.  Consequently, any theories of judicial review, and the nature of public and professional response to decisions of the Court, whatever their ostensible basis, must take into account the fact that, as Daniel Rodgers titled his 2003 book, we live in an "Age of Fracture."  (This is also a powerful implicit theme of Ken Kersch's vital book on conservative constitutionalism.)

Lessig emphasizes throughout his book the importance of “charity in interpretation,” by which we assume the best of our adversaries instead of denouncing them as unprincipled or incompetent.  There is obviously much that is attractive in this emphasis.  A society organized around what has been called a “hermeneutics of suspicion” cannot long endure.  Whether or not Auden was correct in saying “we must love one another or die,” it is surely the case, as Steve Griffin has emphasized in his own important work, that “we must trust one another” if we wish to maintain a functioning society.  So it is no small matter to reject Lessig’s vision of a world of “fidelity and constraint.”  The alternative may be not only a much greater embrace of Legal Realism than Lessig is comfortable with, but also, and more ominously, a further descent into polarization, mistrust, and dysfunctionality. 



"anyone taking an oath of loyalty to the Constitution should be indifferent to ascertaining its meaning and then, if feasible, conforming with that meaning."

It is virtually always feasible. Judges are remarkably insulated against retaliation for unpopular rulings. Under almost all circumstances, the worst they face is being overruled and criticized. Circumstances where they might fear physical retaliation, or even loss of income, are rare indeed.

My criticism of Lessig's work, is this idea conflicting "fidelities"; There is no conflict between fidelity to role and fidelity to law; A judge's role is fidelity to law, though the Heavens should fall. And that is all. The two fidelities collapse into one, they can never conflict.

The Constitution was written with an understanding that it was in a particular legal system and over time this is also how practice showed was the best approach. Alexander Hamilton noted this in the Federalist. For those who care about that sort of thing. Judges were selected that generally accepted this approach. That is "the law" so all this talk is a bit circular. Various things are factored in there, including when judging.

the latter ends with the memorable comment that if a Constitution is not to be followed when it "pinches" as well as when it is comfortable

No one really disputes this except for details. It's pablum on some level.

Reference was made to Justice Sutherland. He wrote the opinion for Village of Euclid v. Amber Reality (1926). It involved zoning. He noted in part:

Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall.

Commercial regulations that would have been understood as unconstitutional in 1800 very well might not be now given different conditions. What equality demands would change as well. And so on.

The same "law" on a basic level is being applied. The flexibility to apply it in ways dimly understood or expected is part of the charm. John Marshall, a ratifier, said this as well.

Village of Euclid v. Ambler Realty.

The OP includes this: "Lessig emphasizes throughout his book the importance of “charity in interpretation,” by which we assume the best of our adversaries instead of denouncing them as unprincipled or incompetent."

That's a useful approach though at some point it's pretty hard and perhaps unjustified. Assuming the best is not about blindness. But, it's a useful approach. An online comment once responded to someone else:

"But when you feel attacked you double down in these absurd ways, and respond to what you think were uncharitable readings of your posts with even more uncharitable and implausible readings, that couldn’t possibly be the intended ones unless your opponent was a total moron."

I find this happens too often. An "uncharitable reading" of a comment is made. The reading is far from a necessary reading. It at times is worse -- it is not really a fair reading at all. A tell is often inclusion of something like "so you are saying."

The quote is let *justice* be done, though the heavens fall. It would be myopic indeed to equate legal literalism with Justice. More importantly, the common law would find this maxim to be silly, dangerous and/or alien. It's always had at its heart pragmatism.

I know what the quote is, and disagree with the sentiment. If a judge doesn't think upholding the law results in justice, or something close enough to justice for government work, they need to find a new job.

Judges should uphold the law though the heavens fall, and if they can't, quit and let somebody else be a judge.

This comment has been removed by the author.

In most cases, judges need to interpret a law before they can apply it in a particular case. They (almost) never ignore a law once interpreted. And in the case of criminal laws, there's discretion in sentencing, parole terms, etc., as well as jury nullification. Legal systems which don't function like this are tyrannical.

