Sunday, March 22, 2020

Proxy Voting and Remote Quorum Calls

Gerard N. Magliocca

Congress is frantically considering emergency legislation. The current rules of both the Senate and the House of Representatives, though, do not permit remote or proxy voting for matters on the floor. This should be changed now. Some members of Congress are in self-quarantine. More will be within the week. How can they vote? How can their constituents be represented? Each House of Congress should modify its rules to permit written proxies that can be given to the presiding officer (perhaps in consultation with the party leadership of each party).

The Constitution presents another problem. Article I, Section 5 states that "a Majority of each [House] shall constitute a Quorum to do Business." Suppose more than a majority are in self-quarantine. Does that mean business is suspended until further notice? Does a Quorum require a majority to be physically present in the chamber at some point during legislative business? I think not, even if that was how the Framers (and the British Parliament) understood that idea.

For one thing, the precedents on quorum calls are (shall we say) flexible. The House said at a certain point that members present who refused to answer the quorum call could be counted. Likewise, the 39th Congress refused to count as present Southern members who were there and said they were. I would argue that these decisions are capacious enough to count as present someone talking through a laptop or a phone After all, the Constitution does not specify what "a Quorum" means. Moreover, the relevant language comes right after the statement that Congress has the power to set its internal rules. The same section also says that a number smaller than a majority in each House may act "to compel the attendance of absent members." You can compel someone to attend via Zoom, under penalty if they do not when they can.

In short, the rules on proxy voting and quorum calls should be modified for the present crisis. The Constitution can adapt to this crisis of human affairs.


It seems to me that being part of a quorum means "able to participate in the debate and voting" while subject to the rules. I see no reason why electronic participation shouldn't count.

"I would argue that these decisions are enough to count as present someone talking through a laptop or a phone"

It seems to me at some point you have to admit that some decisions are just abusive, and shouldn't be taken as precedent for acceptable behavior. Counting people who are present, but just refusing to respond? That's fine, they WERE there. Refusing to count as present members who are physically present and responding?

That's just a form of fraud.

That said, I'm with Mark on this: As long as they're able to participate in the debate and vote, that's good enough to count for quorum purposes. Their physical presence is not required so long as they're interacting with the rest of the members.

OTOH, screw proxies, and I mean that sincerely. The leadership have contrived enough ways already to concentrate the power of the general membership into their own hands, we don't need to give them new tools to accomplish that with.

Likewise, the 39th Congress refused to count as present Southern members who were there and said they were.

Is this not when they refused to seat the members at all? The power to do so can be found. It wasn't a matter of seated members not being counted. The other examples also doesn't really answer the issue except the catchall that each House can pass rules. If "present" means physically present is still unclear.

Proxy voting is currently allowed in committees, at least in the Senate. A quorum is also assumed unless there is a point of order.

Mark's comment seems attractive on some level. Words like "attend" or even "congress" has over the years been understood to mean actually being physically present. There is some added something about doing that as compared to being on speakerphone or even Skype. The Senate even individually calls roll (Mr. Akaka .. "aye")

A quick look suggests that there were some refusals under state law to count virtual involvement as part of the quorum to do business but repeated references to 'sunshine' laws might complicate it. OTOH, I found a reference in the Utah legislature:

"A committee member participating from a remote location is included in calculating a quorum and may vote."

I think as a matter of general rule, it is appropriate to require members to be physically present, but as a constitutional demand, especially is special circumstances, quorum and votes can be by proxy and electronic means.

Quorum rules are designated by statute for judges, btw, and judges have "shown up" in proceedings by electronic means.

Bircher Brett probably thinks black UN helicopters will intercept and change remote votes. That's how he and his ilk roll.

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To address the first point specifically ...

"Each House shall be the judge of the elections, returns and qualifications of its own members"

Likewise, the Guarantee Clause provides the Congress power to determine a state lacks a republican form of government. This was also a reason offered for not seating members until certain things occurred.

Anyway, proxies are again used now in a limited form. It can be by rule be done by limited means, such as Sen. Rand Paul being required to provide an affidavit to authorize specific acts. It need not give leadership special power.


I think you misread Brett's comment. He endorses remote voting and debate participation by electronic means, and objects to proxies.

