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Disconnect Part 3.

Lots of the coments have attacked various notions of originalism and argued for the inevitable influence of a Justice's policy views on outcomes in at least close cases. A couple of observations.

First, I do think that a theory of originalism focused on the public meaning of speific words at the time they were used is indeed the correct (indeed, the sole correct) approach to interpreting written instruments, whether they be constitutions, statutes, or contracts. I think that conclusion flows inevitably from the bare fact that we have selected a written instrument to convey and enshrine our rights and obligations.

Second, while I think that a basic historical/textual analysis of the written instrument indeed resolves most of the questions that arise, I have already noted that such an approach does not resolve all close cases. Under those cases I have noted that we have canons (note the proper spelling this time -- I am educable, even if a naturally poor speller) of construction that provide an answer on how to resolve the ambiguity. (The cannons will have to be saved for those instances in which the canons do not adequately resolve an issue that is extremely contentious and cannot subsequently be resolved by the political branches.) I recognize that such canons do not have the inherent certainty or even "correctness" of textual rules, but at any given time they generally have the force of precedent and hence are correct within the particular legal/temporal context in which a given case is decided. Can those canons change over time to lead to different results in ambiguous cases? Of course, but even such changes are mediated by other structural rules such as stare decisis and hence one can ascertain whether a change in canons is "correct" based on the legitimacy of the process and reasoning through which the change is made.

Whatever the canon is at any given time, however, I would argue that its uniform application to all cases is the measure of a jurist's fidelity to the law and to the role of the courts. Whether we apply a liberty-favoring canon such as suggested by Prof. Barnett, or a deferential canon such as not overruling the political branches unless they violate some "clear" constituional command, we should apply them consistently regardless of whose ox is being gored. (I think that answers the commentator who asked whether the consequences of a decision influenced its correctness: The answer is no, the legal correctness of a decision is indeed independant of its effects. That is true of Plessy, Brown, and any other sacred cow one cares to raise on either the right or the left. I am not saying Plessy or Brown was right or wrong legally, just that the answer to the question has nothing to do with whether the results were universally acclaimed or condemned.) If we do not like the result, do not blame it on the jurists, blame it on the law and change the law, by constitutional amendment if need be. The complaint that amending the Constitution is difficult moves me very little. If the consequences of a bad decision are so overwhelming as to get everyone into a lather, you would think that would be sufficient to motivate folks to do the hard work of amending the Constitution. If the real problem is that the public is split on the right answer, though equally vehement on both sides, that strikes me as precisely the sort of situation in which an amendment would be inappropriate and we need to stick to the earlier rules until a sufficient consensus builds for a new rule.

Third, I am perfectly willing to acknowledge that a jurist's policy preferences might influence which canons of construction he or she chooses to endorse and hence to that extent it is relevant. But I think that most canons of construction tend to be very context-specific in terms of whether they will indeed promote or retard a particular policy bent, and hence the influence of policy preferences on canon selection is limited at best. A pro-liberty canon that curtails government power might be pro or anti "rights" depending on what a given piece of legislation says. Where the political branches are creating new rights such as in the civil rights context, such a cannon will work to the detriment of the folks being given new rights and to the benefit of folks being subject to new obligations. Where the law is restricting rights or expanding government intrusion into individual lives, the consequences will be the opposite. While a jurist might try to mak a list of how many prospective results would be favorable or disfavorable to his or her individual policy preferences, that exercise is fraught with uncertainty and not likely to give a policy-concerned jurist much to go on.

Again, my primary criteria is that the canon be applied consistently regardless of substantive area or result. If a jurist applies the canon only when the result is favorable and ignores it other times, then that jurist abandons the judicial role and is rightly subject to criticism. But I think Judge Roberts has made a strong case that he will be ever-vigilant in seeking equal application of the law, outcomes be damned. Folks may not believe him, but he seems credible to me, and I think his answers are a full and complete response to the attempts to probe his policy preferences. (I also disagree with commentators who say that Scalia and Thomas only use their judicial approaches as a mask for policy choice. There are plenty of good examples of them voting contrary to their presumed and sometimes expressed policy preferences. The notion that those are only in areas not important to them is palpably wrong, and I have not seen persuasive examples condemning their consistency in cases where their reults were presumably more to their liking.)

To the extent a jurist does not take the approach I endorse, but instead favors a living or evolving Constitution and the abstract search for new rights (or new powers for the government), then I agree that policy preferences are more likely to influence that jurist's results and hence an inquiry into those preferences is reasonable and likely necessary. And because so many Justices in modern times have taken that approach, Prof. Cross's statistical evidence of ideological bias is hardly surprising, but somewhat misses the point.