Joe, by legalistic literalism I can point to several examples common in law schools. One, a law that says 'no vehicles allowed in the park.' Law was passed after complaints of recreational vehicle use in park. No exceptions are listed. Man falls sick in the park. If an ambulance goes into the park to save him, should police turn it away and/or arrest the rescue squad? Law says will must be administered as written to effect will of deceased at time of writing. Son named in will murders deceased. Should he get inheritance? The legal literalist says yes to both, an uncommonly silly position.

Another refutation of the idea animating legal literalism can be found at Mark 2:27.

"Judges should uphold the law though the heavens fall, and if they can't, quit and let somebody else be a judge."

A philosophy more suited to a rabid Jacobin than our ancient common law tradition.

You don't need to use hypotheticals as examples of legalistic literalism. In real life, all too often, a teenager is charged with distribution of child pornography, or forced to register as a sex offender, for sending another teenager an erotic selfie.

I deleted the comment referenced, but thanks.

No one here wants judges not to "uphold the law." There is some debate on what that means.


Henry-yes, that's a terrible and illustrative practice too, one that ignores the intent of the law for an overly-literal application of its text

Joe-yes, the whole 'uphold the law' line just begs the question of whether ignoring intent and result isn't a way of not upholding the law itself (most common law jurists would think using intent and result as interpretive tools is *how* one upholds the law; that's certainly the world the Founders were born and lived in).

Mista Whiskas, I'll add that I think that the prosecutors who go after sexting teenagers ought to be fired as unfit for their job. I'd also disbar them as morally unfit to practice law, but some might think that that's going too far.

"I'll add that I think that the prosecutors who go after sexting teenagers ought to be fired as unfit for their job. I'd also disbar them as morally unfit to practice law, but some might think that that's going too far."

I think that's fair; Prosecutorial discretion, if not taken to extremes, is a legitimate part of the law, properly exercised by the elected branches, the branches responsible for creating policy.

The problem is that a judge's job is keeping those elected branches from going off the rails, not deciding where the rails should have been placed.

I should add that I hardly think a judge is a bad person for thinking that the law is too awful to be upheld, or having ideas as to what it should be instead. They're just in the wrong job, they should run for public office, or organize a campaign to amend the Constitution, or something along that lines.

"should add that I hardly think a judge is a bad person for thinking that the law is too awful to be upheld, or having ideas as to what it should be instead."

I don't see this happening generally.

Judges generally "uphold the law" as they understand it to be, doing what judges do. There is a lot of discretion here and it is influenced by personal experience and values. It is human judging after all.

Various judges are very wrong on their understanding of what "the law" is, but that is not the same thing. Brett thinks the law means 'x' in various cases, that it is so obvious that 'y' is really a matter of "instead." Far from alone here.

Another matter though.

"If a judge doesn't think upholding the law results in justice, or something close enough to justice for government work, they need to find a new job."

Btw, here's the oath of office federal judges/justices take:

“I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”


Stop quoting the law to argue judges are upholding the law.


So, you're going to argue that, when 'justice' and the text of the law, including the Constitution, appear to a judge to conflict, he's under an oath bound obligation to toss the text of the law aside, and go with justice?

I would argue that, when a judge finds himself thinking that, he needs to go into a different line of work.

I wouldn't argue that myself.

I would argue that when there are various possible meanings to a law -- which tends to be the case in harder cases especially -- the one that advances the administration of justice is often the best path. The "text of the law" is not being "tossed aside."

The Constitution's Preamble helps clarify how to apply it: "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 States."

Establishing justice is in the text. So, again, the law is not being tossed. There is a dispute on what exactly the law means.

The problem I've always had with that sort of reasoning, is that as soon as you see ambiguity as licensing you to implement your own preferences, you see ambiguity everywhere. It's just a natural human tendency, and it totally takes over once you convince somebody they shouldn't fight it.

So, you shade your interpretation in the direction of what you see as justice. That gets accepted.