Both of these points make sense to me.

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Hell of issue indeed. Just worth to note:

If via remote method, then , one will have to use " digital signature " or alike for authenticity. I quote from Wikipedia:

" A digital signature is a mathematical scheme for verifying the authenticity of digital messages or documents. A valid digital signature, where the prerequisites are satisfied, gives a recipient very strong reason to believe that the message was created by a known sender (authentication), and that the message was not altered in transit (integrity)."


Without which, doesn't make sense simply.

Also, one can understand the impeachment clause, as bounding in this regard. Yet, can be interpreted as rule, or exception, I quote relevant part :

Article I - The Legislative Branch

Section 3

" ......And no Person shall be convicted without the Concurrence of two thirds of the Members present."

So, it is written " Members present ". Yet, one may argue, that only for impeaching, but, also, that it is the rule generally speaking.



byomtov, it was just a joke about Bircher Brett's general krazy konspiracy proklivities.

On the substantive question, it would be interesting to apply the kind of originalist logic that Scalia did re the confrontation clause regarding using video presence to protect victims to this question...

I've just reread his dissent in Maryland v. Craig. It seems pretty dependent on the meaning of "confrontation", which, as a historical matter, Scalia seems to have gotten right. The very purpose of the confrontation clause is that the witness may be reluctant to falsely accuse somebody to their face, which requires that they actually be something like face to face with the person they'd accuse. (In the context here, to refer to the hostile witness as a 'victim' is to presume the very guilt the trial exists to determine. The term "victim" should be reserved for after there is a guilty verdict. Prior to that they are merely an accuser.)

So, what is the purpose of the quorum requirement? It is to prevent a small fraction of the legislature from getting together and performing actions with the force of the legislature as a whole, which the legislature as a whole may not agree with. A handful of members showing up in chamber without warning, 'enacting' a bill that didn't actually have support of a majority of the whole legislature, and sending it to the President for signature, for instance.

It would appear to me that telepresence adequately achieves this goal. While proxies defeat it.

While telepresence is fairly dubious in regards to the goal of the confrontation clause.

Bircher Brett channels his inner Breyer (in looking to 'function' or purpose).

"While proxies defeat it."

That's certainly not obvious. If I'm aware of the vote and what it is and authorize another to vote exactly how I would have for me the legislature can't be said to have done something 'I don't agree with' [without taking my vote into account, which needs to be added to this to make sense, legislatures make decisions that those voting in the minority don't agree with all the time]).


"Senate fails to pass coronavirus economic rescue package"

Here ( and links therein):

I think Breyer (even if he who shall not be named badmouthed him in a past thread) summarized how to interpret the Constitution well there in his writings though the other B's application is somewhat inconsistent in practice.

Again, a proxy can be one that is done with clear restrictions, not just giving someone carte blanche to vote in their name. If done in that fashion, the quorum principle is not violated.

Sen. Klobuchar announced her husband is infected and needed medical treatment. It seems just a matter of time that a Democrat self-quarantines. Sen. Graham also supports changing the rules here per a tweet I just saw.

Graham is a repeat offender liar. I wouldn't take his statement as reflecting his actual position until he backs it up with a meaningful vote. Words are wind.

Republicans are at risk of losing a working majority. There's that.


"Graham is a repeat offender liar. I wouldn't take his statement as reflecting his actual position until he backs it up with a meaningful vote. Words are wind."

Nice when we can agree on something. Even when Graham is doing something I like, I know he's a treacherous snake. I would love to be rid of him.

Jaime Harrison appreciates Brett's endorsement. (ha ha)

"That's certainly not obvious."

I agree that, in principle, proxies could be implemented in such a way as to not transfer power to the leadership. "Count me as voting "Aye" on the measure, if and only if it comes up for a vote without any additional amendments." Though doing so would not be easy given the full range of parliamentary maneuvers a member could respond to if present, but not effectively condition a proxy to account for.

I don't expect them to be implemented in such a way, if they're found permissible.

We have an idea of how they might work since proxies are allowed now in the U.S. Senate in committees. I have heard reference to such and such "by proxy."

Current rule: "proxies may not be voted when the absent committee member has not been informed of the matter on which he is being recorded and has not affirmatively requested that he be so recorded."

