The Text Is All We Have

Today’s story about the Justice Department obtaining two months’ worth of telephone records from the Associated Press, apparently without a warrant and without any sort of prior notice to the people or entity thus searched, gives me a good platform to respond (as promised) to fellow Ordinary Gentleman Tim Kowal’s cogent argument for “original public meaning” originalism as a mode of interpreting the Constitution.

I’m not yet passing judgment about the subpoenas, but I think my analysis frames a discussion that needs to be had as a foundation for eventually doing so. It’s not a discussion that’s really been had before in our nation’s history, which turns out to be kind of important on a lot of levels.

1. The Subpoenas

So here’s what we know about what happened recently. There is an investigation of a leak to the press concerning a thwarted attempt to bomb an aircraft last year — a success of anti-terrorism activity. Leaking information to the press is indeed a crime. Sometimes. In 2000, President Clinton vetoed a law that would have made disclosure of classified information under any circumstances a crime, regardless of harm or motive. So sometimes it isn’t a crime, too. If information is leaked, it’s reasonable for law enforcement to think there might have been a crime committed.

So today it was learned that the Justice Department had obtained about two months’ worth of records of telephone calls coming in or going out of the Associated Press’s offices in Hartford, New York, and Washington by way of subpoenas issued out of the office of Ronald C. Machen Jr., the U.S. attorney for the District of Columbia. After the CEO of the AP sent an outraged letter to Attorney General Holder about this…

The U.S. attorney’s office in Washington responded that federal investigators seek phone records from news outlets only after making “every reasonable effort to obtain information through alternative means.” It did not disclose the subject of the probe.

“We must notify the media organization in advance unless doing so would pose a substantial threat to the integrity of the investigation,” it said. “Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.”

We know that with a warrant, the government can do some pretty amazing sorts of searches. But the information here is something called a “pen register.” Nob Akimoto points out, correctly, that the case of Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court held that pen registers are not protected by the Fourth Amendment. You have no reasonable expectation of privacy in the record kept by the phone company of your telephone calls. But it’s not quite so simple as that. In order to use a pen register, the government does need, by statute, to apply for and get a search warrant from a court (although it isn’t called that). The federal prosecutor must provide the Court with sufficient information to demonstrate that “…the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.”

Now, we also know that the Justice Department claims that it has the right to seize this information on its own and without a warrant, because the Attorney General himself signed off on the order requesting it. And the statute allows for such unilateral seizure in an emergency situation, provided an application is made to ratify the seizure within forty-eight hours of the seizure. Now, I’m not going to analyze whether the subpoena violates a shield law. I’m going instead to ask whether freedom of the press is implicated. And along the way, I’m going to dig in to how we get to that result.

So given the Smith v. Maryland case, the warrant requirement is purely statutory and not done to comply with the Fourth Amendment, since the Fourth Amendment does not apply at all to the information in question. The Constitutional problem I see comes from a different section of the Constitution, and this is what brings me back full circle to Tim.


2. The Press Clause

The First Amendment to the United States Constitution reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

We have a pretty good idea, after two and a quarter centuries of law on the subject, of the contours of free speech rights, at least in very broad strokes. But free press rights are not nearly so well fleshed-out by accumulated jurisprudence. It’s usually lumped in with speech. But we also know that Congress shall make no law abridging the freedom of the press.

Well, what does that mean? We know that it protects the freedom to publish “every sort of publication which affords a vehicle of information and opinionwithout prior restraint by the government except in very narrow cases, like “sailing dates of transports or the number or location of troops,” so the government could not even stop publication of the Pentagon Papers during the Vietnam war. If “publication” sounds like a synonym or at least a cognate for “speech” to you, well, it does to me, too. I’m not “speaking” to you now in this blog post. I’ve “published” it. But you should have no doubt whatsoever that I’m acting within the scope of my freedom of speech.

Freedom of the press does not mean a license to libel nor the ability to broadcast obscenity. It does not immunize professional journalists from questioning by law enforcement; the First Amendment does not protect sources from identification if a journalist is subpoenaed. The case that decided this last point was Branzburg v. Hayes, 408 U.S. 665 (1972), concerning a reporter from the New York Times who had spent substantial time with sources within the Black Panther Party, who refused in response to FBI questioning to divulge the identity or location of where he had gathered his information. A balancing test was created, but no core Constitutional privilege affirmed:

[I]f the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash, and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.

In other words, it’s basically another warrant application. The need for information to get to law enforcement is balanced, case by case, with the need for a reporter to gather information in furtherance of publication — that is to say, publication. This is in theory no different than a Fourth Amendment balancing the right of privacy against the needs of law enforcement. Only there, we have an explicit Constitutional standard against which law enforcement’s showing can be measured: probable cause.

3. Constitutional Concept Blending

And in subsequent cases, we see a case law blending of First and Fourth Amendment concerns, Zurcher v. Stanford Daily, 436 U.S. 547 (1978). In Zurcher, a student newspaper had a large number of photographs of a student protest turned violent, in which police had been injured (some of the students did poorly as well). The Supreme Court affirmed the issuance of a search warrant into the newspaper’s office for photographs and other records, but stringently limited the scope of that warrant to narrowly tailor the search to only those photographs which would show assaults on police officers.

Which gets to another fundamental concept — strict scrutiny. Whenever the government’s actions implicate a “fundamental right,” the courts guide themselves to examine whether the action was “narrowly-tailored” to be the “least restrictive means” available to realize a “compelling governmental interest.” In law school, they teach students that the law almost never survives this analysis, but in fact about 30% of challenged laws or actions are upheld under this standard.

I can be comfortable with this, because I see “rights” as the limits of the power of the government. The government has X amount of power, no more. We express those limits in terms of “negative rights.” So why not borrow from one kind of Constitutional jurisprudence to interpret a right that is less well-fleshed out? Just because a right is articulated here doesn’t mean it has no function there.

But I don’t know that an “original public meaning” scholar can be comfortable with this kind of borrowing. This does not seem to be what the contemporaries of the Framers were thinking about at all. These are obscure, confusing concepts. They likely formed no consensus at all about whether freedom of the press should borrow probable cause concepts from criminal procedure. That they cared about both concepts is not in dispute; that they saw them as intellectual related is questionable at best. What they would have thought of the subpoenas is, I submit, not only unknown but unknowable.


4. What Is The Right?

Was there a “fundamental right” implicated by the subpoenas of the AP’s pen registers? The AP contends (or at least, shortly will contend) the subpoenas create a “chilling effect” on its sources, insofar as they can now more easily be identified and prosecuted. The “fundamental right” is not speech — the AP published the story and there is, as yet, no cause to think that the AP or any person in its employ is suspected of committing a crime. Nor is it an unreasonable search and seizure, since the Fourth Amendment does not protect the pen register and there does seem to be probable cause that someone leaked classified information to an AP reporter.

The right, if one is implicated at all, is something different than the right to publish. It is the right to learn. The right to hear. And more importantly, to do so in a way that will not draw attention or interference from the government, to do so in a way that the government will not subsequently discourage. Is this, then, something that we can fairly read in to the excerpted passage “Congress shall make no law … abridging the freedom … of the press”?

If you’re an “original public meaning” originalist you’re very likely at sea here. It’s going to be a long, hard slog through the historical record to figure out what the public’s understanding of “freedom of the press” was in any manner that illuminates this question. It’s fair to say that just because it’s sometimes difficult to understand what people thought of a word or a phrase, the exercise of trying to learn this is nevertheless still important. If we come up with a result, it will help us understand the concept of a free press.

First of all, you’re unlikely to find anything at all, at least not anything relevant, in the historical record. To the “public” of 1791, it was as murky as it was to us that anyone had a right to gather information. There was nothing like what we call “investigative journalism” today. It just plain didn’t exist yet. The press was a partisan entity. Its job was to spur people to political action. The truth was a tool, but only one of many.

The people of that era were every bit as divided in the public expression of their partisan loyalties as we are today — and every bit as unprincipled about it, too. There were scandal sheets, sure, and sensational stories sold papers and made or broke both political and personal reputations just as they do today. We could look at the Alien and Sedition Acts and the XYZ affair.

You can get publication out of what was going on historically. But learning, listening, gathering knowledge, without governmental interference?

If you’re looking for the “original public meaning” of a free press, you’re going to find little or nothing about whether the right to gather information was a part of it. “Original public meaning” is silent, at best, it is ambiguous, in that there is no clear indicator of consensus other than that people sort of liked the words.

This particular problem was not one that the Framers ever confronted. “Original public meaning” isn’t there to be found.


5. The Unavailing Historical Record

If you comb the historical record to ascertain “original public meaning” and you find little to nothing that illuminates this question, your lens reveals only darkness. And you must ask yourself what that darkness means. If “original public meaning” being silent means that this isn’t part of the right, you may want to have a glance at the Ninth Amendment, too — but that’s also going to be problematic, since the Ninth Amendment doesn’t enumerate anything and its “original public meaning” was as a catchall and a safeguard, a sop thrown to George Mason and the anti-Federalists.

I must, with Gentlemanly respect, accuse Mr. Kowal of exactly that sort of cherry-picking when he addresses the National Day of Prayer issue: he refers to non-operative language in the Northwest Ordinance, the Constitution of Massachusetts, and remarks credited to John Adams* to indicate that the general understanding of the relationship of the government and religion was one to which a strict prohibition on governmental promotion of religion would have seemed alien. Perhaps.

Or perhaps not. I can point to the historical record, too: the Treaty of Tripoli, signed by the same John Adams:

As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.

Or James Madison’s Memorial and Remonstrance Against Religious Assessments:

…in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. … if religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. … Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three  pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

Madison is widely credited with having hired a chaplain to minister to Congress, with public money, apparently in the same breath that he introduced the First Amendment. In fact, Madison voted against hiring a chaplain, and considered Congress’ actions in hiring chaplains to be contrary to the Constitution.

Or Thomas Jefferson, who may not have participated directly in the drafting of the original Constitution but was influential in the passage of the Bill of Rights, who said in 1789:

I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. Such an addiction is the last degradation of a free and moral agent.

This is not the thought of a man who would embrace religion as a positive influence on society. Jefferson also said in 1814, “Christianity neither is, nor ever was a part of the common law.”

