Why Originalism?

In our discussion of constitutional originalism below, I’ve been asked a very good question — Why should we choose originalism rather than any other interpretive strategy? Even if we grant that we need a consistent interpretive framework, it doesn’t necessarily follow that originalism is the best of the bunch. Below, I’ll explain why I think this way.

Consider the following from Randy Barnett, who has done more to influence my understanding of the Constitution than anyone else:

The Constitution is a law designed to restrict the lawmakers. Although the Constitution itself may have multiple purposes and functions, its “writtenness” has many fewer… [W]ritten constitutions are in writing for a reason. Primarily, [a constitution] is put in writing to better constrain the political actors it empowers to accomplish various ends. In particular, it is put in writing so these actors cannot themselves make the laws by which they make law…

Under the fiction of popular sovereignty this separation is absolutely critical for, in its absence, the legislators, like the king before them, are supreme and cease to be the servants of the people. (Restoring the Lost Constitution, p 103.)

If the meaning of a constitution is not in some sense limited, then the government is in no sense limited by the fact of having a written Constitution in the first place. We can argue all we want about the practical restraining power of a piece of paper, up to and including the rather trivial observation that writing alone doesn’t do a damn thing. But if we don’t even attempt to signal some limits to power, then we’ve given up the project of restraint before it has even begun. Writing down the constraints we would like to have is not the last step. It’s the first, and it’s no less necessary for all that.

Vagueness favors arbitrary government. This is true above all in governments like ours, where it is held that we as a nation have already consented to be governed. What, after all, did we consent to? Surely we didn’t consent to “whatever.” Even government by consent of the governed — itself a principle that we all agree on — implies that there is a constant, binding set of limits on government action. Where might we find those limits? In the text of the Constitution, of course.

Admittedly, even with the clearest of constitutions there will be need for construction to resolve ambiguities. But there must also be some meaningful degree of constraint in our interpretive work. Without it, the Constitution becomes a mere list of suggestions, or possibly a fetish object, but it is certainly neither a morally binding limit on government power — akin to a contract — nor a guarantee of individual rights.

But why choose the original meaning or meanings of the text, out of all of the various meanings that might be supplied? Barnett answers:

Given that the meanings of words can change or evolve, in searching for the ‘generally accepted’ or reasonable meaning within a particular community of discourse, at what point in time do we look for the meaning? […] With a constitution, as with a contract, we look to the meaning established at the time of formation and for the same reason: If either a constitution or a contract is reduced to writing and executed, where it speaks it establishes or ‘locks in’ a rule of law from that moment forward. Adopting any meaning contrary to the original meaning would be to contradict or change the meaning of the text and thereby to undermine the value of writtenness itself. Writtenness ceases to perform its function if meaning can be changed in the absence of an equally written modification or amendment.

For this reason virtually all written contracts require modifications to be in writing… Meaning must remain the same unless it is changed, and changes require the same degree of writtenness and formality as the original writing. (ibid, 105-106)

The original meaning was the meaning, at the origin. A method was also offered to change the Constitution. If that method hasn’t been used, then we are left with the original meaning. It can’t be any other way, because the only presumptively legitimate method of change hasn’t been used.

It might be objected that amending the Constitution is very difficult, and that the amendment process can’t keep up with the fast pace of modern life. For two reasons, I don’t find this a terribly weighty objection.

The first reason is that enacting the main body of the Constitution was approximately as difficult as passing an amendment today. Indeed, given the multiple ways one might enact an amendment, amendments are perhaps even easier to pass than ratification was. Given that amendments have an equal legal force to the original document, and that they can even strike out passages from it, we should wonder, rather, that amendments are not harder to pass than they now are. In this context, it seems downright strange to complain that amending the Constitution is too hard.

The second reason is that amendments really should be difficult. These are not mere laws; they are laws by which other laws are made. They ought to require a higher degree of demonstrated consent than mere laws. Obviously, how much harder may be a subject for debate, but “approximately as difficult as the original Constitution” doesn’t seem unfair in light of their relative legal power.

But can originalism be any basis for a morally binding consent? Even with all the odious passages in the original document? Barnett writes:

Some may argue that the original scheme as formally ratified was not ‘good enough’ to create laws that bind in conscience or, even if it once was, it would be no longer in today’s world. Only because the system we now have differs in important respects from the original meaning of the written Constitution does this lawmaking process provide the assurances that legitimacy requires…

Whatever its merits, were this claim to be made explicitly, it would improve the quality of the discourse concerning the appropriate method of constitutional interpretation and the value of originalism. For those who make this claim would have to admit that they have deviated from the original meaning of the Constitution as formally ratified and then identify their criteria of legitimacy and how the resultant system can produce laws that are binding in conscience on the individual. They would also have to explain how the values provided by a written constitution can be preserved when the writing can be contradicted without formal amendment…

[I]f the original meaning of the Constitution is not ‘good enough,’ then originalism is not warranted because the Constitution is itself defective and illegitimate. This represents a rejection of the Constitution, however much an improvement it may be. (110-111)

A further objection might run like this: The original Constitution was horrible, because it excluded women and enslaved blacks. The Civil War Amendments were a big improvement, of course, but then along comes Justice Scalia, who opines that “women” were never intended to be “persons” under the meaning of the Fourteenth Amendment, and should not be considered as such. And if he’s right, then it’s still a pretty lousy Constitution, and still should not be viewed as having much moral force.

The simple answer is that Scalia is wrong. The Fourteenth Amendment extended rights not to men, but to “persons.” It excluded women from voting, of course, and in our constitutional history it was the first such explicit exclusion. The act of excluding women from voting was profoundly unfortunate, it was corrected later — and it remains highly instructive today. Indeed, that very exclusion demolishes Scalia’s argument. Here’s why.

Had the Amendment’s authors wanted to exclude women from due process, from privileges and immunities, and from equal citizenship, the language to do it was very obviously available to them — why, they used just those exclusionary terms when it came to voting! But they did not use them for the other clauses. This can’t possibly be an insignificant choice.

Is our highly gender-egalitarian society what the authors of the Amendment intended? In all of its consequences? The question itself is silly. Answering it requires that we posit in these people — wise though many of them were — an omniscience not granted to men or women. They lived in an era of, as we see it, great contradictions. They wore those contradictions for the most part lightly, and were untroubled by them. They deserve a good measure of shame for it. But they don’t deserve to be scorned for using general language, language that helped make today’s world possible.

We must assume that they intended this language to have some effect. That is enough for our purposes. Why, after all, should we twist the plain meaning of the word “person,” when the word, both then and now, may denote either a man or a woman? And when they were surely aware of it?

A dialogue might help explain things:

2011: I’m reading this text, and it says “persons.” I take that to include men and women on an equal footing. After all, that’s the definition of a “person” in both your era and mine.[1]

1868: That’s not what I meant, though. Women aren’t equal citizens with men — no one could possibly believe that!

2011: Would you consider writing down the differences, then? I mean, here you are, articulating the rights and privileges of all people, and it might just so happen that I turn to your text for guidance about what to do with the fairer sex. Can you help?

1868: There is no need. Virtually everyone understands and agrees to the differences between the sexes.

2011: What if, in time, no one understood or agreed to them?

1868: I wouldn’t care to speculate.

2011: So you wouldn’t care to write it down? Like, in the Constitution?

1868: No.