If you believe Judge Roberts regarding his jurisprudential approach, further questioning of his policy views is of little or no benefit. Saying that others in the past have used their policy preferences to skew their judicial results is hardly a basis for demanding that Judge Roberts, who professes a different judicial philosophy, answer questions better directed at those others. And I think such questions, by politicizing the role of a Justice and by effectively endorsing such a policy-driven approach, are very destructive. Indeed, it is the invitation to politicizing the decisions of the Court that stands as an indictment of the more open-ended jurisprudences of some justices and argues in favor of a more constrained jurisprudence such as I have described.

If you do not believe Judge Roberts regarding his judicial philosophy, then I suppose that is reason enough to vote against him. But I am not willing to impute such dishonesty to him, and I do not think it reasonable for others to do so.

frankcross (mail):
An impressively expressed but I think naive approach. It's not that most recent justices have been ideological, it's that they all have and it's not just recent, it goes as far back as one can reliably check for ideology.

The trouble is that there is never just one canon. I'm liberty-preferring but not in a universalist way. I.e., there are sometimes that even the most liberty preferring authorize government restraint on liberty. So it is a balance of two canons. The drawing of that balance is ideological.

So I think Roberts is both sincere and insincere. He will try to be non-ideological but will fail, if only for known human psychological practice known as motivated reasoning. But that's not a reason to vote against him, it's merely proof that he's human. The real question is how very ideological he would be, and I'm satisfied that the answer is not terribly.
9.16.2005 12:16pm
Goober (mail):
This is a little dishonest:

I am not saying Plessy or Brown was right or wrong legally....

Coming, as it does, after your belief in:

originalism focused on the public meaning of speific words at the time they were used is indeed the correct (indeed, the sole correct) approach to interpreting written instruments, whether they be constitutions, statutes, or contracts.

The 14th Amendment almost certainly did not mean to the public, at the time of its ratification, that segregation would be unconstitutional, so you are, in fact, saying something about the correctness of Brown and Plessy. As embarrassing as the confirmation hearings this week have been, it is reassuring that our politically accountable branches do get to ask whether a nominee's legal philosophy would preclude Brown, and if not then to show him the door. That's my first point.

My second point: Try a little humility. Very few legal philosophers have gotten very far thinking there was only one way to think about the law, and that all others were incorrect. Very few even thought it worth their time making the case. Judge Posner advocates a law-and-economics approach to many areas that leads to results often very consonant with the more traditional approaches to, say, contract law. Is he necessarily "wrong" to do so?

Third:

Whether we apply a liberty-favoring canon such as suggested by Prof. Barnett, or a deferential canon such as not overruling the political branches unless they violate some "clear" constituional command, we should apply them consistently regardless of whose ox is being gored.

This is remarkably short-sighted. Certainly the First Amendment's restrictions on prior restraint should be applied with the same vigor whether the litigant is a liberal, conservative, housing rights activist or Klansman. And certainly the economic Equal Protection rights of the 14th Amendment should be available to both opticians and optomotrists. But the same degree of deference is not to be found across the various constitutional doctrines; that's why we have different degrees of scrutiny. Surely you can see that some critics are going to find, in the doctrines that we scrutinize facial race-based classifications very carefully but give wide latitude to the political branches in deciding cases of eminent domain, a non-neutral political choice! Perhaps we can find agreement that race-based classifications should be scrutinized at the same level, no matter what your race, and so for gender, so for sexual orientation, so for economic handouts. But the problem of "whose ox is gored" does not appear only within the same classification. Why should it make a difference whether one is classified as a black person, or as a woman, or as a homosexual, or as an optician? And yet it does. So I think your profession of neutrality has some rhetorical appeal but serious analytical deficiencies.

Finally, I'm not sure I believe in the afterlife, but I think there's a special place in the bad part of it for people who think the outcome of Brown v. Board is a mere "policy preference."
9.16.2005 12:31pm
Chris24601 (mail):
"[W]hile I think that a basic historical/textual analysis of the written instrument indeed resolves most of the questions that arise, I have already noted that such an approach does not resolve all close cases. Under those cases I have noted that we have canons ... of construction that provide an answer on how to resolve the ambiguity."