States Established religions, it is true, and the last state to Disestablish was Massachusetts, which didn’t Disestablish Congregationalism until 1833. But they didn’t want Congress Establishing a national religion at all. (So does that mean that members of the Federal generation would have been okay with the President Establishing a national religion? The First Amendment only speaks of a limitation on Congress’ power, after all.)

But this sort of cherry-picking is irrelevant. We can spend all day going back and forth with quotes and counter-quotes. Tim rightly dismisses the notion that any one person’s understanding was important — if it’s important at all to ask what people at the time thought particular words meant, then we do need to ascertain a general consensus.

This we cannot do. Not that it wouldn’t be important if we could do it, but it’s not within reach. There was no Gallup poll in 1791. The fact that we can cherry-pick quotes and passages from a variety of legislatures and a variety of prominent opinion leaders that seemingly oppose one another is evidence enough that consensus didn’t exist. The Declaration of Independence was itself not a document generated by consensus of the public as a whole, but rather an expression of a particular strain of political preference. A substantial number of residents of the colonies were Loyalists and actively resisted independence; a substantial number in addition had no strong preference for or against independence.

The lens of “original public meaning” is, as with the religion clauses and the press clause, a crystal ball in a dark room — you’ll see the right to gather information free from governmental interference in the press clause if you want it to be there, or you’ll see no such right in there if you didn’t want to see it there. Only you’ve fooled yourself by reading into the historical soup that you’re looking at something that was somehow objective. You’ll cherry-pick a sparse and ambiguous historical record to reach an answer you want, pride yourself on being true to the Framers’ intent, and accuse those who disagree with you of being bad historians.

That isn’t good enough.


6. The Constitution As Law

My first objection to “original public meaning” is that it is not only difficult, but impossible, to ascertain with objectivity. But my second objection is even if we could somehow do this, how much importance do we assign to the result of our scholarship? If we can ascertain a clear meaning to a particular phrase, great. But if we could do that, we probably will find that it isn’t much at variance with the way we understand the language ourselves in the first place.

What did the words in the Constitution mean to those people? About the only thing about original intent that we can know for sure is that they expressed themselves in words, words intended to be law. It says so right there in Article VI:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Whatever else it is, the Constitution announces itself as law. And law is made up of words, words written down on a piece of paper. Words that have effect and power in the real world, enforceable ultimately by men with guns. And the law is malleable. The Constitution is malleable. We’ve amended it twenty-seven times and nothing stops us from amending it again except our own inability to form a consensus about how we should do it.

Applying the concept of “original public meaning” to other kinds of words and phrases passed into law is similarly unavailing. In our own day, what are we to make of the “original public meaning” of the Patient Protection and Affordable Care Act? There was no consensus for or against enactment of that law. Does it impose taxes? Fees? Unlawful seizures of property? We look to the text of that law to ascertain its meaning, not some nebulous understanding of what people in Congress or voters thought the law meant. Most of them had never read it in the first place.

Yet the PPACA is law. On that point, there is no reasonable dispute anymore.

If we don’t need to apply an “original public meaning” to the PPACA because we have its very words to tell us what Congress meant when it passed it, why should the Constitution be any different than that?

This does mean, of course, that we have to do some hard work. We have to figure out what words on paper mean, and what effect they should have on the real world. What should those men with guns do? Should they tell the phone company to hand over records to the Department of Justice? Or should they tell Eric Holder that he needs to solve his law enforcement problems some other way?

We first must understand what its mean to have a free press. “Original public meaning” can illuminate, but not resolve, such a discussion. When we have an understanding of what a free press is, we can decide if the subpoenas get in the way of that.

We can’t ask James Madison or John Adams. The ghosts of the Founders aren’t going to tell us, and neither are their writings. It’s not just difficult to figure out what they would have wanted, it’s impossible. And the press is something different today than it was for them. It is, at least to most people, supposed to be somehow neutral in the affairs of partisan dynamics. Its client, its party, is truth. In 1791, telling the truth just wasn’t the press’ primary job.

Congress shall pass no law abridging the freedom of the press. That was true in 1791, 1891, 1991, and it’s true today. Nothing has changed as far as the law goes. We just haven’t yet done the hard thinking necessary to understand what that phrase really means. This case will move us a step closer to that goal. It won’t take us all the way there. We’ll never get all the way there. And that’s okay. But in the meantime, we have a practical problem to solve.

Just like with religion, and privacy, and due process (surely, the Framers would have scoffed at the Miranda warning or the notion of public defenders yet we accept these conceptual innovations in our Constitutional jurisprudence happily) we have to figure out for ourselves what “freedom of the press” means. That we use legal language and not ambiguous history (much less some brooding omnipresence in the sky) to solve our problems does not make us lawless or governed by anyone but ourselves.

Quite the opposite.


* I can find only two references anywhere to the quote Mr. Kowal attributes to Mr. Adams: “if you want the good order that comes from instruction in religion, particularly the Jewish and Christian religion, then you have to pay for it.” Both are the same speech given by Michael Novak in 2006, one at the Heritage Foundation, and the other reprinting that report word for word. I can’t find where Adams actually said this, and if so, when. I’m not saying he didn’t say it nor any reason to question Mr. Novak’s veracity as a scholar (unlike other scholars who don’t mind lying for Jesus). I just can’t find anyone other than Novak who says Adams used this particular combination of words.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. What I find striking about this situation is that the journalists and the CIA are in almost precisely the same situation here. In both cases, they make pretty legitimate claims that the actions of the other party are damaging their ability to perform their stated objective.

    The journalistic claim is that the actions of the J.D. have a “chilling effect” on their ability to cultivate confidential sources.

    The J.D. claim is that the actions of the A.P., in revealing the CIA involvement in the operation, hampers the ability of the CIA to cultivate confidential sources within A.Q.

    I’m not sure what any of this means, but I find the symmetry fascinating.

    • The thing is, the DOJ has the authority to do this under statutory law. If Congress doesn’t like it, they can change the fucking law that they’ve kept reauthorizing since 9/11.

      Specifically the PATRIOT Act.

      Also AP needs to stop pretending this had anything to do with the actual phone conversations or that anything of theirs was “seized”. This is again a problem with how the pen register laws work, but isn’t as though the DOJ went and impounded their computers or took their records. They simply took the records that were recorded by telecoms.

      Do like how quick the media is to resort to hyperbolic statements about its rights, when they happily go around using leaked private documents to talk about the latest in celebrity gossip.

      • The thing is, the DOJ has the authority to do this under statutory law.

        I think that reponse waves its hands at the questions that are of real concern to some of us.

        • If that’s whether they should or not, far from waving it away, that’s exactly what Nob is pointing to, it seems to me.

          If it’s whether they’re abusing that authority, it seems to me that implicates the question of whether they actually have the authority in this situation. It’s less than clear in my view, as I say below.

          It’s possible that they have the authority but that we shouldn’t like the determinations they have to make in order to justify it (as I also say). But then still, that goes back to the broadness and lack of review that’s actually written into the law, which Nob is calling on Congress to address.

          So I don’t think it’s fair to say that Nob is waving away the relevant questions here. The only think that’s problematic is saying that Congress isn’t in a position to criticize the DOJ’s use of the authority they gave them, because they gave it to them. They certainly are in this position, and if the law were rightly limited and being abused, they’d (in my view) would be in a position to do nothing but raise hell. But given that it’s Nob’s (correct, in my view) view that the law gives unacceptably broad discretion to DOJ here, Nob’s view is that they shouldn’t just be raising hell; they should be getting off their asses and fixing the law. My only difference is that this doesn’t mean they shouldn’t be raising hell *too* (and I may even be uncharitable to Nob in saying he thinks they shouldn’t; he may just think, above all else, they should be looking at changing the broadness of the authority granted, since it is in fact too broad – not just complaining about its use).

          In any case, I don’t think that Nob is in any way waving away the concerns that “some of you” have, and indeed I think he shares them. Of course, if those aren’t going to be stated, then we’ll never know that.

        • The real concern, IMO, is that electronic privacy and record keeping and data assembly are NOT taken seriously by anyone except the EFF and maybe a few advocacy groups around them. The issue that we’re working with a fundamentally flawed interpretation of what “reasonable expectation of privacy” means with electronic records and communiques, with an ever expanding concept of “in plain view” being applied because we have a society that is now entirely dependent on third party communication applications that store and track data.

          Twitter, email, cell phone applications in general, the use of cell phones themselves, web interfaces for mail and chat, social media. If I send someone a direct message via. twitter do I have a reasonable expectation of privacy? What about the location from which I’m sending text messages to someone?

          As the phone hacking scandal in the UK has shown us, it’s not simply an issue of governmental power or concern. In fact more often than not the media is one of the first to exploit the open-ended data collection regimes. Again, the only reason they’re crying as loudly as they are now is because they were the victims rather than the exploiters.

          This is bullshit. Congress if it had any balls and cared about the true, underlying issue would simply make collecting and accessing ANY information pertaining to communications technology opt-in from the consumer’s point of view, with all terms of service contracts and EULAs requiring that they note the data gathered will NEVER EVER BE SHARED unless the consumer in question allows it. Because given how intertwined our private lives are today with things that have and will continue to be regarded as “in plain view”, simply critiquing how the DOJ is oppressing the poor Associated Press doesn’t cut it.

          This is a fundamental privacy issue and one that we need people who aren’t octogenarians to define.

  2. “The Supreme Court affirmed the issuance of a search warrant into the newspaper’s office for photographs and other records, but stringently limited the scope of that warrant to narrowly tailor the search to only those photographs which would show assaults on police officers”

    Though, doesn’t this illustrate the same meta-data conundrum that’s frequently comes up with modern information storage and retrieval systems?

    How would one know a photograph shows an assault on police officers unless someone looks at each and every photograph? Especially if they’re not pre-sorted, filed or indexed in any way?

  3. There was no Gallup poll in 1791.

    Actually, there was, and when properly unskewed it predicted that George Clinton would win in 1792.

  4. From the same Novak speech:

    Then the ammunition of the Americans ran out. While the bulk of the Continental Army retreated, the last units stayed in their trenches to hold off the British hand-to-hand. That is where Major General Joseph Warren was last seen fighting until a close-range bullet felled him. The British officers had him decapitated and bore his head aloft to General Gage.