I expect a similar "affirmative request" rule could be applied for acts on the floor and a senator could only do so with Brett's proviso as need be. Time will tell.

I think best practices would be to follow something like the Senate committee rule Joe helpfully provides. But I actually still don't think a less restrictive rule worries me much on any important matter of principle. If a representative trusts and consents to the leadership using their vote however the leadership wants, then so what? The representative makes the choice of their own free will and will have to be accountable to their constituents back home for the vote.

I'm somewhat amused by your assumption that the choice wouldn't be coerced in any way.

Well, of course Bircher Brett is amused, or better put, *suspicious,* because he is by nature and fundamentally paranoid and conspiratorial in his basic world view. In the same way he is suspicious about things like mail-in votes because he imagines a world where they're readily corrupted his knee jerk worldview applied to proxies is that they will be corrupted.

How will they be corrupted? By the leadership promising benefits and punishments to people who don't submit their proxies the way they want? That's no different than how politics is performed mostly 'in presence' is (they called leadership 'whips' well before any suggestion of proxies). Any representative giving their proxy to leadership is and would be under no significantly different pressure than the one that is present, and they would still be just as accountable for how leadership uses that proxy vote (it will be recorded for all to see).

My non-suspicion about proxy voting actually comes from thinking about and seeing their long use in the corporate world.

So, we shouldn't just rely on movies like "The Hudsucker Proxy"?

In the abstract, some change to accommodate voting by quarantined senators would make sense. At a moment when five Republican and no Democratic Senators are quarantined, hell no.


you know, for kids.


If a representative trusts and consents to the leadership using their vote however the leadership wants, then so what? The representative makes the choice of their own free will and will have to be accountable to their constituents back home for the vote.

Well, OK. But who is going to do that? Can you see the next campaign? "We want our Senator, not Mitch McConnell (or Charles Schumer) to decide what's in our interest," etc.

In fact, a somewhat loose proxy seems like a recipe for disaster. Imagine the proxy-giver unhappy with the the vote. Imagine the opposing party claiming that the amendments were so broad that the proxy did not authorize casting the vote, and so on.

Electronic voting seems to me to be adequate to deal with the problems Gerald describes. Those in quarantine can participate and if some are too ill then maybe they are too ill to follow the twists and turns also. We've had some pretty sick Senators before.

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There could be a political price to be paid for giving your vote as a proxy, in fact that's part of my point, that there's a strong incentive there for the representative not to give away their proxy in a way that could anger their constituents.

I agree that in best practice I'd prefer electronic attendance/voting. I'm just saying I'm not as paranoid about potential misuse of proxy voting.

I'd like to talk a bit more about my point about the Scalia reasoning in the Confrontation Clause case, both that case and here are about a presence being demanded by the text and whether or not a type of presence unforeseen by the Ratifiers (electronic) suffices.

Now, one can see someone saying that in both cases the electronic presence isn't sufficient because that couldn't have been what the Ratifiers meant when they were requiring presence (this is akin to Jack Balkin's 'original intent of expectations' [iirc the term and theory] which he criticizes-but which conservatives often engage in [the 14th due process liberty clause *couldn't* grant SSM because the ratifiers would never have expected that application of the text/principle]).

And I can see someone saying that in both cases it should be allowed (after all, the text just sets a principle, and if technology allows that principle to be met in a different yet functionally same way in essence, then that's fine).

I'm more interested in the cases, like Bircher Brett's, where he splits the difference here.

Bircher Brett seemed to reason thusly: let's look at the *value,* *principle* or *purpose* the ratifiers wanted protected by such language, and then ask if allowing the new technological approach protected or respected the value, principle or purpose the ratifiers wanted protected.

My questions to the commentariat (serious people only of course), is:

1. Do you think I got Bircher Brett's reasoning here correct?
2. Do you think it's more or less a version of the first type of reasoning or the second type I mention, just applied differently to get a pre-determined result (in other words, it has the problems of originalism in general)?
3. If not (or even if so) 2, then do you think this approach is 'correct,' that is the most reasonable way to think about this issue?
4. Last, what does this question and approach mean, if anything, for other areas in the Constitution where technology has introduced possible 'new forms' of things which it could be argued might fall under constitutional language protecting it (for example, 'stun guns' or 'assault rifles' or 'machine guns' re the 2nd Amendment; violent video games or internet speech re the 1st, etc.,).