I thought I'd use this as an occasion to advertise my argument for a half-dead, half-living Constitution. I think that the historically-situated text can't ever resolve questions on its own, but only in tandem with certain (perhaps very uncontroversial) facts about the world. In Frege's language, the sense of the historically-situated constitutional language needs the (current) reference-yielding facts to produce conclusions. So, for instance, we might agree that the Privileges or Immunities Clause protects well-established traditions of the rights of citizens (in the common law and elsewhere), but simply disagree about what those traditions are. On my view, we don't need canons to fill in the gap, but reference-yielding facts. The Constitution will be partly dead(because the sense of its historically-situated textual commands will not change) and partly alive (because the reference of its language depends on the sometimes-changing reference-yielding facts).
9.16.2005 12:38pm
Erik Jaffe:
I am not so much naive as idealistic. I recognize that eventhe best intentioned among us can often fail to live up to our ideals. But think it is apropriate and effective to demand certain ideals be explicated and followed as much as possible. It is the expression of ideals and the constant watchfulness for deviations from those ideals that moves the terms of debate and ultimate creates the very constraints that are necessary to the more effective implementation of those ideals. You can already see it in terms of the use of textualism in Suprme Court reasoning, on both the right and the left. While the left may not genuinely agree with textual analysis and be more willing to deviate from it, it has become entrenched as at least one important measure of the legitimacy of of a decision and thus now acts as a constraint upon the more flagrantly open-ended modes of analysis in the past. If more Justices adopt Judge Roberts's professed approach, that too will create a constraint on future decisions, which in some instances simply "won't write." That Justices may occassionally fail at the endeavor to be textualist/originalist as I describe it, or even occasionally try to wrestle their way around an textualist/originalist outcome thatthey do not like does not eliminate the value of having such an approach as the baseline for legitimate decisionmaking. As that baseline becomes better established, the deviations from it can be expected to decrease and the outcry over any such deviations will increase. It is the "social" pressure exerted by such strong norms of jurisprudence that will ultimately assist judges in hewing to their proper roles and in defending their results from those who would criticize them on policy grounds. And such norms provide a competiting "motivation" for jurists who might otherwise fall victim to "motivated reasoning based on policy motivations, thus limiting the inapproriate effect of such natural human tendencies. (You can see a similar phenomenon in Judge Roberts's defense of the lawyer as hired advocate and his unwillingness to be tarred with the views of his clients. That norm is well entrenched in the law and served him well in deflecting the disingenuous questions from some of the Senators, who likely know better, but went their for political effect anyway.

As for competing canons, they certainly exist, and the cahllenge is to prioritize canons into a coherent scheme. That is the essence of being a judge -- being bound by a set of rules that yield a determinative outcome, not merely by a set of rules that always says "balance" a plethora of considerations. That former is law, the latter is not. A jurist committed to law would presumably seek to coordinate canons in a way that explains, ex ante, which ones trump in a conflict.
9.16.2005 12:43pm
Sir Spell Alot:
"Under those cases I have noted that we have canons (note the proper spelling this time -- I am educable, even if a naturally poor speller)..."

Educatable, maybe, but not for long, it seems

" ...of construction that provide an answer on how to resolve the ambiguity. (The cannons will have to be saved for those instances..."

Not to be snarky or anything :)
9.16.2005 12:49pm
Steve:
The argument that the Constitution should be interpreted just like a statute or contract is what I like to call the "bait-and-switch" theory of Constitutional interpretation. Under this theory, the Framers persuaded a majority of Americans to enact the Constitution by dressing it up in broad, sweeping language, complete with open-ended guarantees of rights reserved to the people, and written in deliberately vague language so as to make it acceptable to as many people as possible. Contrast the success of their method with the failure of the recent European constitution, which was indeed written in specific terms like a statute, and was deemed unacceptable across Europe.

But now that we have succeeded in snookering the people into voting yes, says the bait-and-switch theory, we are now entitled to interpret the Constitution in a cramped, unambitious manner, denying the existence of any rights that are not readily apparent from the text itself. Even though the Ninth Amendment, among other things, clearly discredits the literal textualist approach, there are contemporary observers who would rather dismiss that amendment as an "inkblot" rather than acknowledge the evident fact that the people who voted to enact the Constitution did not understand it to be a statute, let alone a page from the CFR.
9.16.2005 12:50pm
SimonD:
I do think that a theory of originalism focused on the public meaning of speific words at the time they were used is indeed the correct (indeed, the sole correct) approach to interpreting written instruments, whether they be constitutions, statutes, or contracts. I think that conclusion flows inevitably from the bare fact that we have selected a written instrument to convey and enshrine our rights and obligations.
Huzzah!! :p

Judge Roberts has answered enough questions for me to form an opinion as to whether he should be confirmed, because he failed the litmus test the instant he said he belived in substantive due process. After that, nothing - not even the "weak" form of originalism-cum-precedent-cum-living constitution philosophy he bantered with Sen. Grassly about could redeem him.