    The decapitation story comes from a letter written by Abigail Adams, who of course wasn’t there at the time, and appears to be quite false. For one thing, Warren’s body was later identified by his false teeth. For another, the letter is ambiguous about whether the decapitation actually occurred:

    We learn from one of these Deserters that our ever valued Friend Warren, dear to us even in Death; was [not] treated with any more respect than a common soldier, but the [sav]age wretches call’d officers consulted together and agreed to sever his Head from his body, and carry it in triumph to Gage, who no doubt would have “grin’d horrible a gastly smile,” instead of imitating Ceasar who far from being gratified with so horrid a Spectacle, as the Head even of his Enimy, turned away from Pompeys with disgust and gave vent to his pitty in a flood of tears. “How much does pagan tenderness put christian Benevolence to shame.”

    What Humanity could not obtain, the rights and ceremonies of a Mason demanded. An officer who it seems was one of the Brotherwhood requested that as a Mason he might have the body unmangled, and find a decent interment for it. He obtaind his request, but upon returning to secure it, he found it already thrown into the Earth, only with the ceremony of being first placed there, with many bodies over him.

    So there’s one instance of Novak preferring a good story to an accurate one.

    • The closest I can find to the Novak quote is this:

      “But how has it happened that millions of fables, tales, legends have been blended with both Jewish and Christian revelation that have made them the most bloody religion that ever existed?”

    • To my ear, the John Adams quote doesn’t sound 18th-century at all. I’ve spent many years reading from that era, and it’s just all wrong. Google ngrams agrees in particular that the phrase “have to pay for it” is a recent one:

      Our ancestors heavily favored the locution “must” to express a state of obligation. “Have to” is a newcomer.

      • I had the same reaction (not that I’ve read as much of that as you; I’m a lot closer to the average American on that score). In fact, I didn’t even read them as words Tim was saying came out of Adams’ mouth/pen in exactly that way when I read the post. I assumed he was saying that this was someone’s paraphrase that nonetheless conveyed the meaning of something Adams once said.

  5. 1. I feel like we should redirect comments about the particular AP/DOJ matter to Nob’s post so that this comment section doesn’t become a two-headed matter dealing with both interpretive theory and pen registry. (I thought about commenting to the effect that I thought Burt may have erred in trying to deal with this topic controversy and his broader view of interpretation in one post, but the illustration was clearly valuable enough to him that I didn’t think it was necessary.)

    2. Relating to Justice’s authority to gain access to these communications records pursuant to the emergency provision Burt references, it’s not all that clear to me there’s any clarity about legality. That statute provides that, where the pen register is placed pursuant to an order (warrant) by a judge that has been sought by a law enforcment official, such data collection should only be done “if the court finds that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.” The emergency provision extends that to this situation:

    Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that—
    (1) an emergency situation exists that involves—
    (A) immediate danger of death or serious bodily injury to any person;
    (B) conspiratorial activities characteristic of organized crime;
    (C) an immediate threat to a national security interest; or
    (D) an ongoing attack on a protected computer (as defined in section 1030) that constitutes a crime punishable by a term of imprisonment greater than one year;
    that requires the installation and use of a pen register or a trap and trace device before an order authorizing such installation and use can, with due diligence, be obtained, and
    (2) there are grounds upon which an order could be entered under this chapter to authorize such installation and use;
    […]may have installed and use a pen register or trap and trace device if, within forty-eight hours after the installation has occurred, or begins to occur, an order approving the installation or use is issued in accordance with section 3123 of this title.

    The condition that I bolded looks to me to suggest that the named official(s) has to “reasonably determine” that the same conditions which would cause a judge to issue an order for one of these devices has to exist in order to install one without an order. So that would include the provision from the main statute that “the court finds that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.” Now, the conception of that type of certification doesn’t appear to come with a “reasonably determined” attached, so perhaps that’s the out that the DOJ uses to essentially claim that the power to place these is essentially not limited in scope as to what records can be obtained. But the broad structure of the law here certainly appears to suggest that, whether ordered by a court or installed due to a finding of an emergency by a DOJ official, “the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.” That’s ‘likely to be obtained,’ not ‘being sought.’

    So, how targeted does a use or series of uses of a pen registry search have to be to meet that test? I have no idea, but I imagine the answer lies in the record of orders for such uses judges have issued. If an “emergency” DOJ use of this technique is radically less tareted than what a judge would order in similar circumstances, it would certainly seem to me to be an open question whether that use is compliant with the requirements that a DOJ official “reasonably determines” that “there are grounds upon which an order could be entered under this chapter to authorize such installation and use,” among those being that “the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.” For that not to be the case, we would have to say that in issuing such certifications, attorneys for the Government needn’t be concerned with whether (enough of) the information likely to be obtained through such uses is reasonably likely to be understood by a judge to be relevant to an ongoing criminal investigation. Even if that’s not something that in practice a judge would require for such certifications to be valid, as citizens I think it’s entirely fair for us not to look kindly, and indeed to question the legality of such certifications when made without references to when judges have deemed them legitimate in the past.

    A second, more obvious issue in the legality of this unilateral DOJ use of pen registries, where a reasonability requirement does clearly apply, is in the determination that a qualifying “emergency situation” applies. As quoted above, for such a determination to allow this action, it must “reasonably” find that the situation involves “(A) immediate danger of death or serious bodily injury to any person; (B) conspiratorial activities characteristic of organized crime; (C) an immediate threat to a national security interest; or (D) an ongoing attack on a protected computer (as defined in section 1030) that that constitutes a crime punishable by a term of imprisonment greater than one year.” Obviously, everything depends on what courts have found “reasonability” to entail in this area. But it’s not clear to me that any of these could reasonably be concluded about this situation – at least not such that would render absolutely any investigation into leaks of classified info in the national security area to be such an “emergency.” And, again, even if so, see the above argument that the broadness of such a use should reflect the same narrowness of targeting that a judge would order, as the emergency exception seems designed to address only the issue of time-sensitivity that doesn’t allow an order to be obtained – not to expand the scope of the use of pen registries past what a judge would order if there was time to seek such an order.

    Beyond that, apart from the implications for legality – whether of the veracity of certifications as to the the relevance of information to be obtained through this kind of search, or the reasonableness of a determination that qualifying emergency situation exists – even if there is not enough in these arguments to throw much doubt about legality of this use, there is no reason for citizens (including members of Congress) not to form opinions about the good faith being shown by a DOJ (staff and leadership) in making the kinds of certifications and determinations that have to be made, and asserted to be “reasonable,” or in the case of the certifications, implied to be accurate (that’s what a “certification” is – an affirmation of a statement’s accuracy), in order to perform a data-gathering operation like this and maintain that it is being done legally. Americans can look at these determinations and certifications, which the DOJ has to be asserting are reasonable and accurate in order for the actions to be legal, and judge for themselves, whether their government is acting in good faith in asserting that these judgements as to reasonableness and accuracy are sound. There’s no reason not to do that, and certainly the fact that it’s arguable that these actions are (pursuant to those assurances) legal is not such a reason.

  6. 3. This was actually meant to be a response to Nob’s point above that under current law the DOJ does have the authority to do searches like this without a court order. It kind of works as a stand-alone as well I’d say, though it makes more sense in that context, since it’s pushing back against that idea, and that’s not an idea that Burt advanced. (In any case, as I say, I do wonder whether it might not be best to direct discussion of the particulars of the AP/DOJ case to a thread specifically about it – Nob’s “The Pen Register and The Meter” post in particular, I would think.)

    • …Replies appear to have already broken down in this thread for me or something*.

      *(“Or something” very possibly to include user moronitude of some sort on my part.)

  7. I’d say there’s another problem here: state secrets. My experiences here are small, but many journalists deal with this large scale. We classify so much information that it’s sometimes nearly impossible to tell if you’re violating the law; a single fact may be classified here, but exist of there somewhere else, in some other document or agency, and not be classified. There is so much of this, such a clusterfuck of it, that sources literally do not know if a particular thing is or is not classified.

    That has an indirect dampening effect; it was amazingly difficult to deal with in my reporting on small businesses doing business with the government, particularly the military.

    This is my internalized understanding of freedom of the press and reporting classified information: It is not illegal. But it is evidence of a crime, too; so you may have your notes, phone calls, computer, or whatever else you’ve got as part of your work reporting become part of the investigation. You’re also called to testify about your sources, and failure to do so may result in jail time. After the Plame leaks, it became pretty standard thought: destroy your notes. Were I still reporting today, and investigating something classified, I’d purchase a pre-paid phone for the interviews and then destroy it at the end of the story for this reason.

    There’s one last thing I want to bear down on, and that’s the notion of ‘press.’ Who is the press? We all hear about the ‘press pass,’ as if it gives some special grace. To this I say hogwash. To publish only requires your will; in the day of the framer’s, what was published was mostly flyers of propaganda to help radicalize the populace. There’s no degree, not credential, no license required; it’s not really even a ‘profession,’ though it’s a very good thing when reporters understand the legal framework within which they work and work to professional standards. You are part of the press here, when you hit the submit button on a comment, which is what I’ll do now.

    • This last point is the most trenchant in my opinion. Am I a member of the press because I published this essay? Are you a member of the press for commenting on it? Newspapers employ bloggers, but surely the fact of employment by established media outlets alone is not the critical criterion. Interpreting the meaning of the press right through the lens of a supposed consensus of meaning that purportedly existed in 1791 is buncombe. What “the press” is today is what matters. We have to solve our problems in the moment. History provides a guide — A guide, not the only guide.

      • Is that all we have to do? “When we said ‘Freedom of Speech’, we didn’t mean for *YOU*”?

        It’s elegant, at least.

      • Perhaps we err in ascribing to the word the meaning that it has come to have for us – i.e. that “the press” is in some way a membership organization of people. A printing press is a piece of machinery used to publish the written word. Perhaps the use in the First Amendment reflects that usage, whereby “the freedom of the press” is meant to mean “the freedom of the people to use presses as they see fit.”

        More interesting to me than this problem of personal versus functional meaning in that word is the abundant evidence that a good number of significant “meaning understanders” of the Founding Era evidently thought that protection had some pretty considerable limits/exceptions. For an Originalist, that matters; but for a textualist, all that matters are the words themselves. It’s easy for a textualist to say that the enactors of the Alien And Sedition Acts simply didn’t comprehend the clear language of the Constitution as amended in 1789; it’s less easy for an Originalist to take that stance (IMO). The problem for a textualist is getting to a place where reasonable balancing done by judges seeking to weigh competing interests can possibly be justified given the absolutist language of laws like the First Amendment and the Second Amendment.