2011: Then we can’t possibly hold ourselves bound by your unwritten rules. You want us to do it? Put it in writing.

Unwritten understandings aren’t a part of the Constitution. This is true whether those understandings favor the left, as with the New Deal jurisprudence, or the right, as with the 1868 view of women. We may need such understandings to get by — for good or ill — but two things are certain. First, they will change over time. And second, in case of conflict, the text trumps them. A moral truth remains a moral truth, even if it’s written by a moral imbecile.

—–

[1] Yes, yes, coverture. I have other cupcakes to fry at the moment.

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116 thoughts on “Why Originalism?

  1. Jason writes:

    Had the Amendment’s authors wanted to exclude women from due process, from privileges and immunities, and from equal citizenship, the language to do it was very obviously available to them — why, they used just those exclusionary terms when it came to voting! But they did not use them for the other clauses. This can’t possibly be an insignificant choice.

    This is correct, and it is the reason why textualism and not originalism is the right approach. The objection that the meaning of words changes over time is insubstantial, because by the time we get to the point that we can no longer live with a changed definition making a Constitutional provision intolerable, we have the power to change that provision through an amendment. So will future generations.

    The words of the Constitution are law, which is why the Fourteenth Amendment applies to “persons” and not “former slaves.” The intent of admirable-yet-flawed people long dead, even if it is ascertainable, is not law. It’s all about the text, baby.

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    • I almost agree. I can’t help but conclude that the original public meaning of the Fourteenth Amendment encompassed — without its authors necessarily knowing it — things basically identical to both the situation on the ground in 1868, and a liberal equality of men and women.

      Why choose the latter? Two reasons. First, the text permits that interpretation, and it would have permitted it back then, too. Indeed, it would have done so with greater argumentative consistency than it would have permitted the status quo at the time.

      Second, it’s the interpretation that favors greater liberty. When doubts arise, we need to remember why we have this thing called the Constitution in the first place.

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      • I wholeheartedly endorse this facet of your statement

        …it’s the interpretation that favors greater liberty. When doubts arise, we need to remember why we have this thing called the Constitution in the first place.

        Hear, hear.

        With that said, I’ll devote exactly one more comment to hair-splitting: Without knowing that you’re doing action P, or at least without wanting to implement its consequent Q, you can’t have the intent to either do P or the intent to effect Q. So I don’t quite grasp how the Framers of the Fourteenth Amendment could have formed an original intent to include women without realizing that’s what they were doing.

        Or are we speaking of the kind of “intent” that applies in first-year torts class? Something like the doctrine of “transferred intent” that might apply in a wrong-victim assault and battery case? By analogy, the Framers of the Fourteenth wanted to give broad legal equality to former slaves, but wound up giving broad legal equality to everyone. If that’s what “original intent” is, that approach seems destined to wind up in a place very, very much like textualism, remaining true to the words of the Constitution but doing things differently than its Framers did them — as BSK points out below.

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        • I’m not advocating original intent originalism. I’m advocating original public meaning originalism. The drafters of the 14th Amendment may have thought they were doing one thing, or one set of things. The public, however, would have to be the final judges, and what they did by ratifying was not to ratify some fairly arcane interior understandings of the drafters. What they did was to ratify a set of words. It can’t be otherwise.

          A good analogy suggests itself again from contract law. If you sign a contract, it’s no defense to say “Well, I didn’t know it meant that.”

          (Yes, it may be a defense, extending the contract analogy, that the Fourteenth Amendment wasn’t ratified consensually. But we really want to go that route, we should be consistent and ask the antebellum slaves whether they consented to the original Constitution, too.)

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  2. Mr. Kuzinicki,

    I really like this post because it offers the best defense of (a kind of) originalism that I’ve read. (I have only read a little; still, I intend this as praise.)

    But it does seem to me that most disputes over the “meaning” or interpretation of the constitution revolve around very contested terms that did not and do not have an unambiguous, uncontroversial meaning. What is necessary? What is proper? What is commerce?

    Your example of the distinction between “person” and “man” in the 14th amendment seems to bring up another challenge that originalism faces. If the due process phrasing does obligate future generations to extend rights to all who are considered persons, that phrasing does so independent of the author’s conception of how the due process clause would and should be applied.

    So far, so good. But this example also takes away one of the rhetorical points that I often hear from people who describe themselves as “originalists,” namely, the assertion that the founders “would never have intended” for x clause to be interpreted so as to present us with y situation we have today. This claim is often used in reference to the very expansive way in which the commerce clause jurisprudence has defined interstate commerce. One might plausibly claim, however, that so many of the expansive definitions of “interstate commerce” that these originalists attack and would undo are at least defensible to some understanding of interstate commerce that might have been accepted in the 18th century. How would one prove such a claim to the satisfaction of the originalist? If they found a noted legal scholar who had such an expansive definition? If they found one of the convention goers who had such an expansive definition? If they found an Anti-Federalist polemic that feared such an expansive definition?

    I’m not so sure that “the founders never intended what we have today” is the principal argument for originalism, but it is one of the rhetorical ploys they often use, and it seems irreconcilable with the definition you offer.

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  3. I generally agree with the points in this post. I also find Barnett’s argument compelling, that the Constitution’s force lies in its moral claims on our collective conscience. Thus, if our understanding of the natural law evolves and the language used by the Framers allows us to fairly read the Constitution to reflect that understanding, that’s a pretty fair justification.

    Yet, Scalia’s rationale is at least a colorable one—by no means as clearly wrong as Jason suggests. I think this for the reason outlined in my post the other day on the same subject, and for the reasons in another post yesterday about the Constitution and continuity. Perhaps I’ll try to flesh it out more.

    But as I say, my presumption remains toward the interpretive method Jason describes here.

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  4. JK-

    In your hypothetical dialogue there, I think you point out one of my biggest struggles with originalism. There are many issues on which the Constitution is not explicit. For instance, they say “persons” but don’t explicitly say that persons = man and woman. They then went ahead and continued to deny women the right to vote, despite what the 14th Amendment said about persons. As such, mustn’t we assume that their intent was not to include women in “persons” since they didn’t include women in the application of that Amendment? They said one thing (or what we understood to be one thing) and then did another. As such, it seems disingenuous to make claims of originalism when we are acting in direct opposition to how they applied the law and, theoretically, intended for it to be applied.

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    • At least when dealing with this particular issue, your concerns might be resolved by the fact that the due process “person” clause is in a different section from the clause that mentions states will be denied a share of representation for the number of males not allowed to vote. In other words, the 14th might have threatened to lower a state’s share of representation for the denial of the right to vote for any “person,” regardless of gender, and yet its drafters chose not to do so.

      It does raise a question, for me at least, as to whether the right not to be deprived of “life, liberty, or property” without due process of law did not include the right to vote. According to the 14th’s drafters, it probably did not.

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      • I’d agree with this analysis. In particular, if the right to vote was included in “life, liberty, and property” for them, they would have written an amendment in which one clause directly subverts another, even while showing no awareness that they had done so. This would have been an extraordinarily strange move.

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  5. 1868: That’s not what I meant, though. Women aren’t equal citizens with men — no one could possibly believe that!

    1886: Corporations, sure, but not women.
    1896: And blacks? Maybe, if they keep to themselves.
    1956: Yes, blacks. Real Soon Now.

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    • Corporate personhood is easy to mock, but if it didn’t exist, we would be much, much worse off.