At the risk of sounding like a broken record, while I agree that this was a tactical masterstroke (insofar as the Dems are tearing themselves apart over a lose-lose scenario) on a political level, I think this nomination is a huge disappointment for anyone who supported President Bush based on what now seems to be a misunderstanding of what he meant when he said he considered Scalia and Thomas to be models of what kind of Justice he would appoint. At first, and I know there's at least one other commenter here on Volokh who feels this way, I felt like he'd broken his promise, but the more I think about it, the more I think that actually, we just took at face value that President Bush sees the same qualities in Scalia and Thomas that I do. I look at them and see originalists and textualists; Bush looks at them and sees conservatives who sometimes vote kinda funny (Hamdi, Ashcroft and so on). Thus, Bush has kept his promise, if he actually meant, "I will appoint conservative jurists". It is, of course, ironic that an originalist would be flummoxed over a matter of language, intent and meaning. ;)
9.16.2005 1:00pm
Erik Jaffe:
Sir Spell Alot -- The use of "cannon" that you cite was quite intentional and indeed refers to the weapon, as I think the context of the sentence makes clear. Your broader point that I am only temporarily educable is correct, however -- I mispell canon somewhat later in the piece, and I will leave it to you to find the actual instance of mispelling. Suffice it to say that when I blog (which is rare these days) I balance speed and spelling slightly differently then when I do other legal writing (though I undoubtedly mispell in that other context as well). My own concerns for such aesthetics in part explains why I blog so infrequently. It is simply too time consuming to make my prose perfect.

Steve -- as for the bait and switch, I think you impute to me views that I have not expressed and do not hold. If the Constitution uses expansive language then I think it deserves the same expansive interpretation that such language would have held when it was first used, regardless of what the Framers might have predicted would be the results of such language. I, for one, do not think that the Ninth Amendment is an inkblot and I think a textualist should strive to give substantive meaning to the words used. It is the standard constructive notion that words are presumed to be there for a reason and we should not interpret an instrument to render some words meaningless. My approach is neither inherently narrow or broad, but rathe depends on the narrowness or breadth of the words chosen. Some are indeed expansive and may well provide a textual basis for certain canons of construction of the other parts of the Constitution. The Ninth and Tenth Amendments are good examples of that phenomenon. But the fact that particular words are simply broad in their meaning does not mean that such meaning has to be open-ended and limitless or standardless. Rather, even broad meanings nonetheless contain defined meaning, and hence limits, short of a text that says "You have all rights expressed herein and any others that judges see fit, in their unrestricted discretion, to adopt." That open-ended grant of power indeed would be both textual and effectively limitless, but I would still defend the resulting limitless interpretation as the "correct" one even though I would think it a poor judicial policy decision.
9.16.2005 1:07pm
Martin (mail):
You assert that public meaning based textualism is the only correct approach to constitutions, statutes,and contracts and that this conclusion "flows inevitably from the bare fact that we have selected a written instrument to convey and enshrine our rights and obligations."

I last thought hard about these sorts of issues in the 1980s (and have not kept up with subsequent literature) and in the context of contracts, not constitutions and statutes. (I spent the late 1970s as an attorney at the FTC working largely on consumer issues involving contract terms, and then taught and wrote about contracts and commercial law as a law professor for several years.)

My recollection is that, in the contracts area, the classic legal realists (I was primarily influenced by Karl Llewellyn, perhaps for reasons of charisma partially independent of his quality as a thinker) had a quite powerful (and by no means altogether negative) critique of the idea of "selecting" a written instrument to define rights. The argument was that in different factual contexts parties used written contractual instruments for different purposes. In many cirumstances parties could reasonably be said to have chosen to have the terms of their transaction defined by all of the words of the contract (and, to the extent possible, by nothing else per the parole evidence rule). In other circumstance written contracts were chosen primarily for more limited purposes, such as to memorialize certain specific terms ideosyncratic to the transaction (price, delivery date, etc.) or to integrate the transaction into an organization's administrative control system (through invoice numbers, etc.) and the relationship of the parties all of the terms of the contract was unclear, or was determinable by trade custom, etc.

It seemed to me that this critique did not necessarily justify abandoning contractual textualism (I believe formalism was the commonly used term when I was teaching. I don't no what lingo is used in current literature.) But textualism/formalism, I felt, had to be justified in instrumental terms, and did not simply follow from the choice to employ a writing. Moreover, even if textualism/formalism was the best approach to contract interpretation and enforcement, it had serious costs in terms of consistency with parties' intent and expectation in some cases. (I believe that Llewellyn argued that, at least in some contexts, formalism promoted transactional uncertainty by frequently producing results at variance with business expectations.)

Consistent with this, I thought that some of the most powerful justifications for textualism/formalism in contract law involved arguments that such an approach facilitated, and created incentives for, the choice by parties to use writings that relatively fully and accurately reflected their intended transaction. (I vaguely recall an article by Jackson and Epstein on (old)UCC 2-207 and some stuff by Goetz and/or Scott.) But this sort or reasoning assumes that the relationship between a writing and the underlying transaction can vary widely and cannot simply be taken as a given.