      • While reporting, I observed something that still fascinates me: people’s notions of what ‘press’ is, and what it does. It’s actually structured rather like government, too; or at least reflects familiarity with government structure.

        When I spoke with someone who dealt with the Federal government, and to a lesser extant, State government, there was some comprehension that a reporter, asking for information, did so as a citizen, using rights that all people have. At the Federal level, government employees were pretty familiar with their obligation to provide information not classified; a requirement of the Freedom of Information Act. Step down to the State level, and there was less even-handed treatment of information; folk understood that I had a right to ask questions, but it was more often mistaken that this right stemmed from my role as a reporter, not my role as a citizen. At the local level, this got very pronounced. I could question because I was a reporter; a citizen doing the same thing would often be of concern, and I’m pretty certain regular Joe’s going and asking the same thing Jane Star asked would get talked down to and discouraged.

        I also frequently had regular Joe come to me and ask for help getting information; under the mistaken notion that I had a right to ask for things because I was a reporter, information that they, as citizens, did not have the right to request. Each time, I’d explain how the laws worked, and I’d walk people through how to approach it. First, I’d say, just go ask. Find out how has the information you need, and ask for it. If they don’t oblige, make your request legal and file a FOIA request. But there is, out there in the unwashed masses, a notion that reporters have some special right to ask questions.

        Reporter’s do have a right to ask questions. But that right is no different then the right that each of us has; it stems from citizenship, not from profession.

        • I have to say, I’ve worked for federal agencies (as a contractor) and every one of them has been very, very serious about FOIA requests. Generally understaffed, but serious. And they get really, really shirty with contractors who drag their heels on it.

          (They’re also really, really serious about classified, sensitive, or proprietary data too. Oftentimes those are in tension).

    • I have a friend who is a journalist. She explains to me that journalists should have additional protections to the ones that mere citizens have. I keep thinking “I should explore that thought of hers” but, instead, I just yell incoherently for a few minutes.

      • I remember people making arguments along these lines back in 2010 when Citizens United came down. People defending the majority decision said that, if the McCain-Feingold law were upheld, the government would be able to impose broad restraints on newspapers and magazines that are organized as corporations (i.e., just about all of them). Detractors countered that a press corporation like the New York Times Company would be exempt from restrictions that would apply to, say, GE or Dow Chemical.

        Justice Stevens appeared to support this line of argument in his dissent, where he wrote: “The text and history [of the First Amendment] highlighted by our colleagues suggests why one type of corporation, those that are part of the press, might be able to claim special First Amendment status, and therefore why some kinds of ‘identity’-based distinctions might be permissible after all.” (Footnote 57, on page 127 of this pdf)

        I think that Stevens and the nice people like Jaybird’s friend are wrong, for a bunch of reasons, but a lot of my reasoning for thinking so derives from the sort of cherry-picking of Founder’s statements and early caselaw that Burt discounts in OP.

        So, absent appeal to original public meaning or something like that, I’m not sure how I can say that, as a matter of Constitutional law, that “freedom of the press” refers to a freedom to engage in press-like activity/publication (a freedom possessed by all people), and not a freedom that adheres to a particular guild.

        • “[A]bsent appeal to original public meaning or something like that, I’m not sure how I can say that, as a matter of Constitutional law, that “freedom of the press” refers to a freedom to engage in press-like activity/publication (a freedom possessed by all people), and not a freedom that adheres to a particular guild.”

          This sounds like the same reasoning that says “the Second Amendment does not confer an individual right to bear arms, because it refers to a ‘well-regulated militia’, which implies a professional force operating under the government’s purview and not a bunch of dudes running around with their own personal weapons”.

      • I would say this: if journalists are a separate guild, endowed with enhanced protections, wouldn’t that guild status generally come with special forms of liability?

        I can sue my licensed attorney for legal malpractice, and I can sue my licensed physician for medical malpractice. But I can sue anyone for libel or slander. I’m not aware of any special form of “journalistic malpractice” that is separate from the regular array of torts (libel, false light, invasion of privacy) that can be brought against any civil defendant.

  8. Of course the gov’ts easy access to “pen register” info is chilling, that’s why the SCOTUS’ ruling was wrong.

    Regardless, I’m not sure why the gov’t had to do this. The NSA sucks up every bit of data and telecom traffic at the interweb/telcom hubs anyway so they already had this info and the content of the calls…

  9. I’ve written one of my earnest amateur’s replies, but I think I’ll wait to see if and how Tim Kowal responds. Also, I agree with Michael Drew’s suggestion that comments on the “pen registry” matter should mostly go over to Nob Akimoto’s post.

    In the meantime I have a request to the lawyers: Say I have a second dog. My lease allowed me to have only one dog. The landlord knew I had this dog, played with the dog, even dog-sat the dog, then, suddenly, one day five years after I first got the dog, sought to enforce the literal provisions of the lease against me, ordering me to get rid of the dog in three days or quit the premises. What is the legal term or set of terms for the argument from settled or customary or accepted practice overruling by implied mutual consent the particular terms of a binding contract? Or have I already covered them?

    I think that’s our real and effective constitution, the one that mostly lets us keep our second dogs.

    • There’s lots of phrases that describe the concept you’re getting at. “Custom and practice,” “course and scope of dealings,” “justifiable reliance,” “implied waiver,” and so on.

      Whether that is actually the Constitution or not is a good question. In an informal constitutional system like the UK, it certainly is the case. The degree to which the accumulated weight of history imposes unwritten obligations or limits or powers in the USA is subject to a lot of debate and few participants in that debate are principled. I don’t claim to be perfectly principled about it, either; I’m human and I have my preferences. But I try.

      • Thanks – I was hoping for fancy Latin, but you can’t have everything – and, yes, I was thinking of the British concept in the distinction between “actually constituted whole system” and “Constitutional system.” Any Constitutional (text-contractual) system will be nested within an in this sense “British” reality. The existence of the Constitutional system within the actually constituted super-system makes that super-system non-identical in actual practice, and in important ways, with a super-system that lacks that reference, but the Constitutional system only exists as actually constituted, so eventually reduces to the latter conceptually. Put differently, the Constitution produces or legally “constitutes” the governing structures of an entity called “the United States of America,” but both the US of A and the Constitution remain an appendage of the People or of the American People, which alone possesses final “constituting power” under the American concept, as the Constitution itself was written and amended to recognize.

        When you say the participants in the debate in this general vicinity are for the most part not “principled,” is that a character assessment or a legal philosophical assessment or both?

  10. I thank Burt for his thoughtful rejoinder to my post. To set the table for a long comment, let me reiterate what I set out to explain in that post.

    Our Constitution reflects the basic laws and structure of self-government, in which the people are the sovereign. For the people to be sovereign, they must be the ultimate authority of the laws and of the government that promulgates and administers them – including the Constitution. In order for the people’s law to rule, it must be given effect by applying its abstract meaning to concrete events. Whose “abstract meaning” do we care about? If the people are to be the ultimate authority of the Constitution – and again, in a self-government, they must – then it must be the understanding of the people at the time the law was enacted. If it is someone else’s meaning, then it might still be government, it’s just no longer self-government.

    With respect, I don’t see that Burt answered that, my most central contention. Instead, right near the beginning of his constitutional law analysis, he seems to be begging the question:

    We have a pretty good idea, after two and a quarter centuries of law on the subject, of the contours of free speech rights, at least in very broad strokes.

    We have a “pretty good idea” from who? From the Supreme Court, I presume he means. But why should the Court be the touchstone of meaning instead of just “the text,” which, as the title of the post declares, is “all we have”? I suggest Burt has already implicitly adopted a key premise underlying my argument: The text is not all we have; the text stands for abstract meaning; and abstract meaning is held among people. Thus, the Court – like the Framers – might server as a proxy for the people’s meaning. But neither the Court nor the Framers can properly do more than reflect the meaning held by the people.

    As Burt says later in the post, “We have to figure out what words on paper mean, and what effect they should have on the real world.” Precisely. That’s the nature of the exercise: What methodology do we use to ascertain that meaning? On this, I find nothing on offer except letting the Court have its way. But this would be no more legitimate than parroting what a particular Framer or group of Framers said. Wearing a black robe while doing the exercise doesn’t change that.

    Thus, we still have to answer the questions I sketched out – i.e., which people, how do we get an idea of their understanding of the abstract concepts the text symbolizes, and how do we go about applying it.

    I respectfully suggest that Burt may be sidestepping the originalism question not by denying the fact that there are vital questions that only originalism can purport to answer, but by simply answering the “who” question differently than originalists do. That is, it seems that Burt’s approach would have the Court fill in the meaning of the words in the Constitution. This is further suggested by the various links to Supreme Court opinions throughout the post supporting the claims of what “the freedom of speech and of the press” means. But it’s begging the question unless and until we go the next step and ask how the Court is supposed to answer those questions. Is it free to start with a blank slate and redefine words from whole cloth? Can it ignore the original public meaning? Can it ignore precedent? Can it adopt new and different contemporary meanings of words? Can it adopt nonsensical meanings of words? Why or why not? Note that, the very instant you attempt an answer, you’re already off script: “the text” can’t help you. You’re in the world of natural law reasoning. Welcome!

    When Burt says that “What they [the Framers] would have thought of the subpoenas is, I submit, not only unknown but unknowable.” Perhaps, but I already said this is not the touchstone of originalism. We don’t need to know with precision what they would have concluded. We just have to apply what we know about the way they did understand about the Constitution and law and the relationship of man and rights and government to the question at hand. We can even get a hint from the way the First Amendment is drafted: “Congress shall make no law … abridging the freedom of speech, or of the press….” It pertains to legislative not executive actions (i.e., to “Congress”). More importantly, it applies to “the freedom” of speech, not merely to “speech.” Speech is not protected, only speech consonant with natural right is protected. That is, the First Amendment never had any tendency to prohibit laws that forbid forcibly tattooing one’s message on a victim’s forehead, for example. Speech that arises to the level of defamation may be prohibited. Speech that willfully incites violence may be prohibited. These are not shocking results pulled out of thin air. These are expressions of the understanding that the First Amendment never justified unjustifiable conduct, and that the very idea that conduct can be adjudged justifiable must precede law in order for law to have any ability to govern.