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I do not find it helpful to be limited to what the ratifiers valued etc. as compared to how the provisions have been understood by a continual process of living them.

But using it in such open-ended ways (such as equal protection being against class discrimination or something) is a limited restraint and it can be easily help self-determined results. The result seems reasonable to the person and in some fashion it is a reasonable reading of original understanding of at least some.

Still, the general Breyeresque approach of using purposes etc. is helpful if the text is not clear. Scalia would say a screen to protect a child witness violates the text too. "Confront" means "face-to-face." Purposes allows more discretion and less absolute rules. The law does tend to have exceptions.

What it means for the other things is an open question. What purposes? What values? How are they applied in practice? Scalia wrote an opinion widely protecting the right to sell violent video games. Restraints on sales to twelve year olds of games where you can kill prostitutes etc. would likely be something many in 1800 thought the "purposes" etc. of free speech etc. allowed.

"I do not find it helpful to be limited to what the ratifiers valued etc. as compared to how the provisions have been understood by a continual process of living them"

That is, of course, perfectly understandable, if you purpose is to subvert the Constitution, and "the continual process of living them" is just the ways in which you've succeeded in suborning judges to lie about what it means. (It's not like living constitutionalists have a track record of just rolling over and giving up when public opinion goes in directions they don't like; Only change in directions they approve of is somehow relevant.)

If, on the other hand, you wish it to remain an actual constitution, which is to say a fixed body of law which can only change by formal amendment, you will have a great deal of interest in what the people who wrote and ratified a part of it understood themselves to be enacting.

I have repeatedly showed how "the people who wrote and ratified" thought they were enacting broad things for which specifics would be clarified over time.

Mark Field has a field day showing that even on the level of appeals to original understanding, Brett et. al. confuses things.

Italics or not, the actual Constitution is applied by using the text as it is understood today, a result of applying it case by case by various actors. Those who wrote and ratified knew about this sort of thing.

Originalism provides room for a lot of "lying" etc. for those inclined to do so since there is so much room to pick and choose. Since "the law is just forcing me to do it" makes the people sound they are using less discretion, in fact, it might be easier (I'm right ... I'm using italics) to abuse power here as compared to those more wary, who more carefully use judicial power.

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In the case of Joe's examples, Eric Segall has an entire book showing that Brett's wrong on originalist grounds.

And his is not the only one.

"I do not find it helpful to be limited to what the ratifiers valued etc. as compared to how the provisions have been understood by a continual process of living them"

Take the specific issues at hand -- quorum rules. What exactly does it get me to try to parse how the ratifiers understood that as compared to the lived experience over the 230+ years since then? I can do that -- I can try to determine what the ratifiers valued there though as explained sounds more like what it is assumed they would.

Using our current understandings of what that would be. Seems more useful, to get an accurate workable system, to look at the text as understood by experience. Often tend to get to the same general place. Where is the "lying" or as I prefer to phrase it (since it expresses their tone) "making shit up" really?

I own the book Mark references. It is pretty good.

"That is, of course, perfectly understandable, if you purpose is to subvert the Constitution"

Bircher Brett's knee jerk instinct is to look for 'bad guys' 'subverting' the Constitution where there's disagreement (don't worry, a week, or even a day or hour later if the party line is about 'demonizing' those that disagree with you he'll parrot it with no cognitive dissonance). But I think he misses that someone could say he's done the exact same thing he accuses of with his present reading of the quorum clause. Note, Bircher Brett won't get the nuance that I'm not saying his interpretation there is incorrect or unreasonable, I'm noting that since it follows an approach with at least passing relation to what Scalia condemns in his Craig opinion, a Bircher Brett doppelganger could (and if it were seen as in the benefit of the GOP in a current partisan fight likely would) accuse Bircher Brett of exactly this.

The difference between me and Bircher Brett is I think even if his interpretation is not the most plausible I wouldn't immediately accuse him of 'subverting the Constitution.'