I assume there are analogous issues relating to the meaning of constitutions and statutes, e.g, arising out of Kenneth Arrow type complications of voting by legislatures, legislative posturing, limits on ability to process information, etc.

Having said this, I should acknowledge, again, that my serious knowledge of these issues outside of out-of-date contract scholarship is pretty limited. And, obviously, you one sentence justification of public meaning textualism is just a brief reference to a mass of literature by yourself and others. Moreover, especially with respect to constitutions, certain considerations favoring textualism, having to do with allocation of power, my be much more important than in contract law, so even if the underlying analytical issues are similar, the correct policy result (policy here meaning policy with respect to methods of interpretation) is different.
9.16.2005 1:08pm
alkali (mail) (www):
... we have selected a written instrument to convey and enshrine our rights and obligations.

We did? Did I miss a meeting?
9.16.2005 1:21pm
Goober (mail):
....to advertise my argument for a half-dead, half-living Constitution.

Ooh! Jurisprudential zombies!
9.16.2005 1:32pm
SimonD (www):
Erik,
I, for one, do not think that the Ninth Amendment is an inkblot and I think a textualist should strive to give substantive meaning to the words used. It is the standard constructive notion that words are presumed to be there for a reason and we should not interpret an instrument to render some words meaningless.
Just to clarify, though, per Thomas McAffee, would you agree that holding that the ninth and tenth amendments are federalism provisions DOES give them substantive meaning, or would you contend that the ninth amendment must have some other meaning - a more modern reading, such as the one suggested by Prof. Barnett, that renders it a haven of unenumerated rights - in order for it to have substantive meaning?

Sorry if that wasn't clear, I'm developing a head cold, and losing lucidity rapidly. I guess what I'm saying is, can a provision have "substantive meaning" even if the issue which it addresses - the third amendment, for example - does not seem so pressing in this day and age?
9.16.2005 1:33pm
Erik Jaffe:
Alkali -- yes, you did miss the meeting.

As for theories regarding the continuity of a body politic and its impact on subsequent individuals entering that body politic, that is far too long a discussion for here. Perhaps in some other post, but I doubt it given that it is only of tangential interest. Suffice it to say that I ASSUME such continuity, and if that assumption is flawed, then my conclusions may well be flawed as well. But I cannot take on the entirety of political philosophy in a humble blog chain (notwithstanding accusations regarding my lack of humility).
9.16.2005 1:33pm
Philly lawyer:
I am curious what Mr. Jaffe's approach would be to language that is not only expansive, but seems to embrace the actual making of judgement calls.
For example, the 4th Amendment prohibits "unreasonable' searches and seizures. Does a judge today decide what people in 1789 would have thought unreasonable, or decide what is unreasonable today? One could argue (and I would) that if the framers and voters in 1789 had wanted to prescribe specific rules, they could have done so. (Indeed, in the 4th amendment, there are very specific rules for obtaining warrants.) Instead, by using a word like "unreasonable" it mandates that the judge (or whoever is interpreting) make a judgement call based on the current cirucmstances and facts of the case at hand--which might lead to very different results than what people in 1789 would think reasonable.

It seems that if the framers and voters in 1789 did NOT want later judges/goverment officials deciding for themselves what is "reasonable" they would have included specific rules to define the term. But I am curious to know what Mr. Jaffe (and other readers) think about this.
9.16.2005 1:38pm
Shelby (mail):
IIRC, Thomas Jefferson suggested (for reasons of political continuity) that a new constitutional assembly be held every 30 years to consider wholesale changes to the Constitution. That would create an enormous headache for the legal/judicial profession, and essentially prevent the modern bureaucratic state, but would address the whole "missed the meeting" problem.

As with most of his other wacky ideas, Jefferson got nowhere with this.
9.16.2005 1:38pm
Chris24601 (mail):
Philly lawyer,

One way out of 4A moralizing is to understand "The right of the people to be secure ... against unreasonable searches and seizures" as a reference to traditionally-afforded legal rights, not moral rights. But I'd have to look at the history carefully to see if that's really plausible.
9.16.2005 1:46pm
David Berke:
I will begin by saying that I think the text is primary; I don't ordinarily believe that any interpretation of the Constitution which clearly conflicts with the text is honestly. For example, I don't buy "substantive" "process". That said...

I continue to be unconvinced by the "semantic originalist" method of interpreting the Constitution. I also find those who believe that it is a non-ideological perspective to be lacking in credibility, as it is inherently conservative. By conservative, I mean the strict sense of the word, rather than the modern construction of same, someone who resists change and wants to enshrine the status quo, or better yet, the status quo that existed at some point in the past. If someone wishes to restrict the interpretation to a strict meaning at the time it was written, that is an attempt to restrict change.