    So as an “original public meaning” originalist, I am not “at sea” regarding the subpoenas. The executive is charged with national security. If there is indeed a national security interest at stake here, the Constitution does not prohibit the executive from taking appropriate action. (I’m guessing the subpoenas are issued in conjunction with Congressional authority, but that doesn’t mean that the executive couldn’t have just taken them on its own Article I authority.) And again, there is no right to do a wrong. If speech is being abused and in the process puts Americans in mortal danger, there is no “freedom” at issue, under the First Amendment or otherwise. That presents a fact question, of course, but presuming it is established, the Constitutional difficulties are not particularly great.

    On the contrary, the positivist would be overburdened by a long train of confusing precedents, including fabricated attachments to doctrines against “prior restraints,” which itself is based on the faulty notion that “speech” per se is protected as opposed to “the freedom of speech.”

    More importantly, Burt seems to fall into the trap I warned about: It is no avail to reject originalism because it is difficult. Burt even goes further, contending it is impossible. I disagree, but I must offer to give my reasons at another time. For now, however, I will reiterate that, even if the project were impossible, Burt has not answered the question of what we are to do with those words, other than delegate the people’s sovereign authority to the Court to churn out meanings by whatever method, or by no method at all. I submit that isn’t good enough.

    • If the people are to be the ultimate authority of the Constitution – and again, in a self-government, they must – then it must be the understanding of the people at the time the law was enacted. If it is someone else’s meaning, then it might still be government, it’s just no longer self-government.

      So when do we get to exercise self-government? Because by your formulation it seems to me like we’re stuck with being governed by people who exercised self-government a couple hundred years ago, but are now entirely deceased; as dead as John Cleese’s parrot.

      So I’ll ask the same question I posed a few months ago: We could take an existing clause or amendment of the Constitution and pass an amendment that strikes the original language and replaces it with the exact same language, and now it means something entirely different? And indeed, to do so by legislative or judicial fiat would be wholly illegitimate and this absurd amendment process is the only good way to do it?

      I can’t decide whether this is a good example of why lawyers make so much money or why they should all be shot.

      • So when do we get to exercise self-government? Because by your formulation it seems to me like we’re stuck with being governed by people who exercised self-government a couple hundred years ago, but are now entirely deceased; as dead as John Cleese’s parrot

        The way that TK put it, perhaps indicatively for the problem with his approach, does indeed seem to imply the existence of two “we”‘s, the “we who governed then” and the “we who are governed now.” I think TK’s actual position is that there is one “we,” a collective identity or plural personage, aka The American People, that has existed continuously or has evolved from the time of the Founding, but is still for the most important purposes (i.e., matters of inheritance, rights, citizenship, etc.) the “same” individual or legal person in aproximately the way that adult Rod Engelsman and infant or maybe teenage Rod Engelsman are versions of the same Rod Engelsman.

        I don’t want to overstress the metaphor: If we imagine that the Framers were babies, then we can easily imagine they were incompetent, for example. The point is that the Constitution is part of the actual constitution of what we mean by “we.” In the language of the Constitution, “We” are “the People.” This concept (also a “conception”) is either a transcendental concept and a meta-concept, or concept of concepts, or an irrelevant concept. Some conservatives (the sane ones) are fond of the Burkean “pact with the dead and the unborn” to express a similar idea. Either the People or the American People is or are a single People capable of “constituting itself/themselves/ourselves,” trans-generationally or trans-temporally or immortally, once and forever, or there is no nation at all. Similarly, every today’s Living Constitutionalism is a bid to become tomorrow’s Origin, or it’s meaningless. They are two sides of the same problem, though that is not to say that they are equivalent or simply arbitrary positions.

          • Very kind of you to say so, Mr. Likko. Always excellent discussion on these matters from yourself as well as from Mr. Kowal and other Gentlepeople. Time permitting, I may even add some material held in reserve to these comments for yet another Likko-inspired post at my own blog.

        • Okay. Well that’s a perfectly excellent answer. But I don’t know that that gets you out of the weeds yet. Keep in mind that the most recent time this subject came up here the discussion centered around interpretation of the Eighth Amendment prohibition against “Cruel and Unusual Punishments”.

          Now forgive me because I’m working from memory here, but I believe Tim’s position was that the words “Cruel and Unusual” were properly to be interpreted as to whatever would have constituted Cruel and Unusual in the late 18th century. This in opposition to interpreting that to mean whatever a modern interpretation of those words mean.

          This seems to me a case where we can have our cake and eat it too. Because it seems to me that Tim’s latest take on this is that we should properly attempt to gage the broader public political intent behind the words. In this case it seems to me that the intent was to specify that criminal punishments should adhere to principles of proportionality, appropriateness, and common decency.

          So we can honor that public political intent of that eternal body politic of 179(whatever) by adhering to the underlying principles of proportionality, appropriateness, and common decency while asserting our contemporary right to self-governance by applying contemporary understandings of what those concepts mean.

          • Not sure, Mr. Engelsman, that your own comment doesn’t get me, at least, as far out of the woods as I want to be.

            I took another look at the C&UP discussion you reference, and at the text of the 8th Amendment, and the Wikipedia rundown on the history of the phrase.

            First, here’s the entire 8th Amendment text:

            Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

            That’s the whole thing, of course – kind of vague.

            I think if we’re going to preserve TK’s notion of a “fixed” meaning being the same as an original public meaning, then we’re left with a “fixed relativity,” since obviously “excessive” is a completely relativistic notion. It doesn’t say 1 billion dollars for bail on a jaywalking charge is excessive, nor does it say 1 dollar or any bail at all on a jaywalking charge is excessive, nor does it give or really imply any specific numbers or equations objectively distinguishing an “excessive” fine from an “appropriately punitive” but still high fine. It refers implicitly to a concept of standard, normal practices, and I think it’s a fair inference that that also goes for “cruel and unusual,” or can affect our understanding of it.

            As TK noted on the other thread, “cruel and unusual punishment” was something of a “term of art,” or anyway had a very specific history, since the words appear in the 1689 English Bill of Rights, and both it and much of the rest of the language of the 8th Amendment is lifted even more directly from Blackstone’s Commentaries on the Laws of England, which, if I’m not mistaken, was the Bible for all practicing lawyers in the Colonies as well as in England. You can read the interesting history at Wikipedia http://en.wikipedia.o/wiki/Eighth_Amendment_to_the_United_States_Constitution I think the history reinforces the sense of the 8th Amendment as insisting in broad terms that judges and lawmakers hew to the middle, that they apply or make law moderately or according to precedent, not try to shock anybody or use a trial or sentence or punishment to make a personal point or settle a vendetta.

            The key background includes the punishment of a certain Titus Oates – himself an excessive prosecutor – who was singled out for a very peculiar and harsh, or unusual and cruel, set of punishments that the English parliament specifically mentioned as being the kind of thing they wanted to make impossible. I find that interestingly self-referential – the bizarre punishment of a bizarre punisher as an example of something that we just don’t want to get into.

            It’s also noteworthy that the phrase “cruel and unusual” is used in crucial, historically more recent UN, EU, and international treaty texts. So I think in the case of the 8th we may have a situation where the original public meaning, the intuitive contemporary public meaning, the historically informed public meaning, and national and international legal usages are all pretty much the same, and in all cases rely on an inherently variable, subjective, context-dependent set of judgments of “proportionality, appropriateness, and common decency,” as you say, though I think that “cruel and unusual” also clearly and perhaps most specifically extends to any judge or any other representative of the state tempted to work out their personal or political enmities, agendas, manias, etc., against prisoners or defendants, or acting in any way impugning the reputation of the state itself under the then emerging concept of the liberal democratic state.

            It seems to me, to put things somewhat speculatively, that the 8th re-affirms, in a general and relativistic way, the transition from a medieval to a modern concept of the state symbolized both in the Glorious Revolution as well as in the American Revolution, and particularly in relation to tyrannical exercises of authority. Monarchy and other forms of tyranny are very much “personal” forms of government, but the new type of state is supposed to be reasonable and fair, impersonal in a good way, meaning the law serves all of the people, not the whims of particular individuals, and therefore also treats all citizens, even convicted criminals guilty themselves of showing unusual cruelty, as ideally equal, not potential targets of vindictive wrath and de-humanizing or terrorizing violence. Punishment can still be exemplary and even severe (in some absolute sense), but anyone who commits a crime should get the same kind of punishment for the same kind of crime as anyone else would.

          • Slight possibly overly fastidious correction: I’m not sure whether we have to consider monarchy inherently a “form of tyranny,” though an ardent republican revolutionary would. It’s questionable whether a “constitutional monarchy” is really monarchy in the old sense, since it simultaneously reduces and elevates the monarch to a symbolic status, of the unity of the whole state, not its “ruler.”

      • Of course what we’re doing is trying to interpret language, in this case language found in the Constitution. And of course language is an expression of an idea. Neither of us seem to have any particular problem with using some sort of interpretive tool to get to the ideas that these words express. If that makes me an impure textualist or an imperfect positivist, so be it; I don’t think it does, particularly. (I’m beginning to think that I’m really a legal realist rather than a positivist these days anyway; I find certain legal realists from the past to be rather distasteful, so maybe I’m reluctant to fully embrace the label.)

        To the extent that it is possible to discern what was meant by certain words or phrases in the past that we encounter today, I’ve attempted to be clear that such information is interesting. I do see that we agree that discerning such information with accuracy and objectivity is at minimum difficult; we part ways as to whether it is even possible. But were such information to be available, it would nevertheless not be dispositive. And while I realize you insist it would be important, I’m not sure that you think it’s dispositive, either, when you indicate that any attempt to interpret the words in the Constitution at all is necessarily engaging in natural law.

        I understand natural law to be different than historical analysis. I realize that natural law was very much in academic vogue in the late eighteenth century and was an intellectual fulcrum of the Enlightenment. But these are different things. So I’m confused: is interpreting the words of the Constitution an exercise in history (what did people mean when they said “x”) or in natural law (what is the proper relationship of the law to moral virtue)?

        So when you say that “We don’t need to know with precision what [the Framers, or their contemporaries] would have concluded. We just have to apply what we know about the way they did understand about the Constitution and law and the relationship of man and rights and government to the question at hand,” you’re operating at a level of abstraction more heightened than where I have gone and one that, from my perspective, departs from the more nuts-and-bolts sort of historical analysis to which I was responding.