      Consider that the New York Times is a corporation. If corporations have no rights, is it okay to censor them? How about the Catholic Church? Also a corporation. The Democratic National Committee? Yep…

      Corporate personhood is a good doctrine when it allows individuals to retain their rights even when they act under corporate forms. It is a bad doctrine insofar as it shields corporations from the responsibilities individuals would otherwise face, if they had done similar things. Even if this sometimes happens (and I don’t dispute that it does), getting rid of corporate personhood is not the answer.

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      • > Consider that the New York Times is a corporation.
        > If corporations have no rights, is it okay to censor
        > them?

        Well, this is a cart and horse problem (also, one could agree that corporations have some rights without saying they have the same rights as a citizen, no?)

        I mean, one could also possibly say, “Yes, corporations have no rights. Yes, this means we can censor the New York Times. If they don’t like it, they can go private. Defining “a corporation” as a limited liability entity by definition makes it completely non-isomorphic to a human person, so they pay for that limited liability by losing some set of their rights. Tough shit, nobody says you have a right to incorporate *and* simultaneously have full citizenship rights”.

        One can also argue (as I do), that the current corporate structure limits corporate speech… not because corporations have no right of free speech, but because corporations have legal obligations to their stockholders (as we currently understand business law), and one of those obligations to their stockholders is to account for their expenditures. One cannot reasonably report “donations to a political party” as an expenditure that adds stockholder value, without fessing up to the obvious truth that they’re buying votes. How else can it add value?

        > Even if this sometimes happens (and I don’t dispute that it
        > does), getting rid of corporate personhood is not the answer.

        Maybe not. Alternatives? I’m open to suggestions.

        I regard corporate donations as a critical problem (admittedly, that’s not a universal stance) for both of the aforementioned reasons; I think (a) you can’t reasonably argue that you’re doing this for the good of the stockholders and (b) it introduces a power imbalance problem that is irreconcilable.

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          • Well, to be sure.

            To clarify, you can’t reasonably argue that it adds stockholder value unless it’s actually doing what everyone claims it isn’t, which is buying votes. If it’s buying votes, then the person who is selling the vote is obviously violating his or her oath of office.

            This isn’t a problem for the corporation, this is a problem for the legislator :)

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            • Oh, I think it’s much more subtle than that. One man’s “barrier to entry” is another man’s “reasonable restriction”.

              I recall a recent law passed in, I want to say Oregon, that required a certain amount of testing for phthalates (I think it was phthalates) and if you had X ppm or something, you couldn’t sell it. If you couldn’t prove that you had X-1 ppm, you couldn’t sell it.

              Which meant that the old guy carving ducks out of wood that you put wheels on and tie to a bit of twine could no longer sell his hand-carved ducks… because he couldn’t test them

              Hasbro? They could afford testing. No problem.

              And if you wanted to argue against the law… well, do you *WANT* children to have phthalates entering their bloodstream?

              It’s a simple question, after all.

              It’s subtle.

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              • That’s the nice thing about taking the free speech question out of the equation.

                If Hasbro is donating money to Congresscritter Joe’s campaign ’cause Joe is introducing the phthalates bill, Hasbro *still* can’t account for that without fessing up that’s where the value is coming from ;)

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                • “Hasbro Cares About Children”.

                  I mean, Congressman John Doe does not know about phthalates. If he knew about phthalates, he would have gotten a real job somewhere. Perhaps as a speech therapist.

                  He relies on advisers who explain such things as phthalates to him. (Remember Ted Stevens explaining that the internet was a series of tubes? You know that that was an example given him by a frustrated aide on his or her fourth or fifth attempt to explain the internet.)

                  Who best to explain phthalates if not Hasbro? You want Concerned Mothers Against Phthalates to show up? Sure, they can show up too.

                  And Hasbro and Concerned Mothers will hammer out a law called the “Protect Children from Phthalates” Act (or the PCP Act) making sure that toys are *TESTED*. Hell, they even have objective scientists show up who explain how dangerous phthalates are and an accountant who explains how much Hasbro will have to pay to test for phthalates and Hasbro is going to do it *ANYWAY*. Only the most cynical would say that this is PR… it’s costing Hasbro money!

                  And only once the concerned mothers get home and back on with life do they realize that Hasbro is still selling Hasbro toys but they can’t find the old man who makes pull-string ducks.

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                  • Wait a minute…I thought it was alar and that stuff in plastic drinking bottles that I needed to worry about. Now there’s something called phthalates? And it affects all those wheeled ducks I own?

                    Is the world safe for no one anymore?

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                  • That’s an awesome explanation of how lobbying works, Jay. I still think Pat’s point is a good one though – how does Hasbro account for consulting with the Federal government over phthalates as an activity that adds shareholder value?

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                    • You can’t point to your political contribution, and show that this changed the law, which enabled you to save those children and keep them as customers.

                      At least, again, not without fessing up that you bought the vote. That’s what you did. You bought the vote. Maybe for good reasons, but you still bought the vote.

                      I’m not saying the corporation can’t buy the vote. I’m saying that the politician can’t sell it.

                      So either the corporation can’t admit they bought the vote, which means they can’t put it on their financial statement and thus they’re hosing their shareholders… or they can admit they bought the vote and they’re accountable to the shareholders, but the person who sold the vote violated their oath and they’re accountable to their constituents.

                      One of the two has to be true. We don’t need to limit corporate free speech by appealing to the constitution, we can limit corporate free speech by appealing to the fiduciary responsibilities to the shareholders.

                      Either the corporation is being responsible, in which case they bought the vote and the congresscritter is guilty of violating their oath, or the corporation didn’t buy the vote, and thus they are being irresponsible to their shareholders and thus they’re violating their corporate charter and they’re screwed.

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                    • We’re talking about children dying, dude. Won’t anyone think of the children?

                      Something needs to be done. We can’t expect parents to even know how to say “phthalates”. We, as good citizens, must take up this banner on behalf of all of our children in order to prevent inadvertent child abuse/neglect.

                      And Hasbro can lead the way in protecting our children.

                      To answer the question posed in the top line?

                      Yes. Hasbro can, and will, and DOES.

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                    • Okay, so Hasbro cares about the children.

                      Oh, wait… that still doesn’t add shareholder value. You still can’t put that on a balance sheet.

                      Hasbro might care about dying children in Uzbekistan, too. If they donate all their profits to Uzbekistan instead of paying my dividend, they’re still in violating of their corporate charter :)

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        • In terms of corporate donations, shareholder lawsuits are the obvious answer, and the accounting standards should require companies to disclose and justify donations (they may already – it depends how you read them). While its arguably defensible for companies to lobby for legislation that genuinely helps their business, in most cases donations don’t even do that – they just reflect the preferences of management, and on that basis shareholders should sue. Unfortunately really making this work would be an uphill battle – its much easier to just sell the shares than to sue the managers, most investors are passive or self-interested and will just do this, and in general American courts reflect this in their rulings by giving corporate management a great deal of leeway.

          Its hard to really see any alternative to personhood that doesn’t violate the underlying legal norm that what one person can do legally, any number of people can also do. The difficulty comes in because the “persons” represented by the corporate person technically are the stockholders, and the stockholders usually have little or nothing to do with what the corporation does. That determined by the management who aren’t personally liable at all. Removing limited liability would fix that, but no-one would want to own shares any more and the entire secondary investment business in which most of us have our retirement savings invested would collapse, so that’s out.