The next guy shades his interpretation a bit further, because the prior one having been accepted, he can get away with more, and because his starting point isn't the text, it's the last guy's ruling.

A few cycles of that, and you can get so far from any reasonable interpretation, that the difference between "interpretation" and "tossing the text of the law aside" gets pretty hard to see. It's a Drunkard's Walk away from the text.

So we've reached the point where Congress' authority to regulate commerce across certain political boundaries has become the power to regulate anything which hypothetically might affect such commerce to some slight degree, in aggregate, or ever has in any small fraction been part of such.

The power to regulate selling things across state lines has become the power to regulate backyard gardens, because if people grow veggies in their backyards, they might not buy them at a grocery store that in turn buys them across state lines.

The exceptions have swallowed the rule, because the judges didn't like the exceptions, and didn't feel bound by the rule.

All in the name of justice over text, of course.

Congressional power over commerce isn't a "justice" issue, so you're mixing different concepts in a way that simply confuses the issue. The commerce power involves a question of how Congress can exercise its granted power if the courts impose so many restrictions that it becomes impotent. And it's a question of "who gets to decide?". In the case of commerce, Congress (mostly) does. Issues of justice, in contrast, inherently involve the courts. They have to make decisions because they're the ones applying the law in particular cases. One is global, one is particular.

"So, you're going to argue that, when 'justice' and the text of the law, including the Constitution, appear to a judge to conflict, he's under an oath bound obligation to toss the text of the law aside, and go with justice?"

What does the oath (and the law proscribing it) say? Aren't justices supposed to uphold the law as written? Here it is plainly written that they are to "administer justice." I mean, should we invoke context, intent and the doctrine of absurdity to override the plain meaning of the law as written here ;)?

"as soon as you see ambiguity as licensing you to implement your own preferences"

See, no one I think holds that in the face of ambiguity (which is just a fact in a Constitution, btw) that you should or are free to 'implement your own preferences.' What they are arguing is that you can resolve the ambiguity using things like legislative intent, the doctrine of absurd results, and, yes, a sense of the 'justice' of it all, etc.. Now could these be 'colored' by one's own 'preferences?' Sure, but 1. the same can be said about any interpretive scheme (two 'originalists' looking at the 'objective' historical record can come to two different interpretations, and that can stem from 'preferences' which cause people to select, focus more on, weigh more heavily this piece of the 'objective' historical record than that and so on) 2. one can 'self police' one's preferences, good journalists, doctors, lawyers, teachers, police officers, etc., do this all the time, using professional standards, intellectual devices and discipline, humility, etc., to try to take into account, balance and negate their own 'preferences' from overly-biasing their conclusions.

"The power to regulate selling things across state lines has become the power to regulate backyard gardens, because if people grow veggies in their backyards, they might not buy them at a grocery store that in turn buys them across state lines. "

I've often wondered about why this seems so fantastical (at least after one gets past the superficial objections). I mean, does anyone not really grasp that every veggie I grow in my garden and use is not one I'm buying at the store? It's basic ECON 101 that these are linked. I don't see how you're supposed to uphold the law by granting Congress the power to regulate the latter without realizing the former touches upon and impacts it, which quite reasonably makes it fair game for the clause.

Brett still suffers from chronic Wickburn after all these years, perhaps fearful that his pulling his red radishes will be construed as affecting interstate commerce and thus regulated. Brett has long pulled his hair out over this. But there was a context to Wickburn that differs from Brett's red radishes. But when Brett was a mere laddie in northern Michigus pulling red radishes in competition with Mexican farm laborers, the problem was personal to Brett due to his small hands - if only those Mexican farm laborers didn't travel to near the border with Canada.

"All in the name of justice over text, of course."

No, in the name of a different understanding of the text.

The Supreme Court takes around seventy cases a term for full argument and a good many of these are matters that have split the circuits. There is a lot of ambiguity here. So, e.g., Justice Thomas in a majority opinion said in such and such a case the "best" way to understand a certain statute was 'x.' Such is the nature of the law.