        A part of me wonders if maybe we’re really describing the same thing, like the proverbial blind men and the elephant. I’m quite sure we agree that the Constitution sets forth a government of limited powers and individual rights. I say individual rights are the boundaries of governmental powers, and law (particularly the process of common law which results in things like the Supreme Court cases I referred to in the OP) is the process of testing those frontiers. I think you’re contending that the manner in which individual rights and governmental powers are articulated in the Constitution are both expressions of the more abstract natural law ideals that pervaded late eighteenth-century liberalism. These are not necessarily inconsistent.

        To the extent that you are aiming at those Enlightenment-era political philosophy, those I would agree are knowable, albeit at an abstract and inexact level. It’s when we have to come back down to the practical level of solving actual problems that I think we get in to trouble, because going from the abstract to the practical is possible in all sorts of ways — ways which, as it turns out, happen to dovetail almost exactly with our subjective policy preferences, almost all of the time.

        • As an observer and resident of this land who (therefore) has to either accept the rule of the law in question, or else somehow resist it, I feel far less bound, and less inclined, to obey a law whose meaning – in fact, its actual legal substance – resides in abstract understandings about political relationships held by a number of people who have been dead for almost two hundred years, than I am a law whose meaning resides precisely in a set of words laid down on parchment which still exists and is guarded at every moment by armed guards who will let me in to see it during appointed hours – which words, the argument goes, concrete reflect those people’s political understandings in some way (but which also reflect any number of other factors during that and subsequent times that went in to determining just what those words would be) – but which, in any case, say what they say, wherefrom those meanings stem.

          • We’ll still be trapped in the same hermeneutic circles, Mr. Drew. Meanings never “reside… precisely in a set of words laid down on parchment.” They have to be actualized – they exist only as actively read and applied. They are instructions written in code, and they have to be de-coded, and de-coded according to the code in which they were encoded, not according to some other code. The phrase “original public meaning” is put forward as both the name of and an appropriate description for the code employed by the Coders.

            The problems for our Originalists arises, obviously, where the Coders’ instructions, even after the best possible de-coding, do not seem clear and adequate, or where people do not agree whether the instructions are clear and adequate. As I’ve argued here and elsewhere, the deficit is closed by a political leap of faith that is indistinguishable from a ruthless pragmatic calculation, but that’s a separate discussion. In the meantime, all of the stuff about how the Coders were slavers, they were imperfect, some or all of them were obnoxious, etc., is relevant only if you do not already presume that the Coded instructions are to be followed where and to the extent possible, which means not believing on American constitutional governance.

            On this point, as I’ve said, I think Tim Kowal is essentially correct: Believing the the instructions do not matter or that interpreting them as they were written does not or may not matter is believing in something other than American constitutional self-governance. Yet many or most people who attack the Coders as a way to relieve us of the burdens of hermeneutics do not have any idea of an alternative at all. They seem to believe that we can still have constitutional governance even if we reject the assumptions necessary for constitutional governance. This is an absurd position. It is equally an absurd position to think that “making things up all over again according to the needs and interests of a present majority” would be a some simple solution or any kind of solution at all. How will the present majority determine who is empowered to vote, who is going to be excluded on grounds of age, competence, location, naturalization, good conduct, and so on, and so on? How will the present majority (however determined) determine how long its decisions count, or prevent tomorrow’s majority (however determined) from reversing all of yesterday’s decisions either with new decisions or simple annulments or simply by ignoring them as utterly irrelevant 24-hour Originalism, not binding on people deciding today?

            These questions, as I trust you know, just scratch the surface of the difficulties or impossibilities of the uncompromising realization of any absolute democratic or other political ideal. The greatest minds ever produced by the human species have nearly broken, or some would say have broken, trying to solve such problems. In short, it’s no more bizarre or artificial or unnatural or unjust or impractical to embrace an Originalism of centuries rather than an Originalism of a generation or a decade or the last vote. The Originalism of centuries has the “accumulated weight” behind it that Mr. Likko was just mentioning, by now a weight of “experience” and long accustomization. The Originalism of centuries also includes the Originalisms of a generation, etc., but treats them for what they have been, as acts that, even where they added new Code, have done so in ways that re-validate the Primary Initial Encoding, in crucial part by being also written in OPM. In my view, the Originalism of the Founding or of the Primary Initial Encoding has been renewed or is renewed every day we re-validate the Primary Initial Encoding through a long chain of yesterdays’ re-validations from whichever American here back to there.

          • That’s fairly compelling, Mr. MacLeod. You may have convinced me that my hope to find better reason to defer to the Constitution than is given in Originalist argumentation about its meaning by looking directly to the text is a vain one, and that the lower degree of deference of the two to which I refer is the right one to embrace.

          • I should have added to “If the strip-and-squat looks unreasonable today, I think we’re done. It’s unreasonable.” the following: “If it’s unreasonable then there’s no more need to mentally time-travel to 1791 about whether this is unreasonable than there is to mentally time-travel to 1791 to determine what it means for the President to have attained the age of thirty-five years.” Sorry — got lost in the edit.

        • I probably shouldn’t lead with this point as it’s really more of an afterthought, but I will anyway: I very much disagree with your concluding suggestion that we adopt philosophies of constitutional interpretation in order to justify “our subjective policy preferences, almost all of the time.” I don’t have much authority beyond the personal, but I will certify that none of my beliefs, contentions, positions, premises, or conclusions about constitutional or political philosophy are reverse-engineered to reach a particular policy preference. Perhaps others have more spare brain cells than I do, but I simply cannot imagine how one would go about sustaining beliefs and arguments about abstract notions of constitutional interpretation and history and natural law philosophy, etc., all in order to add a bullet point way below the fold in a position paper concerning particular gun control bill, for example. On the other hand, perhaps advocacy groups would hire political philosophers on staff because their approach happens to favor the organization’s policies. But to suggest that anyone is engaging in political philosophy simply to achieve some policy outcome doesn’t track with me.

          In my view, originalism and the natural law are not mutually exclusive. Most of what we debate about interpretations of the Constitution has to do with provisions in which it presumes a certain approach to problems rather than clearly identifying concrete results. For this reason, there is much debate on what the Constitution means when it refers to “unreasonable searches and seizures,” but not what it means no person may be President “who shall not have attained to the Age of thirty five Years.” It seems clear to me that no one thought the Constitution was limiting lawful “searches and seizures” to those approved at the time of ratification. They were approving an approach to solving that problem.

          I believe that, if the Constitution is to have any meaning, we must follow roughly the approach the founding generation had in mind. Thus, were it to become the prevailing mood that we ought to trust the government when it comes to law enforcement such that no innocent person reasonably refuses a search and seizure, that would be clearly different from the mood prevailing during the founding generation. In my view, it would be illegitimate to interpret “unreasonable search and seizure” based upon this new mood that plainly contradicts that presupposed by the Constitution. The Constitution presupposed a spirit of distrust and suspicion toward government. Many of its provisions would be bizarre in the extreme to people who bring different presuppositions to the text. But a Constitution is not sustained by the text alone. It never defines rights, or property, or justice, or sovereignty, or duty, or power. And yet the document would be wholly unintelligible without bringing such notions to the text. What kind of understanding of those concepts shall we bring? I submit it should be roughly the same understanding the founding generation had. That understanding, presupposed-yet-unstated, is the secret decoder ring that makes the text intelligible.

          • It seems to me that over the arc of our ongoing discussion, Tim, you’ve abandoned the idea of historicity as the guide to interpretation, and shifted to something different, grounded more in natural law concepts. We can certainly adopt a natural law approach should we choose (we’ll disagree about that too, but that discussion does not necessarily involve the Constitution at all); you haven’t returned to that historical concepts until the last three sentences of the comment above.

            If those historical concepts are the secret decoder ring, I submit that this ring is really secret. Consider the phrase “unreasonable searches and seizures”: we can pretty much agree that General Warrants are right out, given the colonials’ experience with them and the length to which the Framers of the Fourth went after using that phrase to define General Warrants out of the scope of that which is reasonable for the government to do. But is there any other limit of the kind of search the government can do? Say, stripping someone naked and making him squat to void their anal cavity? Turns out that five SCOTUS justices think that under some circumstances, that’s “reasonable.”

            Maybe you disagree with them. Or maybe you agree. Whether you agree or disagree, you’re making a judgment about whether a) making the arrestee strip-and-squat is a “search or seizure” and b) it is “reasonable” to do a strip-and-squat is reasonable under the circumstances of a jail intake. I don’t think you, or I, or Mr. MacLeod, disagree that this mental exercise takes place. The question is whether we use a 1791 understanding of those words, a 2013 understanding of those words, or the hybrid approach Mr. MacLeod describes.

            If the strip-and-squat looks unreasonable today, I think we’re done. It’s unreasonable. I’m not all that interested in what folks from 1791 would have thought of it: it’s not reasonable by today’s standards and no one from 1791 is being asked to live with it. If it does look reasonable today, then again, I think we’re done. No one from 1791 is being asked to live with it, but if we can, then we will.

            I enjoy Mr. MacLeod indicating that the gloss put on particular cases from the past will mold present-day and future understanding of the concepts. He would have the Constitution be more than either what is written within the four corners of the document and more than what was in the minds of the people who wrote it there. His is a position different from either yours or mine — one closer to the British way of ongoing Constitutional evolution.

            Where I take issue with him is that all the Supreme Court cases are doing is illustrating particular instances of what the text means — apparently, it is reasonable to make an arrestee do a strip-and-squat during a jail intake. Now we have a better idea of what the word “reasonable” means. But the Constitution still prohibits unreasonable searches and seizures.

            I’m not confused that you’d embrace the coding/decoding concept Mr. MacLeod describes; you and he are clear that an originalist-era understanding of phrases is how you start. But if you’re going to agree with that starting point he describes, it seems you need to find a point of departure from where he winds up — with the Constitution accreting with more concepts and understandings over time, separate and apart from the Amendment process. That destination looks closer to my side of the debate than yours.

          • I’d be interested in where you take issue with me, Mr. Likko. You write:

            Where I take issue with him is that all the Supreme Court cases are doing is illustrating particular instances of what the text means — apparently, it is reasonable to make an arrestee do a strip-and-squat during a jail intake. Now we have a better idea of what the word “reasonable” means. But the Constitution still prohibits unreasonable searches and seizures.