          I’ve wondered about whether corporate charters provide a way out of this quandary. The charter can be see as a contract between the shareholders and the state that sets out the terms under which limited liability is given. At the moment all charters extremely broad – the purpose of the company is set out as “to engage in any lawful act, activity or business”. If this were forced to be narrower – if, for instance, it had to set out specifically that the purpose of the company was commerce and not political fundraising – there’s arguable be a case for the state to prosecute directors and managers who allowed the company to donate political funds.

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        • Question, Pat.

          Is it all corporate expenditures on politicking that are troublesome or direct contributions to legislators’ re-election funds?

          I’ll admit you raise the troubling point of what’s the money for, if not buying votes. Though a for-profit (or even non-profit) pro-advocacy group wouldn’t have a problem with that obligation.

          However, it seems to me that issue ads/issue advocacy would be a legitimate business expense. Following from that, contributions to PAC’s that do the same advocacy work would undoubtedly support politicians in favor of the same? Which makes me think there’s something of a chicken-egg conundrum present. How can one reasonably tell the difference between support (corporate or otherwise) of a politician already predisposed to support policies and a politician whose support of particular policies is a result of their financial support?

          It all seems a bit messy doesn’t it?

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          • Sure, it’s messy. I don’t think you can have a clean solution here aside from banning types of speech, and I’m onboard (enough) with Jaybird’s slippery slope argument to agree that we ought to avoid that if at all possible. And a legitimate point is that institutions will still find ways to skirt rules, of course.

            Heck, you can always give your entire employee base a $5,000 bonus along with a suggestion that they donate it to somebody’s campaign. You probably can’t fire them if they don’t without it turning into a lawsuit :)

            > However, it seems to me that issue ads/issue advocacy
            > would be a legitimate business expense.

            Certainly. Again, this can be done, well within all rules, provided it’s accounted for. If Hasbro wants to put up its own ad about a product which has political implications, let ’em do it. They can put it in their budget, put their name on the ads, and put footnotes in the MDA of their financial statement to justify those expenses to their shareholders.

            > Following from that, contributions to PAC’s that do
            > the same advocacy work would undoubtedly support
            > politicians in favor of the same?

            Yes and no. Certainly, they can contribute to PACs (again, assuming they declare those expenditures). And certainly, those PACs can turn around and give that money to an individual candidate. Presumably this is tracked or not based upon the rules for PACs.

            But this does mean that Citizens for Responsible Environmental Actions will show up on the financial statements of Chevron, BP, Applied Materials, whoever. Maybe Citizens for Responsible Environmental Actions turns around and gives money to Inhofe, and maybe according to the rules that’s okay… but at the very least I can look at Chevron’s financial statement and get a good laugh about Citizens for Responsible Environmental Actions, and somebody somewhere can write a funny blog post or newspaper article about it.

            I actually don’t mind, so much, when organizations try to buy elections. What I mind is them being able to do it without people knowing where the money is coming from. Knowing that Inhofe is very likely a shill for the oil industry tells me something about him that is useful information to me, as a voter.

            One can make an argument that an individual has a right to privacy and ought to be able to make a political contribution without everyone in the world knowing they shell money out to a particular politico (we can argue that point, but it’s a defensible point). An organization does not have the same expectation of privacy, as it is required to divulge its interests and expenditures.

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      • Consider that the New York Times is a corporation. If corporations have no rights, is it okay to censor them? How about the Catholic Church? Also a corporation. The Democratic National Committee? Yep…

        And once they’re 18 years old, they should all get to vote.

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        • Have you read nothing of what I wrote? What part of “legal fiction” don’t you understand?

          The legal fiction of corporate personhood does its job when it protects individual rights. It should be discarded the moment it absolves anyone of responsibility, or when it creates new rights that do not attach to individuals.

          Or… again, would you prefer to censor the New York Times and shut down the Catholic Church, on the theory that corporations don’t have rights?

          I’m very serious about this — are we free to ban religious corporations, despite the First Amendment, because corporations don’t have rights?

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          • No, I do not believe we should ban the catholic church. But, I would like to know what your reaction would be if you found out that I had people working for me who were raping twelve year olds and I knew about it and all I did was transfer the rapists to another job site? How I many bishops and cardinals went to jail for aiding and abetting rapist? How many people are facing manslaughter for the BP fiasco? Until the owners face the same liability that people face, they won’t change. I think a bad corp, just like a bad person should not be allowed on the streets.

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          • Jaybird:

            You’re forcing this to be an either/or question, when it doesn’t have to be, at all.

            There are different types of corporations. I see absolutely zero reason why we cannot legally require, as part of articles of incorporation, certain obligations in return for that limited liability, based upon how you are incorporating. Not prohibitions (you can’t do this) but obligations (if you do this, you must do that).

            I see no reason why a publicly traded for-profit company cannot be required to enumerate and account for their expenses. They have a fiduciary obligation to their stockholders. If they’re giving money away, for any purpose, I have a right to know that as a stockholder; or, in the case of a publicly-traded company, I have a right to know that as part of their financial statements, so that I can decide whether or not to invest. (We can argue about whether or not US GAAP is Constitutional, I suppose, but I’m assuming for the moment that you don’t have a problem with at least the current concept of financial reporting).

            Yes, this certainly would not stop all corporate donations; not-for-profit or non-publicly held corporations would have the ability to do this without public reporting (although, in some cases, they would still have to disclose to their shareholders, they wouldn’t be required to make it freely available to anybody if they’re not publicly held). They are permitted to do so, I’m not abridging their right to free speech – I’m enforcing their legal obligations to their shareholders, and they either don’t have any (shareholders) or they only have private shareholders.

            It also wouldn’t stop, say, the NYT or the WSJ from running editorials that are effectively political advertisements. While partisan media is itself a lesser evil, I’m way less concerned with some blowhard spouting off on a editorial page than I am with someone pushing large volumes of cash into a PAC or a political campaign with no accounting for where it’s coming from.

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  6. You swing back and forth between textualism and originalism. They have inherent contradictions.

    I find it difficult to understand the moral structure of someone who could write the Constitution, a great and revolutionary document, while also believing that it was moral to own other people, or believe that women were intellectually and emotionally inferior to men. I assume, rather than be judgmental, that those people were fundamentally different than we are in many respects. I do not judge them inferiors or moral monsters for owning others at that time in history. What that also means is that, IMO, we may not ever fully understand what they meant when they wrote the Constitution. I think that we can only make best guesses, and should admit that we may be wrong.

    Steve

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    • I don’t agree that I’m indecisive between textualism and originalism. I think what I am presenting is an original public meaning originalism — one that certainly starts with the text, and that must remain faithful to it in a sense, but that derives its understanding of how to be faithful to the text from an understanding of what the words themselves might have meant at the time they were adopted.

      I’ll give an example.

      Suppose that someone invented sentient computers. These would not have been termed “persons” by anyone in 1868, and considerable debate would exist about the question even today. But in 1868, plenty of other entities would certainly have been called persons, including women, Chinese immigrants, left-handed people, the blind, homosexuals, war veterans, professional basketball players, and on and on. This remains true even if the authors of the Fourteenth Amendment didn’t specifically have them in mind at the time that they wrote.

      Including sentient machines in the Fourteenth Amendment would take a further amendment defining personhood to include them. This would not be required of any of the others.