But, one's distaste of lawyers won't mean one avoids ambiguity by simply avoiding being in the legal profession. Human experience is full with it. A company sets forth certain rules for employees. Each rule won't be crystal clear. A family member or friend gives instructions. A church* or club. Some overall principles would be helpful here. They won't be simply literal about everything. Being overly literal is at times a sign of a disability.

Anyway, "justice" to me has various meanings and it also pops up at times in regulation of commerce.


* Mr. W. cited the gospels. Jesus "upheld the law" by his understanding (at least as expressed by the evangelists) of what the Torah requires. He thought an overly literal understanding would in many cases not only be unjust but violate the law itself.

"The commerce power involves a question of how Congress can exercise its granted power if the courts impose so many restrictions that it becomes impotent."

The whole freaking point of limiting the powers of government is that it's sometimes supposed to be impotent.

The Commerce Clause isn't a "limitation" on Congressional power, it's a *grant* of Congressional power.

I think it's fair enough to say it's a grant, primarily, with an implied limitation. Government is empowered to do X but not Y. The problem is that Y is inextricably linked to X. Telling government it can do Y looks wrong, sure, but telling it can't does to (since Y and X are inextricably linked). Given that it's primarily a grant it's just not unreasonable to allow it to intrude into Y in the name of X...

Well, to the extent all grants necessarily include an implied limitation -- "that which is not granted is not granted" -- sure. But legally speaking, it's a grant just as much as a grant deed to your house is. The fact that the neighbor's house isn't included doesn't really make it less of a grant.

And of course all the grants of power in Art. I, Sec. 8 must be interpreted in conjunction with the N&P clause, which gets to your point about Econ 101.

Again, the problem with that reasoning, is that it rejects the notion that Congress wasn't granted Y. It. Just. Wasn't. Period.

The N&P clause is the "necessary" and "proper" clause, not the "convenient" and "eh, whatever" clause. And this is sophistry: Congress isn't regulating Y to influence X, it's just regulating Y to regulate Y.

The Gun Free School Zone act, to take an example, wasn't enacted to have some indirect effect on interstate commerce. It was enacted to regulate the possession of guns near schools. It was neither necessary, nor proper, to any legitimate end in the area of interstate commerce.

Fine, you don't like the idea of enumerated powers, don't like the fact that Congress wasn't granted some powers it might like to exercise. Doesn't matter, it still wasn't granted them.

If you read, "[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

And interpret it to mean, "[The Congress shall have power] to regulate [absolutely anything which has even the most tenuous or hypothetical connection to] Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

You have no business being a judge. You're either incompetent or dishonest.

To say that "Congress was granted X but not Y" assumes the conclusion. You first have to establish what is included within the grant before you can define what's outside of it. That leads to several issues:

1. First, who gets to decide what's included and what's not? For the most part of the last 80 years, the Court has said that Congress gets to decide. That's good reasoning: structurally, Congress is directly accountable to the people, who can vote for new Members if they don't like the result, while the Court is not equipped to make the kinds of decisions necessary to regulate or not particular aspects of the economy and has no direct accountability.

2. Second, it's consistent with the N&P clause -- also a grant of power, not a limitation.

3. Third, getting back to the point I made above, the Court has no role in regulating the economy. Your position is that it should insert itself into that role in the absence of any textual support. Yet when it comes to criminal law, your position is that the Court should carry out the textually literal words of a statute despite the fact that it's specifically charged with a role in that process.

"Congress isn't regulating Y to influence X, it's just regulating Y to regulate Y."

But that's just silly unless you really would like to deny that the corn I grow at home replaces the corn I would buy at the market. X just is Y in this instance.

"It was neither necessary, nor proper, to any legitimate end in the area of interstate commerce."

You don't think that it's at least reasonable to conclude, for example, that business (especially realty) in the Columbine school district area might have been hurt by the shooting there?

"The Gun Free School Zone act, to take an example, wasn't enacted to have some indirect effect on interstate commerce. It was enacted to regulate the possession of guns near schools."