I also find, well, ludicrous, the notion that the Framers, a large group of extremely well educated, literate and political men, all failed to realize that (1) the meaning of language changes, and We would not be sure exactly what they meant decades and centuries lately, (2) The problems of #1 would be compounded by choosing to use broad sweeping language (Ninth Amendment, "due process," "unreasonable," "cruel and unusual") which is normative in nature. These were educated men of the 18th Century; they would have seen the change of the English language from numerous classical writers, would have been presented with competing and occasionally contradictory translations of Greek and Roman texts, would have been reasonably familiar with the common law and how it developed...

And yet, Semantic Originalists ask us to ignore broad sweeping and normative language, ask us to assume that the Framers were hopelessly naive and short-sighted, and further that the Framers were so arrogant that they were absolutely certain that the status quo was correct and that just a few years after the Revolution that, natural rights be damned, the United States had reached a state of perfection with respect to Constitutional rights. They ask us to assume, without evidence, that the Framers intended to impose the then current meaning for all eternity, unless the Constitution was amended.

Although I understand the problems of uncertainty posed by other theories, I remain unconvinced that uncertainty in reaching the right results is reason to never try.
9.16.2005 2:02pm
WHerndon (mail):
Though I am in the same general political camp as you, SimonD, I am not the least bit disappointed in the selection of Roberts. He was my clear choice for the court before Bush picked him and he remains so now. I understand your concerns on substantive due process -- that remark caught my ear too -- but I could never disavow him for that reason alone.

In any case, I am sure the debate about due process is quite unfamiliar to our president. Perhaps some of his aides in these matters have opinions, but Mr. Bush primarily seems interesting in naming justices who wont go out of their way to expand the role of the courts. Expecting a big rollback might be politically impossible anyway. Last I checked, there are at least four Republican senators who would reject the sort of justices you would prefer to see on the court.
9.16.2005 2:11pm
SimonD (www):
Thomas Jefferson suggested (for reasons of political continuity) that a new constitutional assembly be held every 30 years to consider wholesale changes to the Constitution. That would create an enormous headache for the legal/judicial profession, and essentially prevent the modern bureaucratic state, but would address the whole "missed the meeting" problem.
Indeed, and if this quote is true, why would a new constitution be needed every thirty years unless Jefferson simply presumed that the Constitution written in 1787 was fixed in meaning? If it morphs and changes according to the evolving standards of decency, there would be no need for a constitutional convention, because the document grows with society.

So Jefferson's suggestion of routine constitutional conventions actually argues for the notion that the Constitution's meaning IS static. Expansive, yes, but at base, static.
9.16.2005 2:53pm
Scipio (mail) (www):
Well, as long as we all believe in the necessary and proper clause, I think we're okay. ;)
9.16.2005 2:55pm
Shelby (mail):
Without attaching labels, I see nothing wrong with applying the then-present meaning of words in the Consitution (or any given law), but reading broad terms broadly. For example, "cruel and unusual" is broad and normative. I disagree with those who insist that it cannot, now or in the future, be read to prohibit the death penalty. However, some terms change in their fundamental meanings. If "welfare" means something essentially different now than in the 1780s, the original meaning should attach; that original meaning is what everyone relied on when they agreed to the Constitution.

I also don't see how we can substitute words with different meanings from those in the original text. If "public purpose" was the intent, that term was available. If Supreme Court precedent has substituted it where "public use" was written, then the precedent is plainly wrong and must be abandoned.
9.16.2005 3:00pm
Curtis Crawford (mail) (www):
I can understand the disappointment of anyone who had hoped that Roberts would be a constitutional originalist, or would give predominant weight to the text as compared to subsequent interpretations. His descriptions (both before and during the confirmation hearings) of his approach to cases, together with his formidable industry, memory and intellect, suggest to me the following hypothesis:

He believes that getting the law applicable to a case right depends on the hard, competent work of many different minds, representing the parties, and on the court. They play a kind of card game, in which the cards are selected facts, characterizations of the facts, parts of statutes and/or the constitution, precedents, authoritative commentary. Statutory or constitutional language will be significant, but so will the facts and results of (possibly a great many} previous cases. The participant, whether advocate or judge, whose mind holds the most pertinent cards has an advantage. But the decision will result from the clash and cooperation of many minds. The best assurance of a good decision is hard work in finding appropriate cards, and intelligence and fairness in weighing them.