"I have repeatedly showed how "the people who wrote and ratified" thought they were enacting broad things for which specifics would be clarified over time. "

Agreed. For example, when you write that something hinges on whether something is 'reasonable' it's improbable at best to think that should be interpreted as 'what people in 1791 would have thought reasonable.' Using that metric for a 2020 situation would, well, be *unreasonable* (what makes something 'reasonable' is going to be a consideration of the factors surrounding a certain fact specific situation).

Another favorite example of mine is 'cruel and unusual punishment.' If one took the position that some conservatives take, like Thomas, that this only bars punishments that the Founding generation would have understood to be cruel and unusual, then how would you change the text to amend it to mean that punishments that we now think are cruel and unusual are barred? Why the language shouldn't change a bit (that is, judging by Thomas' logic passing an amendment with the *exact same text* in 2020 would suddenly change what is barred and what is not; to quote Thomas himself this is an uncommonly silly position)! A much less silly reading would be that we today should judge whether a punishment is 'cruel and unusual,' that's the best way to be faithful to the *text* (you also have the plus of not having to mindread a generation hundreds of years ago, and you don't have to pretend like the Founders were unable to make a list of punishments *they* considered cruel and unusual if that's what they wanted to convey).

Another example, in the other direction: the 7th Amendment. If someone argued 'while I know the text specifically says $20, the *function* or *purpose* of the language was to allow for many suits being eligible while making sure some number would not as trivial, therefore, given inflation and the change in even what a dollar represents between ratification and now, I would read the Amendment to bar cases involving *over* $20 dollars and instead use a figure that serves that purpose (or is essentially 20 dollars indexed or something),' I would not say 'that man must want to subvert the Constitution!' I'd say he's following a train of thought a like like Bircher Brett did about quorum presence.

Justice Sutherland, one of the "Four Horseman" conservatives during the 1930s, said this in the Euclid v. Ambler case:

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.

It is a nice quote given the source but the basic principle is vanilla.

Interesting quote joe, especially as you say given the source. I'd note that 'arbitrary and oppressive' are two words that don't exist in the text of the US Constitution at all.

"while I know the text specifically says $20"

20 is a NUMBER. There's damned little room for interpreting a number.

Which is not the same as zero room, because it's twenty of a specific thing. You could certainly inquire as to what a "dollar" was at the time. You would find that a "dollar" was a widely used silver coin of Spanish origin, (AKA, "a piece of eight") that the US adopted as its currency because it was already in wide use. As did many countries. By law, in the US, a "dollar" was a coin of 371.25 grains of pure silver.

So, your room for interpretation, given the absolute mandate that it be twenty dollars, is to decide what twenty dollars is today. Not the actual coin, because it's not in circulation anymore. But the equivalent weight in silver, or the market value of that weight of silver, would be a reasonable interpretation. That would be, in today's fiat currency, at this moment, about $223.

So, you could translate that $20 into $223 at the moment, and be faithful to the text. OTOH, if you tossed all these considerations aside, and decided that $2000 was a better number, yes, you would be subverting the Constitution. Because you'd just be pulling that $2000 out of your ass.

The basic point is not engaged with since there is some dispute over a single example.

I'm not going to rely on the $20 provision (I'll touch upon it below). Where is he pulling the other stuff out of his ass? This business of latching on to a tree and missing the forest isn't very useful.

Take "reasonable." The battle is not looking it up in 18th Century dictionaries or general understandings behind the 4A, which on some level, is not really even very controversial. It is applying it today to specific situations using standard legal principles including the lessons of time [precedent].

And, showing the irony of the whole situation, the ratifiers would understand that the word would apply as a result of application over time. Years ago, e.g., I cited the Federalist Papers on that regarding how words are interpreted. I think some op-eds are of limited net value but since people appeal to that sort of thing, fine.

Back to $20. The fact there is "room" for interpretation even for something as concrete as a number underlines more elastic terms like "reasonable" will have room for interpretation, including as we see how it acts in the course of experience. And, what is the text?

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The "right of trial by jury" was never preserved in all cases even if the value was over $20. The floor of diversity jurisdiction, e.g., was not put in 1791 at $20. This doesn't mean the people in Congress at the time, including some involved in the framing and ratification, were doing something unconstitutional necessarily either.