How can you say that? I thought you didn't believe in such a thing as pre-textual motives tainting facially reasonable and neutral language. Congress had hearings and made findings and it's reasonable to assume guns around school would depress the local real estate and business market. Since you're committed to not looking into pre-texts you have to accept that, right?

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"But that's just silly unless you really would like to deny that the corn I grow at home replaces the corn I would buy at the market. X just is Y in this instance."

I'm not denying that. The weather influences interstate commerce. The phases of the Moon influence interstate commerce. EVERYTHING influences interstate commerce.

But it's not the power to regulate things that influence interstate commerce. It's the power to regulate that commerce itself.

I think it really does boil down to this: You don't like the idea that Congress was granted some powers, and deliberately NOT granted others, and so you're happy to 'interpret' the grant of one power as a grant of all powers.

No, it's the power to use all methods "necessary and proper" to regulate commerce among the several states. And lest you object to the N&P clause, note that the Federalist states specifically that that clause itself is there only out of an excess of caution, since the grant of any power includes within it all subsidiary power necessary to exercise it.

Brett obviously dwells overnight once again, this time for just under 12 hours, with feeble responses to comments exposing him. Both logic and words fail Brett. Brett's closing at 6:49 AM boils down to this: Brett is not happy with Congress which passes legislation that the president signs, or the latter's veto overridden, to enact laws as provided in the Constitution; and Brett is not happy with the federal judiciary in its interpretation/construction of such laws underthe Constitution. So it seems that Brett has reverted to his earlier anarcho libertarian mode.

By the Bybee [expletives deleted], can Brett identify the powers that he suggests the Framers DELIBERATELY did not grant to Congress in the Constitution in order to determine the meaning of Brett's closing paragraph?

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There can be a strong disagreement regarding the meaning of constitutional terms with the opinion "x" alleged meaning would result in the government having too much power (or too little) without the hyperbole that the person basically just wants anything goes.

People here have shown that they don't want to grant "all powers" to the federal government and at times Brett thinks they are wrong to withhold powers from said government. As I noted before, it is not that he merely thinks Trump is being treated selectively. In various cases, on the merits, he thinks certain powers are appropriately applied. Others think he is wrong in various instances and explained so. But, I don't think he wants to "grant all" powers even then.

It was and is argued that the N/P is at least somewhat redundant since a power includes what is necessary and proper to carry it out. Or, such would be the nature of things in practice. The term helps clarify what powers are granted and in some fashion will influence how the government applies them. In some fashion, an explicit broad grant of this nature is likely to help authorize more federal power, which was a basic end of the Constitution itself. It also somewhat limits it, e.g., if it is deemed that a grant of power is "improper" for various reasons including a violation of some right.

What that meant in specific cases was a battle since the beginning. An example is cited and there is such a debate. The federal government regulates commerce among the states, nations and Indian tribes. As part of said regulation, it determines that threats to education -- a continual core aspect of said commerce in various ways -- like guns near schools should be addressed. I guess under current doctrine, this might be a Second Amendment concern, but beyond that this is a reasonable judgment. It's a somewhat closer call than others & I wasn't too upset with U.S. v. Lopez. Congress could simply regulate guns that passed through interstate commerce or limit such laws to schools near major commerce hubs or something.

The Constitution sets up various means check Congress even here. The structural means in the minds of many are the strongest checks. There is a fear that such and such is a tiny matter of commerce but the power is plenary unless some improper means is used such as targeting a specific religion or discriminating against a certain group invalidly.

It is up to the legislature with a presidential veto and checks from people to avoid such excesses. Like declaring war on Canada or any number of things that might be deemed crazy. Artificial limits on broad language are as misguided here as when rights are involved. Courts are still there to help enforce limits, but it is not their job to enforce limits not there. And, in the nature of things, certain things like the nuances of necessary and proper commerce is given the other branches more than something like due process.

For a more detailed version of the points Joe and I made, see John Mikhail's latest post (now at the top of the home page).

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