He is deluded if he thinks it possible for judges to be completely unaffected by their moral or political preferences in their search for cards or their deliberation concerning them. But there are great personal differences in the amount of such bias, and he may be one of those in whom it is minor.
9.16.2005 3:05pm
SimonD (www):
Last I checked, there are at least four Republican senators who would reject the sort of justices you would prefer to see on the court.
Oh, I think there are more than four. You have only to look at the budget to see how much the Congressional GOP has drunk the big government kool-aid. What we have in Washington right now is a group of people who got to power critisizing big government, federal intrusion into state prerogatives and big spending, and then realized that, wow! This bringing home the bacon thing really works to keep our poll numbers up in our districts! And when it's Texas politicians saying what Massachusetts schools should teach, rather than Massachusetts politicians telling Texas schools what to teach, this federal power is actually kind of neat!

So I really think there are plenty of Republicans in the Senate right now who would reject an originalist Judge if they understood the consequences. Jack Balkin wrote a few weeks ago that no-one wants to go back to the original meaning of the constitution. He was wrong, but I would be willing to say that there are very, very few people in the Congressional Republican Party who would disagree with him. There's no point in blaming it on Specter, Snowe, Collins and Chaffee, because once you've bought into substantive due process, the only question is, whether we like the outcomes that this person will produce for us. Judge Ginsburg got the democrats' votes because she would deliver outcomes they liked; Judge Roberts will get our party's votes because he will deliver outcomes we like. And I'm not saying that I will disagree with the results Robets reaches, under the rubric that even a broken watch is right twice a day. I'm just concerned that once we start accepting as legitimate the idea that Judges are measured by outcomes - and this is written all over the democrats hearings performances, that they measure this nominee in no terms other than outcomes - then we are going down a very, very dark road, and frankly, I'm terrified of where that road leads.

I hate to say it, but Bork was right a decade ago, and Scalia has said much the same thing - that this doctrine will destroy the constitution.
9.16.2005 3:09pm
SimonD (www):
For example, "cruel and unusual" is broad and normative. I disagree with those who insist that it cannot, now or in the future, be read to prohibit the death penalty.
I disagree with this slightly, to the following extent. I don't think that the death penalty as a punishment can ever, per se, be unconstitutional. However, I do think that specific methods of applying the death penalty could qualify as cruel and unusual, and I would submit that I suspect that neither the gas chamber nor the electric chair could pass muster.
9.16.2005 3:12pm
William D. Tanksley, Jr (mail):

They ask us to assume, without evidence, that the Framers intended to impose the then current meaning for all eternity, unless the Constitution was amended.


That "unless the Constitution was amended" is a pretty big gap in your theory, isn't it? The fact that they included explicit provisions for amendment (and immediately used them, even though many of them believed that the amendments weren't actually needed to secure rights) very clearly indicates that they expected amendments.

So... I'm more than a little puzzled by your claim that we ask you to believe "without evidence". The only possible evidence is what the authors wrote -- and you insist that what they wrote means whatever you personally want it to mean. There's plenty of evidence, both in the Constitution, in papers written about it, and in judgements rendered after it...

-Billy
9.16.2005 3:53pm
NickM (mail) (www):
The problem with "original public meaning" is that the same words can end up having different meanings, depending on when they were adopted. If due process did not have the same meaning in 1789 as in 1867, then the due process clauses applicable to the federal government and to the states impose different obligations - and if a federal statute were passed today that reiterated the text of the due process clause, it could have an entirely new meaning that might impose new obligations on the federal government (or the state governments if it were an exercise of Amend XIV, § 5 power). I believe that "current public meaning" is a more appropriate touchstone for constitutional interpretation. This does not turn the Ninth Amendment, among other provisions, into any more of an open-ended inquiry that the "original public meaning" method does, because that Amendment speaks to rights being retained by the states and/or the people, which means it refers only to matters generally already considered at that time to be a right - you can't retain something you did not already have. It is quite possible that marital privacy, the right to determine the education offered to one's children, and many of the other early substantive due process findings of rights would appropriately be located here - and the question would turn on historical legal analysis.

Nick
9.16.2005 4:10pm
alkali (mail) (www):
Alkali -- yes, you did miss the meeting. As for theories regarding the continuity of a body politic and its impact on subsequent individuals entering that body politic, that is far too long a discussion for here.

Well, that's exactly the problem with saying that your methodological conclusion "flows inevitably from the bare fact" that there is a written constitution. It very clearly doesn't flow inevitably; as you acknowledge, there's a whole apparatus of political philosophy -- premises, argument, etc. -- that's necessary to that conclusion, and lots of that apparatus is open for discussion.

That doesn't mean your conclusion isn't ultimately correct, of course, but it does suggest you shouldn't be surprised that everyone isn't on board with it.
9.16.2005 4:12pm
David Berke:
William,

I really dislike it when people attribute arguments to me that I didn't make. I never said it should mean what I want it to mean, keep the gross exaggerations and strawmen to yourself.

The use of normative and expansive language is logically inconsistent with the intention to freeze the meaning at that precise time.