Then, you go into what one "could" do to determine exactly what "$20" means. Again, for a NUMBER (caps; I'm right!). Looking it up again, the exact original understanding of the provision (a late add-on) is unclear. Trying to apply it today, various legal interpretative approaches other than that is more helpful.

Not to "lie." To accurately and productively apply the terms of the law. There is much dispute over that but the Constitution provides people who fight that out today, using various means in place. The people generally honestly do so, even if they often are wrong. Some use Brett-like terms for Roberts et. al. too. I'm prefer not to do that, even when I think they are wrong on the merits.

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"20 is a NUMBER"

And a quorum is, as understood at the time, literally physical presence.

Bircher Brett doesn't get it: if you're going to get away with approving 'electronic presence,' which clearly wasn't what the Founders considered when they wrote the quorum requirement, by considering the 'function' and finding a modern analogue then that's not different than, say, using the inflation adjusted exact value for today re what 20 dollars was then.

Of course 'pulling a number our of one's [butt]' (it's always interesting how readily the two representatives of the 'party of family values' curse [Trump included], boy those evangelicals sold their entire souls, didn't they?]). But virtually no serious liberal person suggests doing that. What is suggested, and what's *not* 'subversion' is when someone *tries to adhere to the limiting principle (function) the text puts forward as to be protected or preserved in a modern context* and *comes up with a different, but reasonable answer than Bircher Brett.* I mean, he's a Manichean paranoid conspiracy theorist, so of course he moves on step one of disagreement to the most extreme, least charitable interpretation of anyone's disagreeing view. And he lacks so much self-awareness that he really can't get that a doppleganger Bircher could levy the same hyperbolic charge against him for, say, his quorum interpretation (and if it were to the GOP advantage to do so they surely would).

These people don't understand the idea of neutral principles and reasonable disagreement. It's all partisan warfare of the moment.

Hey, Brett agreed with me on the quorum issue and now you're trying to talk him out of that. :)

I was looking at an old thread and Mark cited he who shall not be named to paraphrase a basic 14A point. I then saw a later comment where Mark cursed at him. So, variable.

I'm sure it was in a good cause both times.

Well, you also at one point alleged nothing he said should be taken seriously.

But, sure.

I got that one right.

" then that's not different than, say, using the inflation adjusted exact value for today re what 20 dollars was then."

And that is exactly what I did in arriving at $223. Determined that 20 "dollars" was 20 of a specific silver coin, (Whose value was just the silver content. Coins were nothing more than convenient premeasured precious metal.) and looked at the spot price for that amount of silver as of today.

20 "dollars" is 20 coins of 371.25 grains of pure silver, that's what it means.

Has the general rise in per capita income rendered this a seriously small amount of money? Sure. But that's just to say that the Constitution mandates a right to jury trials where a seriously small amount of money is at stake. If the Constitution mandates something which is now foolish, it just does.

That's the key point here, the central dispute: Does the Constitution just mean what it says, even if it says something bad, or are we going to assert that it means something good even if we have to toss what it actually says aside?

I say, the latter approach amounts to not having a constitution anymore. If the Constitution means something bad, change what it says.

"Has the general rise in per capita income rendered this a seriously small amount of money? Sure. But that's just to say that the Constitution mandates a right to jury trials where a seriously small amount of money is at stake."

No, it's entirely reasonable to say that what the Constitution mandated was that certain classes of cases be eligible for the right but some not be. And since the literal, non-indexed number of 20 dollars is *ridiculously* low right now to stick to the literal reading could very reasonably be argued to be *thwarting* what the purpose or function of the text was when ratified (it was meant to keep x amount of cases in and Y out, but now there is virtually no Y so it keeps nothing out).

If a person insists on the literal only-at-the-time meaning and understanding of a term then Bircher Brett's interpretation of the quorum clause is assailable (and to a Manichean conspiracy extremists it's assailable as 'subverting the Constitution!'), because quorum could only have been conceived by the Ratifiers as physical presence. To get past this and allow non-physical presence you have to bypass the literal sense in which the word or concept was understood when ratified and ask: what was the function or purpose this was trying to serve? It's reasonable to say 'that the person be there to be able to do X, be aware of Y, etc., and since that's possible electronically now, that should suffice.' But likewise, it's reasonable to say 'what was that 20 dollar limit supposed to do? It was to keep a certain class of cases in as warranting protection and a certain class out as too trivial to burden the courts and undercut the right, given that 20 dollars now in every sense ain't what it used to be then, some kind of indexed amount suffice.'