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      • The 14th Amendment says:
        “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;”

        They then allowed a whole host of states and the federal government itself to pass a whole bunch of laws that abridged the privileges and immunities of citizens. So should we assume that those who had their privileges and immunities abridged were not intended to be considered “persons” and, as such, we are wrong to consider them as such today?

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        • Well, the Constitution is not a gatekeeper, it’s a check.

          You can pass whatever laws you want, that doesn’t make them Constitutional. There is no “pass Constitutional muster” requirement to pass legislation.

          The Constitution is there to give you a recourse.

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          • But Pat, it’s not like these laws were passed and subsequently challenged and ruled uconstitutional. They existed for decades, some of them upheld under challenge. Some of them passed by the very same people involved in the ratification of this amendment. It’s not like people were sneaking around violating the Constitution. It was the law of the land.

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            • Well, that ties into Mark’s post of a few days ago.

              The reality on the ground is that we, the people, are the ones that safeguard the Constitution. If we pass a bunch of laws that are unconstitutional, and pack our Congress with Congresscritters who will stack the judiciary, we’ll beat the document, because we’ve gone and opened all the safety interlocks and removed all the checks. Without resorting to violence, too.

              When Jason sez: “If the meaning of a constitution is not in some sense limited, then the government is in no sense limited by the fact of having a written Constitution in the first place.”

              I see this differently than he does. The reality is, the government is not in any sense limited by the fact of having a written Constitution in the first place, except by the barriers in puts in place to make it difficult for the government to act as a unified entity. There are, as you point out, plenty of examples of the government, in toto, cheerfully (and in many cases with the adoration of the people) ignoring the document for decades.

              The only thing the Constitution really gives us is the division of roles. In order for the thing to be ignored, you have to get a lot of ducks in a row. If you get those ducks in a row, that’s “Touchdown, we beat the Constitution on this trip down the field!”

              This isn’t the whole picture, of course, because the game doesn’t end there… you have to keep stacking Congress, and keep stacking the courts, and it’s hard to do that for a long time without the whole thing becoming unraveled. At which point, you don’t have a monolithic government, and in that crack in the armor you can insert some liberty and push.

              I don’t find this stance of originalism or textualism or any other formal framework of interpreting the Constitution to be a very interesting philosophical debate, because this isn’t theology we’re talking about. Bob Cheeks and I can argue about theological morality, at some point or another the question is going to be resolved for us when we go teats up and God does or doesn’t appear to judge us by whatever framework He/She/It actually uses.

              There is no such overriding authority going to come along a decade or three from now and let us know once and for all which framework of looking at the Constitution is the “right” one. So rather than quibble about the framework (when frameworks, being what they are, are always going to be limited at the edge cases), I’d rather talk about particular incidents. Sometimes that means deferring to the Founders, because they had something to say about the topic. Sometimes that means trying to push the borders of precedent. Sometimes it means writing new laws. But that’s just me :)

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              • Pat-

                I understand your point, but think you are missing mine, a bit.

                The writers of the 14th Amendment said what they said about the rights of persons. Those same people than acted in such a way as to imply that personhood was limited to only certain segments of the population. As such, mustn’t we conclude that their intent was to define personhood in a way consistent with the laws they past? And, if we must, how are we in any position to argue that personhood ought to be defined differently?

                If a bunch of people down the line did as you described, passed laws, filled Congress with people who’d enforce those laws, and Congress in turn stacked the courts, I’d see your point. But these laws were passed by the same people who wrote the amendment, meaning we must assume their intent was the same (since we’re in the business of making assumptions when we subscribe to originalism).

                Then again, I’m on the record for saying we tear up the document every 100 years or so. So I’m coming from a very different vantage point.

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      • Unimportant nitpick but Chinese immigrants apparently were considered as were Mongolians and Gypsies.

        The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.

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  7. The weak part of the originalist/textualist interpretive structure is that certain practices that are arguably extraconstitutional are widely accepted. For example, the power of courts to nullify acts of Congress an unconstitutional. That is not an explicit power granted to the courts in Article III. It is an implied power, and we have accepted that power since 1803. But once you acknowledge there are implied powers, the question certainly arises as to what other implied powers there may be. I’m not sure that originalism is particularly helpful in this regard.

    Originalism and textualism certainly have a place as interpretive tools, but practice and precedent must also be acknowledged as equally valuable tools.

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      • And if so, one could reasonably argue that the ability to regulate the healthcare industry is included in the power to regulate commerce among the states and that if Congress finds a mandate as necessary and proper for such regulation, who is the Court to second guess.

        The problem is once you start relying on “inherent” or “implied” powers, line drawing based on originalism becomes very difficult.

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        • I don’t see it as much of a problem, at least not from my textualist approach. Here’s how I look at that issue:

          Is the healthcare industry engaged in interstate commerce? If so, Congress can regulate that industry pretty much as it sees fit. Which doesn’t mean that Congress did so wisely but courts aren’t there to judge the wisdom of particular policies.

          Next, is providing a tax incentive, whether positively or negatively structured, to individuals to buy private health insurance reasonably understood as a regulation of the healthcare industry? It sounds more like a plain old tax to me, and the taxing power is distinct from the power to regulate interstate commerce.

          So if the individual mandate’s sole claim to Constitutional validity is interstate commerce, I have serious doubts about the individual mandate standing up to judicial review.

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          • So am I correct to understand you to be saying, contra many (not to say that should make you doubt your view), that were the administration not legally defending the mandate as a tax, but rather as a legal requirement punishable by a fine, it would be on more solid ground constitutionally? I’m not saying I understand you to be saying you would view it as constitutional in that formulation, but just that you find it to be a question that would turn on various findings about the mandate as a regulation of interstate commerce (i.e., is a mandate a regulation, is health insurance interstate commerce, etc)? Would you view the mandate as potentially constitutional in that formulation?

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            • I think the strongest grounds to defend the individual mandate is as a tax. I am less impressed with the argument that the individual mandate is an indispensible facet of a broader scheme of interstate commercial regulation.

              Is the tax grounds strong enough to put it over the top into the realm of permissible legislation? I haven’t made up my mind about that yet, really, and the litigation seems to be going in a different direction than my own thoughts.

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      • Judicial review was well understood at the time, and some of the anti-federalists objected to the Constitution on precisely the grounds that it gave that power to the judiciary. So an original public meaning originalism certainly supports judicial review as a constitutionally granted power.

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  8. Let’s start with the key phrase: With a constitution, as with a contract, we look to the meaning established at the time of formation and for the same reason: If either a constitution or a contract is reduced to writing and executed, where it speaks it establishes or ‘locks in’ a rule of law from that moment forward.

    Bullsht. All contracts exist pursuant to the rule of law established by a constitution. A contract is a legal document; a constitution is a political document.

    If a contract is un-determined on a key issue, it is void because there was no agreement. If a contract is under-determined on a key issue, the judge will fill in the gap to the best of her ability based on her best ability to determine in the intent of the parties and the policies of the State.

    If a constitution is truly undetermined on an issue, then laws passed determining those issues are void, because as a political matter the voters did not grant those powers to their legislators. However, if, as is common with our federal constitution, it is underdetermined on an issue (what is “due process”, or “equal protection” anyway?), then as a political matter we get to elect legislators who use their best judgment to pass laws to fill in the gaps.