            Is what you disagree with the idea that the Supreme Court is or should be trying to preserve a unity of meaning rather than replacing where necessary an old meaning with a new and improved one?

            Maybe we can look at the Supreme Court a bit like the Academie Francaise, focused on politics and the law, helping to ensure that the English language’s crucial public meanings remain intact. It really may be at least as important that we maintain a believably reasonable and reasonably believable (and reasonably believably reasonable etc.,) relationship between what reasonable means for us-today and what it meant for us-in-1791, as that we happen to protect particular individuals from possibly unreasonable searches and seizures, since, according to the theory of the American state, without the unified coherency and predictability of the law, recorded in language, all of us would be more vulnerable to unreasonable searches and seizures and to a lot of other, far worse dangers.

            In other words, maintaining the all-important unity or identity of the People across the centuries may mean maintaining linguistic unity as much or more than anything else, legally as well as culturally and in the same breath, not so that the People of 2013 can be governed by the other People of 1791, but so that the People-2013 can remain protected by the People-1791, as well as by the People-1891 and the People-2091, and so all of “the others” can remain under “our” reciprocal protection as well. I put the pronouns in quotation marks, because this protection is both function and source of underlying unity, the preservation of the identity of the People as essentially the same People through time and despite whatever changes.

          • I thought I was clear when I said “In my view, originalism and the natural law are not mutually exclusive.” Natural law was an approach found in history no less than the meanings of words. I don’t see how this means I’ve “abandoned the idea of historicity as the guide to interpretation.”

            In my initial comment to the OP here, I set out to reiterate the crux of my argument: It is my view that originalism’s greatest strength is that is has no rivals when it comes to theories of constitutional interpretation that preserve the idea of constitutional self-government. As Mr. MacLeod accurately characterized the argument, “Believing th[at] the instructions do not matter or that interpreting them as they were written does not or may not matter is believing in something other than American constitutional self-governance. Yet many or most people who attack the Coders as a way to relieve us of the burdens of hermeneutics do not have any idea of an alternative at all. They seem to believe that we can still have constitutional governance even if we reject the assumptions necessary for constitutional governance. This is an absurd position.”

            I understand it is your conclusion that we can judge cases without making use of “what folks from 1791 would have thought of it.” But what I don’t find is any defense to my central argument: Your view gives us something other than constitutional self-government. Your view, as far as I can tell, would have us conclude that the people are incapable of imposing constitutional limits on democracy, because the circumstances in which the people would limit their own power are somewhat rare, often many years and generations apart, and your view would have us reject the expressed will of people who are not “being asked to live with” the limits they purported to impose.

            Moreover, I must point out that you still appear to beg the question of where “meaning” comes from when you state “all the Supreme Court cases are doing is illustrating particular instances of what the text means….” Forget about me – answer the question as if a justice of the Court were asking: “How am I to know what the Constitution means?” Is there any answer, in your view, except: “It means what you say it means?” Will you further have an answer when the good justice asks whether you have not recommended an approach laboring under the same problem as Lord Bracton’s, who declared that the king is the law and not under it? Is the Court under any law but its own if it must not answer to the will of the people expressed in the Constitution? And is there any teeth in the people’s expression if their meaning may be ignored?

            I have stipulated from the beginning that originalism is fraught with trouble. But I will accept those troubles sooner than walk into a Bracton trap.

          • CKML –

            If this theory In other words, maintaining the all-important unity or identity of the People across the centuries may mean maintaining linguistic unity as much or more than anything else, legally as well as culturally and in the same breath, not so that the People of 2013 can be governed by the other People of 1791, but so that the People-2013 can remain protected by the People-1791, as well as by the People-1891 and the People-2091, and so all of “the others” can remain under “our” reciprocal protection as well.

            So I’ve had some time to think over your argument. I still think it is a strong view, but I think I ultimately don’t find it completely unavoidable. I’m not even convinced I don’t still find it the best view to adopt overall, but there are reasons why I don’t think it’s a compulsory argument. As I say, I don’t offer them as full-throated rejection of your view, but rather for the sake of intellectual exploration. Also because, to the extent I find myself compelled to adopt your view, I also concurrently find myself less compelled and less inclined to view constitutional self-governance as a institution of principal importance to maintain (though it doesn’t make me inclined to rejecting it – only to valuing it less).

            If I understand your argument correctly, it is not one about essential meaning (which I take you to reject), but about prudence. I.e., that, while you understand that under your theory of a transtemporal unity of the people there isn’t actually any reason that one must privilege the people’s understandings of law at any one moment over that at any other moment, that in your view there is simply prudential reason to do so, rather than to allow what understandings determine effective meaning to change over time. That being that if meanings are allowed to change, the results may be either substantively abhorrent or else legal chaos. You also claim, in your previous comment, that it would vacate the conditions necessary for “constitutional self-governance,” but that’s not really the question we are discussing here, and you also don’t provide an argument for that view, but rather assume it to be true. (I.e. it’s not actually clear to me why it isn’t constitutional self-governance for a people to govern itself by reference to a constitution using interpretations of that constitution that change over time, even if such a situation doesn’t accomplish the end that a particular someone may have for instituting constitutional self-governance (i.e. maintaining a very particular vision of a set of limitations on what can be done by government, rather than a set that hews more loosely to that vision, but that always maintains itself as being within what a reasonable interpretation of the words actually used to describe that vision would provide)).

            In other words, there are a few things you seem to me to be conceding. First, that coded messages can be interpreted via codes other than the one used to do the encoding; they just shouldn’t be (in this case, because that would make what we’re doing no “constitutional self-governance,” though you don’t provide the argument for why I should agree that that’s true, assuming it matters).

            Next, that the people are all essentially equal over time – that indeed there is only one people throughout time, and hence that it’s a prudential calculation that makes the understanding of the meaning of a public text by the people at one time important to follow vice that at another time, rather than one related to their relative standing to determine that meaning, or the “actual” (as opposed to an impostor) meaning. Or, to put it another way, and to restate the previous concession, the people actually can change the meaning of the constitution, because, since there is just one, they can not only change their understanding of what the language was intended to mean, but actually just directly change what it is intended to mean – because they are, after all, themselves the people. They just shouldn’t – for the prudential reasons mentioned, and again, because it eliminates (effective?) constitutional self-governance.

            And last, that this the importance of not changing these meanings does not withstand the problems that seems to be the largest problem that Mr. Likko sees with this view: that it is both difficult to preserve these understandings through time, and that moreover, they are of necessity incomplete and often even indeterminate (the difference being, that where they are merely incomplete, the meaning simply wasn’t fully considered at any particular time, and where they are indeterminate, any given understanding that did exist at any particular time simply weren’t supported by the text – that they functionally demand the rule of judges as to application rather than the rule of some previous understander (other than a judge). You counsel a leap of faith for those areas, but it seems to me that the estimation of their relative size could quite reasonably differ from interpreter to interpreter, such that whether one thinks that kind of leap of faith can be safely accomplished will likewise vary.

            Where all this leaves me is that, ultimately, what you counsel is that we make a prudential determination about what is the best way to go forward in interpreting and enacting legal texts, not that any one approach is compulsory by a logical argument of some kind. You say that whether we have constitutional self-government is at stake in this determination, but in my view you don’t give an argument for that view. Nor do you actually say why that thing, as you conceive it, is something we should care about having (as opposed to something else that you would say is not constitutional self-government but that others would say is, and that is enough for them). To paraphrase Dennett, you don’t say why the variety of constitutional self-government you believe is necessary to have in order to have constitutional self-government at all (but which I might deny is necessary to have it) is in fact necessary to have in order to have it, nor why that variety of constitutional self-government (whatever we call it) is worth wanting (or why it should be for me).

          • Given the imminent approach of the weekend and my corresponding desire to contemplate matters lighter than Constitutional interpretation during it, I shall make this my last full salvo and permit Tim the last word should he wish it.

            To say that and the natural law are not mutually exclusive is not to say that they are the same thing. Positivism existed in the 1780’s as much as did natural law. You cite Lord Bracton (I had to look him up) who made the most extreme, absolutist exposition of positivism imaginable — in the thirteenth century.

            I continue to maintain that we can and should judge cases for ourselves on the basis of the law as it exists today, and not on the basis of what we think some indeterminate group of people from the late eighteenth century might have thought the component phrases of the law meant to them. I say “the law” rather than something else because we can know what the law is. It is written down on a piece of paper. We can understand what the law is.

            The only place our approaches need differ is when those words are ambiguous. You cited the example of the age requirement for the Presidency. These words are unambiguous. Because the Constitution is the result of a political process which included substantial lexicological legerdemain, not all of it is so clearly understandable — and it was not so clearly understandable, even to the Framing generation. People agreed to the words that we have on paper, but not necessarily to the concepts attributed to those words.

            Consider, for instance, the word “between.” Do we need the Supreme Court to tell us what “between” means? Do we need to jump in to our philosophical time machine to travel back to 1789 and adopt the natural-law mentality prevailing at the time in order to interpret this word?

            The anti-Federalist Patrick Henry noted on June 20, 1788, during the Virginia ratifying convention, “If gentlemen pervert the most clear expressions, and the usual meaning of the language of the people, there is an end of all argument.” Given that in 1788 the contemporaries applying contemporary language of “the paper” were the Framing generation whose understanding is venerated by originalism, a textualist and an originalist approach would be precisely the same in all instances. The mean at this convention (and the others like it) are as close as we are ever going to come to the full body of actual Framers — not just the authors of the words from Philadelphia, but the representatives of the people of the states as a whole, who agreed (sometimes by slim margins and in a few cases not) to adopt the Constitution. Those men never had to confront a question of whether these two interpretations might differ. But they did have to confront the fact that even amongst themselves they could not agree one what the very words they were being asked to agree to meant.

            Mr. Henry’s remarks were made in the course of an exchange between himself, James Madison, and John Marshall concerning the scope of jurisdiction given by Article III, section 2 to the Federal courts. That section says that Federal courts shall have jurisdiction as to controversies “…between a State and Citizens of another State,” does this mean cases in which one state is the plaintiff as against a foreign defendant, or does it also mean cases in which a foreign plaintiff sues a state of which she is not a citizen? During ratification debates in Virginia, John Marshall argued with some persuasiveness that it is only the former, relying in part on concepts of statehood, joined by James Madison. Patrick Henry argued against ratification to the contrary, “What says the paper? That it shall have cognizance of controversies between a state and citizens of another state, without discriminating between plaintiff and defendant.” Mr. Henry’s view of that interpretation prevailed in the Supreme Court, as it turns out, in Chisholm v. Georgia, and that result proved so unpopular that the Constitution was promptly amended in response.