"I then saw a later comment where Mark cursed at him."

Yeah, well Mark's not representing the 'party of family values' that clutches pearls at such behavior so regularly (at least when non-members of the party do it, that is).

"No, it's entirely reasonable to say that what the Constitution mandated was that certain classes of cases be eligible for the right but some not be."

You're just playing games with levels of abstraction. Your wife sends you to the store to buy a dozen eggs. You arrive at the store, and don't want eggs. So you reason that eggs are a source of animal protein, and so she really sent you to buy some animal protein, and you come back with a pound of hamburger.

Bzzt! You were sent to get eggs. All the sophistry in the world can't change that.

The Constitution specifies exactly what classes are to be eligible for the right, and those are where a value of $20 or more is at stake. The only thing you need to do, are even authorized to do, is to determine if $20 or more is at stake. Nothing else.

Does the Constitution just mean what it says, even if it says something bad, or are we going to assert that it means something good even if we have to toss what it actually says aside?

Mr. W. offered reasonable analysis of the meaning of the provision, including using a functional approach. Not "tossing aside" uncomfortable provisions.

I say, the latter approach amounts to not having a constitution anymore. If the Constitution means something bad, change what it says.

I say you keep on putting forth a strawman. That isn't the issue at hand. It is not that "reasonable" means something bad, so change it. It is that the very word has flexibility that factors various criteria, including changing facts on the ground. And, ironically, the ratifiers knew this. This is why, e.g., I keep on quoting James Madison or John Marshall. JAMES MADISON OR JOHN MARSHALL. Maybe, James Madison or John Marshall. And other such people. See the quote by Justice Sutherland, a conservative, on constitutional protection of property rights particularly.

Mr. W. is really just helping Brett play games by trying, diligently to be sure, to work within a single provision to show how flexible it is. But, even if it is less so, it still has some flexibility. If a NUMBER (number) has that, a range of other things such as "reasonable" or "equal protection" or whatnot has it ever more.

Bircher Brett is terrible at analogies, as most Bircher types are.

The more apt analogy would be: my wife sends me to the store to get a dozen large eggs because she needs a dozen large eggs to bake a cake. When I get the store I'm informed that large eggs are no longer produced and sold, instead they have a dozen and two dozens of small eggs which are exactly half the size of the small eggs my wife wanted to use. So I get the two dozen large eggs.

This is no way 'subverted' what my wife wanted. In fact, if I got a dozen large eggs it would have subverted that.

In other words, 20 dollars ain't what it was in 1791. It's likely silly to stick with the exact number now given that, but my point is even easier to make: it's at the least reasonable and even stronger it's not 'subverting the Constitution' to argue so. That's just silly extremist hyperbole posing as thought.

The specific issue here again is quorum rules and what something like being "present" means. As Mr. W. noted, the ratifiers (to the degree they thought about such things) did not consider the possibility of people virtually being able to be present.

If we are going to view the purposes of the provision by a level of abstraction that physical presence is not necessary -- I think it is fair to say that people in 1787 very well like myself considered physical presence as important to the provision! -- that translates into other avenues too.

We have been down this road, obviously. Take same sex marriage. Some think it is absurd since unlike interracial marriage [which a minority of ratifiers thought necessarily consistent to the 14A, which many thought didn't even apply to social rights for which marriage was so deemed], the ratifiers did not consider that.

But, if we look their purposes at a level of generality (class discrimination), it is quite possible to apply it in that fashion, especially as experience, actual state laws and practice, changes in medical understandings, etc. changed what "arbitrary" or "reasonable" classifications by sex and sexual orientation entailed changed.

Some people alive in 1868 in fact would have been alive in the early 20th Century in which movement in the area of sexual orientation changed significantly. And, back to the well, many ratifiers of the 14A expected the terms of the amendment would develop over time, the fifth article specifically giving Congress power to enforce per the most up to date needs. No "lying" etc. here. Just application of the Constitution.