    What is the appropriate scope of the commerce clause? That’s for ME to decide when I cast my vote, and for my elected representative (who, by the way, is a hard-core Republican — I live in a gerrymandered district) to decide when he gets to Washington, because it’s a political question, not a legal one. It is appropriate for the court system to set aside my judgment and his only when the legislation signed into law goes clearly beyond the scope of the power or when the law interferes with a reserved right.

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    • Oh, be careful what you wish for.

      If the Constitution is vague on some key point, then by your very own logic you don’t get to fill in the gaps. No, it’s entirely void, and we have to start over from scratch. (Contracts don’t actually work this way, either, particularly if there is a severability clause in them.)

      But if we follow your reasoning anyway, we come to this:

      If a constitution is truly undetermined on an issue, then laws passed determining those issues are void, because as a political matter the voters did not grant those powers to their legislators. However, if, as is common with our federal constitution, it is underdetermined on an issue (what is “due process”, or “equal protection” anyway?), then as a political matter we get to elect legislators who use their best judgment to pass laws to fill in the gaps.

      So which one is it? Are laws that settle constitutional ambiguities void? Or are they in force? I can’t see which one you’re pulling for here.

      As to the meaning of “due process” and “equal protection,” I freely admit that it takes some unpacking. These are legal terms with a long history and were not simply thrown in because they sounded nice. They are hardly the best examples to use if you’re arguing that the Constitution is void for vagueness. (But, on the other hand, they are not without significant dispute either.) You seem to be taking an invitation to reason within a particular legal tradition — encompassing the Fourteenth and Fifth Amendments, and much of English common law before them — and saying “We can’t even try to know what this means.”

      The fact that legal interpretation is not automatic does not imply that it is arbitrary, impossible, or useless.

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  9. 2nd major point — Determining the correct originalist / textualist interpretation is worse than impossible; it’s meaningless.

    As anyone who’s argued a statutory interpretation case knows, figuring out what living legislators meant by what they wrote just a few months prior can be hotly debated, and frequently there’s no one provably correct answer. And for that matter, even if you could interrogate each legislator as to what the law meant, you’d find different answers. Often laws are deliberately ambiguous, because that’s the only way agreement can be reached. Different legislators then hope that the fact pattern which tests the law develops in their favor and the judge sees the facts and the law their way.

    To claim that there exists a determinable original public meaning is simply a lie. How do we know that the various writers at the time weren’t trying to stack the record (as occurs even today)? How can anyone possibly devise a scientifically legitimate (ie falsifiable) means of determining the public meaning? Such a test doesn’t exist.

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    • I would urge you to reread what I’ve written. You are attributing to me many ideas that I don’t subscribe to. To begin with, I thought I’d been fairly clear that original public meaning originalism necessarily entails a variety of possible interpretations. Ambiguities that may exist at the outset continue to exist. This interpretive approach is a beginning, but not an end.

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  10. 3rd & 4th major problems — precedent and judges.

    We have about 75 years of precedent allowing an expansive interpretation of the Commerce Clause. It’s been strongly argued that the 14th Amendment was intended as a strong expansion of federal power, that the Supreme Court got it wrong in the Slaughterhouse Cases, and that the Depression era court seized on the Commerce Clause as a textual means of validating legislative action without going through the embarrassment of overruling prior Supreme Court decisions.

    So, if Wickard was ‘wrongly’ decided because it relied on the Commerce Clause, why isn’t it the case that the underlying legislation was constitutional arising under the Commerce Clause coupled with the 14th Amendment?

    These are meaningless questions because we can’t relive those years. We can’t relitigate either Wickard or the Slaughterhouse cases ab initio because we’re decades later and different people. Even if the various Commerce Clause cases were somehow wrongly decided, we as a nation have lived with the consequences of those decisions.

    So who decides how far to roll back precedent? Judges? What makes them competent to do so? How can they possibly fairly pick and choose those precedents which should be upheld and which should be invalidated in the light of our modern economy, without bringing their own prejudices into play and causing crippling uncertainty in law, politics and the economy? Can’t be done.

    Libertarians may feel grossly wronged by the current expansive interpretation of federal legislative power. Tough. If you want to roll back federal power, you get an amendment passed. That way, we can all debate openly and fairly what the scope of federal power should be on a going-forward basis.

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    • “Even if the various Commerce Clause cases were somehow wrongly decided, we as a nation have lived with the consequences of those decisions.”

      yep, this is why we need an amendment as you suggest to clarify the limits regarding government regulation of interstate commerce. I say do it — amend it and put this to bed. There should be a movement among the states to get this amendment done as quickly as possible — but, alas, we’re stuck with irresponsible statists who cynically justify this loophole and slowly strangle industry — hooray for manipulation and precedence! This is one reason I turned from the left and the Big Government Republicans, because too many are willing to purposefully misuse the Constititution to expand government power in order to strengthen a Merchant State that favors an elite few and selected special interest groups.

      Whoops, is this anti-government hate-speech? Sorry — I meant to say the commerce clause makes me sad.

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    • We have about 75 years of precedent allowing an expansive interpretation of the Commerce Clause.

      Enlighten me on how and why the Commerce Clause doctrine made such a drastic shift during the 1930’s. Remember, in several major Supreme Court cases in the early stages of the New Deal (as well as prior), the Supreme Court ruled that the Commerce Clause did not give the federal government to enact certain programs.

      You can’t just point to 75 years of precedent and ask us to accept it without looking at the underlying shifts in constitutional doctrine.

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    • “These are meaningless questions because we can’t relive those years. We can’t relitigate either Wickard or the Slaughterhouse cases ab initio because we’re decades later and different people.”

      Actually we can and should, imo. Too much of SCOTUS jurisprudence is logical detritus built on rickety cases. The Supreme Court should unwind that to the extent it can and the other branches ought to be more aggressive in interacting with it. In fact, the privileges and immunities business was the cause du jour about a month ago when one of the appellants in the gun cases cited it in their brief. Of course it went nowhere.

      The justices and legal establishment are scared of privileges and immunities clause because it can be a black box for all sorts of crap. Instead, we should view it as a means to unwind the substantive due process jurisprudence. “Substantive Due Process” are probably the most dangerous words in the English language.

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      • Substantive due process is as much an oxymoron if there ever was one since unwinding substantive due process would unwind jurisprudence dating back to the early 1800’s, especially in the various state supreme courts. Due process means judicial review and part of judicial review is striking down laws when states exceed the proper scope of their general police power.

        Long before the conservatives railed against this doctrine, that job was left to the Progressives during the first third of the 20th Century since due process jurisprudence conflicted with certain parts of the Progressive agenda, especially those parts that addressed labor law.

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          • In a way, I am saying that they should be considered identical.

            The term substantive due process is a relatively new term, and in terms of the pre-New Deal jurisprudence, especially with respect to the 14th Amendment cases like Lochner v New York, Meyer v Nebraska, etc., it is an oxymoron because Due Process was understood as judicial review, and part of that was that judges decided whether or not legislatures had the power to enact the laws they did.

            The idea that due process is procedural is something both the New Deal Progressives and modern judicial conservatives have in common, and I think it has more to do with the appropriate role of the judiciary in our system than it does fealty to the text, history or meaning of Due Process, especially as applied in the various courts from the Founding era through the second half of the New Deal.