            If the idea of a South Carolina citizen suing the State of Georgia in a federal court was not something that the Framers wanted, why did the write it in to the original Article III? Why could they not agree amongst themselves that they did not want that to happen and use better language? Why did those same people, only a few years later, find the result that they adopted so odious that they went back to the drawing board and amended the Constitution rather than live with the result of the words that they, themselves, contemporaneously understood, had agreed upon?

            I can see no answer other than that the consensus they had formed was as to words alone, and not a consensus as to understanding of the concepts behind those words. Chisholm v. Georgia was correctly decided. “between a State and Citizens of another State” means exactly that: a lawsuit “between” a State (Georgia) and a Citizen of another State (Chisholm, or more precisely in that case, Chisholm’s testator). It does not say “by a State against a Citizen of another State,” alternative phrasing which would impart the meaning incorrectly attributed to that phrase by Madison and Marshall — a meaning which despite being incorrect we should safely assume was intended by at least a majority of Virginians, whose representatives in convention ratified those words in the Constitution rather than rejecting it yet, only a few years later, rejected the very result they had previously adopted.

            There are three ways I can see to look at this series of events:

            1. The Framers initially wanted to let people sue other states in Federal courts, but at some point between 1787 and 1794 they changed their minds, so while Chisholm was decided correctly, it was out of step with the will of the people as a whole, so the Eleventh Amendment was necessary to enact the changed will of the people.
            2. The American people never wanted people to sue other states in Federal courts, so Chisholm was decided incorrectly. The Eleventh Amendment was necessary to overrule the fact that the Supreme Court blew the call.
            3. The Framers as a whole never really formed a consensus about individuals suing states not their own when they adopted the original Constitution, leaving only the raw text that had been adopted. Based on that raw text, Chisholm was decided correctly but the result was odious to the people as a whole. So, the Eleventh Amendment was necessary to enact the will of the American people in 1791.

            Of these, #3 by far adheres best to the historical record — the elites of the era including in some cases the personal authors of the text themselves could not agree on what those words really meant; while they agreed on text there was no substantial consensus as to meaning, there was no meeting of the minds. The text is all there is. Fortunately, the law is malleable, through the process of amendment, when the results of application of the law to actual cases are sufficiently displeasing that we find that we cannot live with them.

            I think that while I’m mainly debating with Mr. Kowal here, these remarks also substantially address Mr. MacLeod’s comments and queries. So with that, I’ll confine myself hereinafter to only brief remarks.

          • What a great reply, Mr. Drew! It will take me some time to give it the answer it deserves, assuming I’m able to. I’ve already given a few tries this morning, but they inherently test the bounds of “reasonable discussion.” I think we’re trying to discuss what we are or may be at all in some notional larger context of possible meaning, leaping into our own shadow, seeing ourselves from outside of ourselves. It makes me think that authentic constitutional issues are always more profound than we are, because if they are not pre-constituting us, then they are not the authentic constitutional issues. I hope to try again later, and see if I can respond by focusing as closely as possible on the particulars, and answering as conservatively as I can, but I’m not sure that even my best efforts will be sufficient to keep the discussion within bounds.

          • This has been a profitable exchange for which I am grateful. I accept your offer to give the last word, though I certainly would not object should you choose to respond.

            In the latter regard, I am curious to know your thoughts regarding Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985). There, the Court held it would not infer Congressional intent to abrogate state sovereign immunity, but would only uphold abrogations where the Congress has “unequivocally express[ed] its intention to abrogate the Eleventh Amendment bar to suits against states in federal court,” and that, in order to do this, the Congress must “mak[e] its intention unmistakably clear in the language of the statute.” In addition to the text of the Eleventh Amendment, the Court grounds its holding in the recognition that “the significance of this Amendment ‘lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III’ of the Constitution.” The text of the Eleventh Amendment doesn’t say this, of course. The Court brought these concepts to the text to discern its meaning.

            The Court’s approach to the Eleventh Amendment appears to support John Marshall’s regarding Article III, i.e., that the text is not all we have, but that we also bring concepts inherent in political philosophy that inform our interpretation – concepts, like sovereignty, which are not mentioned in the text. We find the Court bringing such understandings to their interpretation in all kinds of decisions. In so doing, they are off-script. The text is not informing their opinions. So what is? It is my contention we ought to be concerned about what informs these non-textual concepts, and that there are rules about what non-textual – or presuppositional – concepts are appropriate. This, in my view, is where originalism and natural law come into the picture.

            I understand your point that the founders did not have consensus on a variety of issues, many of which are nonetheless mentioned in the Constitution. I also understand your contention which follows – i.e., that the original public meaning is no touchstone because it doesn’t tell us the outcome on particular issues. I must yet again emphasize, however, that precision is not the touchstone. It is not greatly troubling that we cannot predict how the founders would have come out on a particular issue. Take your example of the debate over Article III. You acknowledge, as I certainly do, that there is “some persuasiveness” in Marshall’s contention that Article III must be read with an understanding of “concepts of statehood.” It appears that the Court in Atascadero State Hospital also finds no problem in bringing these concepts to the text. I’m not sure I understand why you find Marshall’s view to hold “some persuasiveness” given that he has gone off-text and your contention is that “the text is all we have,” but in my view, it is legitimate and even necessary to bring concepts prevailing at the time of ratification to the interpretation. Is the text so ambiguous that this presuppositional concept should control? On that point, I tend to agree with you that Chisholm was rightly decided – thought the presuppositional concepts of sovereignty were relevant, the text was sufficiently clear to be decided without resorting to such concepts.

            But if “concepts of statehood” are relevant to the inquiry, what else is? Why can we bring “concepts of statehood” to the text but not other concepts? Is there anything that limits the concepts we can bring to the text? Is there anything that compels us to bring certain concepts to the text? Is there anything that prioritizes certain concepts over others? Originalism and natural law might not decide the debate between Marshall and Henry, but they do guide what kinds of non-textual, presuppositional concepts are fair game.

            These presuppositional questions are the ones that concern me. It seems beyond dispute that we bring presuppositions to the text. It also seems beyond dispute that these presuppositions inform the meaning of the text. And if that is the case, then the text is not all there is. And if the text and the presuppositions that inform its meaning do not both derive from the sovereign people’s authority, then we are under something other than constitutional self-government.

          • I find Marshall’s argument one that we ought not to ignore because it illuminates the definition of the word “State.” But Henry’s argument was a superior argument, and SCOTUS recognized it as such in Chisholm.

            Sovereign immunity is not to be found as a concept in the Constitution other than in the Eleventh Amendment. To be sure, to get to the doctrine of sovereign immunity one must go beyond the text of the Constitution. For my money, the Supreme Court got even more explicit about the extra-Constitutional basis of this doctrine than the Atascadero State Prison case in Alden v. Maine 527 U.S. 706, 713 (1999):

            …the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today … .

            The Constitution is the supreme law of the land. It is not the only law of the land. Here we confront English common law preceding adoption. With that said, I can’t say I’m entirely comfortable with the idea that this doctrine is inherently part of the Constitution. Justice Souter’s dissent in Alden does a very good job of demonstrating the unsettled nature of the idea of sovereign immunity during the Federal era as to this specific point; as to the more general issue of whether it’s okay to go beyond the Constitution to interpret the Constitution it leaves me with a discomfort similar to that I feel when reading, say, Marsh v. Chambers, 463 U.S. 783 (1983) (ignoring but not overruling the Lemon test for a historical analysis of a claimed Establishment Clause violation). But given that we can have a robust doctrine of sovereign immunity in the law without necessarily saying it is part of the Constitution I don’t have a lot of heartburn about the end result.

            …Oh, my goodness, that wasn’t brief at all.

          • CK-

            I had the same exact experience in responding to yours! In fact, I was prepared to leave it at what I’d said initially, but the questions and claims you raised nagged at me (specifically, the question of whether a coded message must be decoded only according the code in which it is written, and also whether the constitution is written in code at all) until I decided I had to try to start with what I was thinking at see if it took me somewhere worth going. I’m not sure that it did, but I figured hitting submit would be a way to figure that out.

            I’ll reiterate that I find your view very attractive, and I also think that your sense of the requirements for constitutional self-governance seem intuitively correct to me. As I say, the question for me is whether this view is logically necessary, and then if not, and if it is instead prudential considerations that give us to choose these ways to interpret and apply legal texts, whether I agree with that prudential assessment. I suspect I will be considering that question for quite some tome to come. What I am most thankful for is the clear analytical frame you’ve provided that allows me to see that that is the question to consider. I had been lacking that before, and hence I hadn’t been able to clearly see that question, nor therefore consider it with any directness or clarity.

            As Mr. Kowal says (though I think there are two rather separate tracks of discussion going on now), this has been a profitable exchange, and I am grateful for it. See you around, I hope, Mr. MacLeod!

  11. O/T:

    I was unable to comment on the 1776 feet post.

    Does one have to be a registered user in order to comment in that section of TLoOG?

    • No. Comments are still open on that post.

      Note, though, that I use 301 redirects quite a lot these days, in no small part so that comments are aggregated in a single thread. A sub-blog post may redirect you to the front page; a front page post may redirect you here to the sub-blog.

      • Strike that. I see what you’re talking about now. It’s not just on that post, it’s on several, at least on the front page. What’s odd is that behind the scenes, it appears comments are still open, but the combox doesn’t load up for some reason.

        I have no idea what that reason might be.

      • LOL and I was planning on defending you there.

        Well, here is what I was going to say. Feel free to add it or not:

        It is worth noting that the Freedom Tower is being built on the site of oldWTC6, not oldWTC1. The footprints (feetprint?) of oldWTC1 and oldWTC2 are now pools, which are part of a greater memorial. And as Burt has pointed out, there are other new buildings, such as WTC7.

        I have been fortunate enough to see this building going up. For those who are against the building going up and don’t live in the NYC DMA, I would say they lack the proper perspective. If you do live in the NYC DMA and feel that way, I would like to meet you, since I have yet to meet anyone who publicly feels that way.

Comments are closed.