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Is Matthew Yglesias A Member of the Federalist Society?:
Will Baude takes a look.
Steve:
The point is cute, and I think almost everyone is guilty of supporting the precedents they like and wanting to get rid of the precedents they don't like.

There is a difference between original intent and original understanding, though, which seems to have been glossed over a tad.
7.8.2005 4:34pm
Justin (mail):
The point is even cuter when you realize that liberal statutory interpretation of the LAW "is" originalist with some structuralism thrown in. It's conservatives who want to ignore the original intent of the law, to cater to an imaginary author and an imaginary reader.

On Constitutional grounds, most liberals believe that Constitution is supra- or meta- law, that the ORIGINAL INTENT of it was not to have the original application of it stay intact but it to develop and structure the government as times change.

There's no contradiction, Will. But cute.
7.8.2005 4:44pm
William Baude (mail) (www):
Contradiction? Certainly not. I think Yglesias genuinely has become a heavy-precedent originalist. Which is surely a sign of how far things have come.
7.8.2005 4:58pm
Justin (mail):
Will, a lesson I learned when I was a little kid was that if you think someone's saying something that's offensive, shocking, or out of character, have the decency and respect to ask him if he meant it. You're twisting at straws, as both Steve and I have put forth a MUCH more likely interpretation of the paragraph you take completely out of context. As someone who regularly converses with MY, don't you have the common courtesy to ask him if that's what he meant before pushing the hypocrite label on him and hoping nobody notices the lack of evidence?
7.8.2005 5:11pm
Anon:
Justin--I assume you're referring to those liberals who don't think that the original intent concept is incoherent or that original intent is unknown and unknowable. I'm not sure I'd say "most".
7.8.2005 5:14pm
Steve:
Matt is not a lawyer, is he? I'm not sure how much effort I really want to put into parsing the jurisprudential philosophy of, say, Dr. Phil.
7.8.2005 5:19pm
Justin (mail):
Anon, I stand by the term most. Thanks, though.
7.8.2005 5:38pm
Tumbling Dice (mail):
It is a stretch to say that liberals embrace "original intent" when it comes to applying statutory law.

The problem liberal jurists run into is that the clear meaning of the statute often does not support the outcome desired. It is at this point that they dig into the records of floor debates, etc. (none of which, of course, is law) to support some interpretation of a statute which is, at best, strained.

However, they object to this sort of approach when it comes to interpreting a Constitution which in general is a purposely broad set of governing principles.

Comparing a judge's duty when interpreting a statute v. interpreting a constitutional provision is a non-starter.
7.8.2005 5:40pm
Justin (mail):
Tumbling, that's not a response, that's a bland accusation that can be turned around and has. Anyone can say "my opponents claim to have a set of beliefs, but in truth they're full of it" without pointing to any obvious evidence whatsoever.

What's amusing, in the ESA case where Scalia tried to make the same claim you did, he completely erred on the actual facts of the legislative history (which has been subsequently backed up repeatedly). When Easterbrook wrote the In Re Sinclair decision, stating how more reliable the text is compared ANY legislative history in determining what Congress "actually meant", it turned out that the text was manipulated by an unelected staffer without the knowledge of 99% of Congress.

Nor can you back up your claim that liberal hypocracy abounds with any significant caselaw. Of course, hypocracy is natural in some level on any broad theory, and one would expect over time for both liberals and conservatives to answer questions that are open "their way". But when Scalia states he has "THE MEANING" of "other valuable minerals" in a complex early 20th century land grant statute, because that meaning is clear as day, he's being silly. He's taking his preferred meaning and deciding that this is a superior choice than the meaning that Congress intended (Bedroc).
7.8.2005 5:58pm
Andy Freeman (mail):
> it turned out that the text was manipulated by an unelected staffer without the knowledge of 99% of Congress.

However, such text is distinguished by having been voted on. They may not have read it, they may have been drunk, but they did vote on it.

Note that "they did vote on it" is one of the few standards that is subject to "they can vote it out".
7.8.2005 8:04pm
dred (mail):
Mr. Yglesias: "When an issue is litigated for the first time, the best way to preserve this value is to do the best one can to stick to the original understanding of what the law said."

Founding Father John Adams: "frequent recurrence to the fundamental principles of the constitution...[is] absolutely necessary to preserve the advantages of liberty and to maintain a free government...The people have a right to require of their lawgivers and magistrates an exact and constate observance of them."

Thus, Yglesias and Adams together express the faith that underlies the decision to put a constituion in writing. The constitution was put in writing because because the document was meant to be adhereed to by the government.
7.8.2005 10:22pm
Tumbling Dice (mail):
Justin -

Andy beat me to the punch, but points out the critical flaw in your "argument" against demanding that the legislative branch be the sole source of legislation duly enacted.

I won't waste my time citing to you the innumberable instances where liberal judges have ruled that a statute means something quite different than the clear meaning of the text, justifying it with comments from the Congressional record.

You are obviously the type that could have the evidence right in front of your face and would argue that it isn't so. Why waste my time?
7.8.2005 10:36pm
Dwilkers (mail):
Actually if you read Yglesias for a while you find he is far from a loony lefty. I've found his posts over time to be filled with references to the need for economic incentive for example.

It doesn't surprise me that he wrote this, although whether he recognizes the connection between what he wrote and conservative philosophy is another question.

Its really the reason I read his posts. Its funny though if you read his site long enough you'll see his audience rein him back into the fold from time to time.
7.9.2005 10:54am
Ron:
Are there any major SCOTUS decisions at this point in time that liberals would like overturned ?


I can't think of anything serious, except perhaps declarative stuff like "one nation under God".
7.10.2005 12:19am
Justin (mail):
Dice and Andy,

I'm not going to dive off the starting point of a debate that has been WELL traversed by serious academics on both sides much brighter than me. Whether text can have any meaning other than that of what the writer "intended" to do, and what the best manner of searching for that intent is are difficult questions that do not pose open and shut answers. I suggest you start with Prakash and Alexander's piece in the San Diego Law Review, and a piece in the Michigan Law Review with a name such as "The Chaotic Psuedotext" (someone help me out here?) and examine other issues on the topic if you are interested in the broader topic. But simply asserting in an open philosophical question one side of a broad and multidimensional discussion, without bringing in any rebuttals to the oft-brought objections to that side, seems unconvincing at a minimum.
7.11.2005 11:41am
Justin (mail):
Ron

Alexander v. Sandoval
Alabama v. Garrett
Hans v Louisiana
San Antonio v Rodriguez


off the top of my head, those are just the most obvious 4. This excludes the Terry line of cases that have eviscerated any power into the 5th amendment (according to liberals, remember the context of your question), much of the takings/compensation caselaw involving environmental protections and zoning, a significant portion of habeus restrictions, the minimum requirements under the constitution for adequate representation in criminal defense, etc etc etc
7.11.2005 11:45am