            Due process in the procedural sense is, at its core, nothing more than a concession that, with few exceptions, legislative majorities say what the Constitution means despite the abundance of evidence suggesting otherwise. When I think of procedural Due Process, I think Buck v Bell. Just saying.

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            • “The idea that due process is procedural is something both the New Deal Progressives and modern judicial conservatives have in common, and I think it has more to do with the appropriate role of the judiciary in our system than it does fealty to the text, history or meaning of Due Process, especially as applied in the various courts from the Founding era through the second half of the New Deal.”

              I don’t think this is right, and I don’t think it changes much even if it were. Just because we unwind SDP doesn’t mean we have to unwind all of it all at once. For starters we can unwind the worst cases like Roe v Wade, Lawrence v Texas and Griswold that don’t have any legitimate rationale either in the text or the original intent of the Framers.

              Ie, due process has to have some connection to process even if it’s a tenuous one. And even if it doesn’t, there has to be some substance to the substantive part of SDP. That is, because we give up any procedural-based limitations to due process, there’s no reason to be limited by substantive restrictions either. Like Jason wrote here in a month or so ago, whoever supports central planning always envisions himself in the role of central planner. The result is whatever Anthony Kennedy thinks is appropriate this week, which is more or less where we are at the moment.

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        • Also, I gather you’re familiar with Raoul Berger?

          https://ordinary-times.com/blog/2011/01/06/limits-what-limits/#comment-92824

          It’s been a long time since I’ve read him, but IIRC the problem of unwinding SDP and the rest of it isn’t as difficult as it’s sometimes made out to be. Essentially, the it took x number of decades to create, we don’t have to get rid of it all by next week. But, that is the direction we’re heading (hopefully).

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  11. Great post Jason! Nuanced, subtle and refreshing.

    To claim that there exists a determinable original public meaning is simply a lie.

    I actually disagree. In fact I think, provisionally at least, I subscribe with open arms to Jason’s form of Constitutional interpretation. Locating the arbiter for meaning in the historically located “public” is about as good of as you’re going to find. And perhaps Jason did not mean what I’m about to say, but as I read the post, it looks like we can locate the text in a historical setting and look at people’s use of those words/phrases/terms and see what they meant by them. So that if people said publicly, at the time of its passing, that portion A of the Constitution/Amendments meant X, rather than take them at their word, we could look at how the words that made up A were being used and understood at that time to see if it checks out.

    So in the example of “person,” whatever political types, legislators, or judges meant by the word at the time in a political setting would have to be checked against how they understood it in every other facet of their life. So while one politician might have meant person to mean man, the fact that they might have wrote a letter to a family member using the word person to refer to either sex, would be evidence against interpreting the word “person” so narrowly.

    Now I’d be curious to know Jason how my might feel about the consequences modern research technology has had with regard to the humanities. I’ve read several stories about segments of the humanities that use to deal with literature and history branching off into archive like fields where hypotheses about how far reaching certain movements were, or the reactions of certain citizens to different historical events, are now being tested against large collections of documents from those periods.

    For example then, what was regarded as the “Victorian Era” in Britain in relation to certain movements within literature can now be checked against the actual mention of that movement and its component parts to see if it was as wide spread as might have been thought.

    As a result, it seems increasingly likely that such methods might be utilized for adjudicating conflicts of interpretation of what a term might have “popularly” meant at the time.

    A more Originalist Intent scheme which narrows interpretation to those involved in passing the Constitution or its Amendments might not allow that same opening for technology, and some would probably prefer it for that very reason (I get the feeling that most of us don’t trust technology employed in that capacity, at least at first, and when it comes to such important matters).

    Finally, to pick up on something I glossed over, how would you choose public everyday meaning over public intended meaning, or did I misread you as choosing that?

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  12. Why originalism? Because altering the terms of the “social contract” that we all presumably accept and observe without our consent is both illegal and void by any understanding of “contract?”

    As for quoting Mr. Brayton on Scalia, you could do better, as the link is unhelpful. Section 2 of the 14th amendment makes and preserves a distinction between the genders. You could look it up.

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    • Section 2 of the 14th amendment makes and preserves a distinction between the genders. You could look it up.

      I already noted this in the part that, ahem, you appear not to have read. Before you snark at me, you’d better be damn sure you at least read what you’re mocking.

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  13. madison:

    “I entirely concur in the propriety of resorting to the sense in which
    the Constitution was accepted and ratified by the nation. In that sense
    alone it is the legitimate Constitution. And if that be not the guide
    in expounding it, there can be no security for a consistent and stable,
    more than for a faithful exercise of its powers.

    If the meaning of the text be sought in the changeable meaning of the
    words composing it, it is evident that the shape and attributes of the
    Government must partake of the changes to which the words and phrases
    of all living languages are constantly subject. What a metamorphosis
    would be produced in the code of law if all its ancient phraseology
    were to be taken in its modern sense And that the language of our
    Constitution is already undergoing interpretations unknown to its
    founders, will I believe appear to all unbiased Enquirers into the
    history of its origin and adoption.”

    Letter to Henry Lee, 1824
    ________________________

    Madison again, not that anybody cares:

    “As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.”

    All the authority it possesses.

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    • When Madison says:

      I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.

      and[T]he legitimate meaning of the Instrument must be derived from the text itself…that looks to me like he thinks the first stop is the text itself. The intent and actions of the ratifiers are the next step to look to if there is any ambiguity.

      I’m just saying.

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  14. I think originalism reflects a basic understanding of what law is supposed to be, in legal theory. Not only fundamental law, but an ordinary statute, is in some sense the command of a sovereign. Blackstone presented a set of standard rules for legal construction which, he wrote, aimed to recreate as nearly as possible the mind of the lawgiver.

    The rules included establishing the primary evil that a given law was intended to remedy, construing ordinary words according to ordinary usage at the time of legislation, and construing terms of art according to their technical sense at that time. Parliamentary debates in Blackstone’s time were for the most part not recorded, or he would likely have included them as an authoritative source.

    In the American case, the Constitution is supposed to be the command of the sovereign entities that established it: the peoples of the several states assembled in the ratifying conventions.

    Obviously most of this legal theory is based on an utterly mythical view of history. In fact the events leading up to the Federal Convention and the subsequent ratification were rigged, tantamount to a coup by Federalists. The ratifying conventions were wildly unrepresentative of the general public, thanks to all sorts of suffrage rules including racial, gender and property restrictions. The general public sentiment was probably against ratification in most states. And once in power, the Federalists (with Hamilton on point) immediately set to work implementing all their centralist/mercantilist/plutocratic wet dreams despite all their prior assurances to the contrary.

    The events of the 1780s, as recounted by Beardians like Merrill Jensen, were a virtual civil war between people who wanted to recreate the British Empire without Britain — Walpolian finance, Mansfieldian jurisprudence and all — and those who wanted a loose national league of loose state leagues of direct democracies run by farmers and tradesmen. The Thermidorean Reaction of the Federalists in 1787-89 was much a coup as was the victory of the Gilded Age plutocracy over the unions and cooperatives after the Great Betrayal of 1877.

    Still, the official rationale is important. We can at least say, “You people pretend to be bound by this document, so we’re holding you to it.”

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  15. Jason,

    In light of all of these discussions, this is certainly worth a look if you haven’t seen it already:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1553002

    I’m currently reading this paper alongside Randy Barnett’s analysis of the Commerce Clause in his book. I’m about 20 pages into it thus far, and I think Balkin does a very good job articulating his position although I happen to find it suspect for reasons I’m still hashing out.