Yes, joe, well put. But, again, my point is not just about constitutional interpretation, it's about the asymettric approach and attitude between conservatives or our Birchers and others. My point isn't necessarily that my hypothetical reading of the 7th is *correct.* It's that it is 1. at least reasonable and 2. at the very, very, very, very, very least *not* warranting to take the extremist position that it is 'subverting the Constitution.' See, part of the 'every accusation is a confession' thing is that if you are an extremist you see everyone that disagrees with you as extremists all the time. And Bircher Brett is true to that form: he *led* with 'well, that's subverting the Constitution' (as well as 'lying' or 'pulling it [the theory] out of one's [butt]). These are not serious men having an honest discussion with us. They are propagandists and/or extremists, ready to jump, nay take a running leap, into the worst, least charitable view of anyone who disagrees with them in the slightest. And, in an amazing turn of lack of self-awareness Bircher Brett in particular often unfurls and reads the GOP talking point (when it's being promoted in those circles) about liberals demonizing those they disagree with every now and then...I mean, wow.

To illustrate, one can easily imagine a theory where suggestion of an actual subversion of the Constitution on this matter might be posited. If someone said 'hey, this Amendment is a pain because two many people of the type I like get hauled into jury trials over things they shouldn't, or I hate this Amendment because it favors trial lawyers who have too much power, so we should just pick a number that would make, say, the lowest claim 30% of all brought civil procedures will not be eligible for the right.' That's a person who clearly could care less about what that text is trying to achieve.

But what we're talking about is light years from that. *Certainly* a person could posit '1. the purpose of this text was to allow a certain % of cases to get this right and also have some cases be too trivial to invoke it and 2. 20 dollars now ain't what it used to be then so 3. we should index it to serve the same function even if the amount in 'today's dollars' is not exactly 20' and not only not be unreasonable but *certainly* not be suspected of subversion of our most treasured document. This says a lot about Brett and Birchers in general: they are paranoid extremists who take a knee jerk immediate worst case view of those who even quite reasonably disagree with them on these types of things and then with no social grace or caution launch into the worst hyperbole/slander of that person and their motives.

I suspect it partly has to do with not wanting to think of these matters as tough, hard ones with many reasonable, albeit perhaps only one 'best,' reading. Well, that and partisan incoherence....

I think part of the problem here, and it shows up in various ideological cases, is that a position seems fairly obvious to someone & if someone has another position, they must either be idiots or frauds. Perhaps, it is a matter of respect that #2 is picked.


" so 3. we should index it to serve the same function even if the amount in 'today's dollars' is not exactly 20'"

You seem to be missing something: My $223 isn't exactly 20 in today's "dollars". It's exactly 20 in what "dollars" meant when the Constitution was adopted.

Now, maybe the Constitution should have been written so that the relevant clause read something like, "In all cases where a significant amount of money was at stake". But it wasn't. It actually specified the relevant amount of money.

We're not doing constitutional interpretation any more if we ignore that they gave a specified amount. However we understand that amount today, it has to be 20 of something that could reasonably be described as a "dollar", or else you're just making it up as you go along.

Still focusing on a tree.

Mr. W. might be trying too hard with the tree, but it doesn't change all the rest, including what this whole thread was originally about.

Still not seeing how my approach is "lying" in general. Nor his really, even if he is trying too hard with this one thing. The 7A wasn't his only example.

Good grief, he still, after all this, can't 1. see that the hypothetical I put forward is hardly 'making it up,' it would be tied to a quite neutrally-accepted-in-the-field calculation (adjusting for inflation)2. that even if his 'weighing the silver in the dollars back then and valuing them according to today' is a *better* measure it's not much different *in principle* to his approach 3. that *both* approaches are not much different than his approach in 'modernizing' what a 'quorum' is. From all these small, reasonable differences he still gets 'making it up,' 'subverting the Constitution' and other hyperbolic language of disagreement. It really shows you how extreme Bircher Brett is, not so much in his ideological positions and reasoning (though he's that too), but in his basic personality, worldview and/or social self. This poor man sees the most extreme danger , distinctions and motives in all those who disagree with his conclusions. It really says something disturbing that this is essentially what the conservative base is now.

"The 7A wasn't his only example. "

He went with the low hanging fruit in his opinion. And look at the response. Wow, huh?

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