    If you don’t know, Professor Balkin has been arguing that the original text of the Constitution can justify the New Deal agenda. It’s an elaborate argument and I need to better understand the mechanics and the fundamental principles before I comment further.

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  16. I disagree with originalism and with your philosophy generally, but I’m glad to see you explain your basis for adopting that method. That said, let me pose a few questions for you that I think you should consider/answer:

    1st. Thank goodness we are observing the distinction between original public meaning vs. original intent. Just about all originalists now subscribe to it, but nonetheless the popular discussion on these topics often uses sloppy langauge and gets into intent when it should be more careful. So glad that you brought that out. Here’s my problem though: I take it that you understand and agree with the problems created by adopting original intent as the basis for interpretation but it seems to me that those problems are also present in original public meaning. I take Jason to understand the problems with original intent originalism, so I won’t go into detail – the main difficulties are the imposssibility in ascertaining intent of a body of individuals, the fact that many founders intended a living Constitution etc (see Jefferson Powell’s influential 1985 article that motivated the move to original public meaning). I think original meaning originalism is largely a move that allows you to interpret the Constitution using the Federalist papers – which is somewhat dubious at least because those were obviously propaganda in one sense 0 they were trying to convince New Yorkers to ratify – they were not writing pure political philosophy. But the notion of public meaning runs into the same problems of public intent – you can find lots of people who understood the same provisions differently – ask John Calhoun or any Southerner what the Constitution means with respect to Slavery and then go ask Spooner if you want to see an example. I think that while there is a theoretical difference between original meaning and original intent, in practice they have similar problems–and if you recognize those problems by your decision to abandon original intent originalism, I think you need to have a better explanation for why those issues aren’t actually important for original public meaning.

    2nd issue: Your discussion of amendments. You make the solid point that it should likely be harder to amend the Constitution than to pass ordinary legislation, no gripe from me – that makes sense pragmatically. BUT: you didn’t bother to argue that the actual level of difficulty in amending the Constitution is somehow justified. Presumably, if the Constitution required unanimous consent of the states, or of all citizens, you’d think thats wrong or not worth following. Most of us recognize such requirements fall exacerbate the problem of the dead hand critique. But the current level of unanimity is in fact quite difficult. If you count substantive Constitutional amendments beyond the Bill of Rights, there really hvae only been the 13th-19th and the 21st amendments. Thats pretty hard, and I think its probably harder to get 37/50 states to agree to something as compared to 9/13 states. Thus, its gotten a lot harder to pass amendments, as evidenced by the lack of actual substantive amendments for a long time. This is even more true when one recognizes Bruce Ackerman’s argument that ratification is more a matter of what “We the people” politically accept – The COnstitution itself, the 13-15th amendments, and the New Deal were all extralegal when they passed (the Articles required unanimity to change-the Constitution ignored that; the 13-15th Amendments were forced on the Southern States in contravention to the Constitution; the New Deal was a complete change in legislation). In other words, I think you need to better address why originalism is justified if its so hard to amend the Constitution – and if you disagree with the difficulty of amendment – I’d like to hear what you’d think of originalism’s justification if amendment was super difficult or impossible.

    3rd: Last, originalism always believes that at least some part of the Constitution is determinable, that the CLS “every think is indeterminate” critique is off base. I think thats right as well. (to paraphrase Schauer – “a hamburger may or may not be a “sandwich”, but its certainly not a boat”). But in the comments you’ve acknowledged, like most originalists, that the Constitution “runs out” – it requires at least some construction, as opposed to mere interpretation. But once you open the door to construction, as in, adding meat to the bare bones of the text like “equal protection”, you need to specify by what normative basis you’re basing your constructions. See http://lsolum.typepad.com/legal_theory_lexicon/2008/04/legal-theory-le.html for a good explanation fo the distinction between interpretation and construction.

    Anyway, obviously writing something like you’ve done only asks more questions than it answers, but I would be interested to see your response to these issues. Thanks

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    • “Thank goodness we are observing the distinction between original public meaning vs. original intent.”

      Actually this part is confusing to me, and I think part of the reason I part company with Jason. Jason, I think, claims to support original-public-meaning originalism, but as applied his heuristic is to increase in the force of law, his conception of liberty because that’s what the Founders wanted. Such heuristic seems to me to be the very worst of original intent.

      “But once you open the door to construction, as in, adding meat to the bare bones of the text like “equal protection”, you need to specify by what normative basis you’re basing your constructions.”

      Actually no, you don’t, and that’s pretty important. You can just do the best as you can with whatever comes to mind, and you will be better than the “interpretive” alternatives. Or to say it another way, legal scholars will fight that issue among themselves. We don’t have to have a particular dog in that fight to support textualism against free-form interpretations.

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  17. I plead guilty and apologize, Jason. I did not give your post the proper care, and as a weak excuse, my DSL was winking in and out and I fired a reply precipitously.

    Neither did I expect to be engaged substantively.

    And so to back up—again with apologies—I cannot accept your basic premise, “Unwritten understandings aren’t a part of the Constitution.”

    All suppositions come with presuppositions. Americans did not land from Mars one day in 1787 and invent the English language, nor the principles that united them enough to start drafting a constitution in the first place.

    [Unlike the French Revolution, which indeed proceeded as if they’d just come in from Mars, down to redesigning the yardstick and renaming the months of the year.]

    This is not to totally disagree, and support “original intent,” that secret reservations on the part of the framers or ratifiers have any binding effect. They were well aware the 14th could demand interracial marriage because they discussed it; however, if they wanted the 14th to exclude it, they could have.

    However, that the 14th or 15th obliterated all legal notion of gender differences is not self-evident. Despite the sophistries of the present day, the genders are not interchangeable. This is a fact of nature, not law. No constitution could spell out every fact of nature as it’s impractical.

    [It should not be difficult to imagine a time when gorillas are considered “persons.” Afterall, the Constitution doesn’t specify they be “human”. Not difficult to imagine atall.]

    To the rest of my argument, to change a binding law by reinterpretation after the fact, by some method undreamt of at the time of its ratification, through “evolved” meanings of words unthought of at the time, is ex post facto law.

    The Constitution’s ban on ex post facto laws is no mere legal nicety: without such a ban, the rule of law, the philosophy of law, the concept of law—the possibility of law!—have no meaning.

    The Madison quotes above were chosen for good reason, and I seldom see the second one. Although useful as an appeal to authority from the “father of the Constitution,” the arguments stand up quite well without attribution.

    Whatever authority the Constitution possesses comes from the assent of its ratifiers. For the government [usually by judicial fiat] to unilaterally change the meaning of the contract between the people and the states with the federal government voids it, and the possibility of law itself.

    [Again, my apologies for my initial comment, Jason. The DSL was on the fritz and could have gone out for the night at any moment. [It eventually did.] And I really didn’t intend snark as much as wanting to register food for thought before the thread got any older.]

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    • Tom,
      I like your approach to this historicism. Good job.
      The approach which would reinforce this is to attack historicism directly. The English type seems less prevalent in the US today as it appears the German version holds sway. The problem infects not only law (hegel & family) but also theology (schleiermacher, e p sanders, n t wright, npp, etc.).
      It seems today’s historicism has gone postmodern and affects not only history but also language.

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