The mere fact that amendments were available and expected does not mean that it was expected that they would be enacted every single time the precise meaning (which, with normative value judgments, is essentially impossible to determine) of a given word was not certain to fit a given circumstance.

Your logic appears to be circular; we should know that they wanted us to utilize this indeterminable precise meaning of a normative phrase because they wrote the phrase?
9.16.2005 4:14pm
Shelby (mail):
The problem with "original public meaning" is that the same words can end up having different meanings, depending on when they were adopted.

Perhaps, but I don't see that as a serious problem. Language changes in unpredictable ways; the (legal) point of writing something down is to fix (make permanent) the agreed terms. Courts and lawyers can certainly manage terms having somewhat different meanings in different contexts, but those different meanings need an anchor to reality.
9.16.2005 4:18pm
SimonD (www):
This does not turn the Ninth Amendment, among other provisions, into any more of an open-ended inquiry that the "original public meaning" method does, because that Amendment speaks to rights being retained by the states and/or the people, which means it refers only to matters generally already considered at that time to be a right - you can't retain something you did not already have. It is quite possible that marital privacy, the right to determine the education offered to one's children, and many of the other early substantive due process findings of rights would appropriately be located here
This is essentially the argument advanced in the J.D. Droddy essay I was talking about a couple of days ago - Originalist Justification and the Methodology of Unenumerated Rights, 1999 L. Rev. M.S.U.-D.C.L. 809. As I said then, it's a pretty sensible, intelligent, reasonable and plausible argument - I just don't buy it. ;)
9.16.2005 4:44pm
Chris24601 (mail):
David Berke,

"The use of normative and expansive language is logically inconsistent with the intention to freeze the meaning at that precise time."

That doesn't seem right to me. Suppose that, contrary to my very tentative suggestion above, "unreasonable" was intended in 1789/91 to be used in the 4A as a moral, normative term. To understand what the 4A forbids, we must therefore investigate moral reality, as I see it. But later, for odd reasons, people start using "unreasonable" to mean "contrary to what Reason magazine thinks." That later change in how language is used shouldn't change how we understand the 4A command. Rather, the status of the constitutional language is fixed--and perhaps, fixed as moral or otherwise normative in content--at the time at which the constitutional command is enacted. If it's moral language, it stays moral language, and we have to find out the reference-yielding (moral) facts of the matter in order to find out the particular things the language of the command picks out.
9.16.2005 4:54pm
David Berke:
Chris,

Two points, I think.

The first, for clarity, to describe the scope of my point:
My comment regarding normative language is only meant to apply to that part of the Constitution which uses normative terminology (unusual, reasonable, "Due process"). Therefore, it simply does not apply to the large majority of the Constitution. This is why I started my post with the comment that I believe the text is primary. In this I am in agreement with those who believe that some portions of the Constituion tend to lend themselves to a relatively straightforward interpretation, and others less so.

I do not believe we are substantially in disagreement with respect to your point about change in language. I disagree that the language is "moral" rather than normative, but that is a relative quibble. The mere fact that there is some available interpretation of a given phrase as not normative does not mean that definition should be used. As you have stated, understanding that the phrase was meant to be normative, we must now find out the reference-yielding facts (attempt to determine the norm by my example, moral/norm by yours) in order to determine what the Constitution requires.

Essentially, there is a difference between freezing a precise meaning and freezing the basis from which the meaning can be determined.
9.16.2005 5:52pm
aslanfan (mail):
Ill give a shiny new quarter to anyone who can cite a source demonstrating that Bush said he would use Scalia and Thomas as “models” for nominees. I know he has said he respects Scalia. I know it’s been reported a gazillion times that he has said he would use S&T as models. But I don’t think he ever said it. It’s an urban myth. Transcript cite anyone?
9.16.2005 6:34pm
Ken Willis (mail):
To those who support a "living" Constitution with all of its throbing, emanating prenumbras, Walter E. Williams of George Mason University has a good question for you. He asks if you would be willing to play poker with him and have the rules be "living."
9.16.2005 7:09pm
Goober (mail):
Huh. Would Professor Williams or you be willing to defend the position that whether the Constitution prohibits segregation, protects abortion, or permits affirmative action (whether you answer yes or no to any of them) is of moral importance analogous to that of the betting limits before the turn?
9.16.2005 7:26pm
David Berke:
Ken,

Get back to me with this remark after you show me where in the rules of Poker (any game in Hoyle's book of Poker designated as a Poker game will suffice) it mentions "due process" or "unusual" or other unlisted rules.

The notion of a living Constitution does not require "penumbras" any more than Scalia's Semantic Originalism requires that the First Amendment be limited to speech, and not apply to writings, pictures, music, or song.
9.16.2005 10:44pm
dk35 (mail):
Erik's comment is funny, since Scalia's policy preference (i.e. prediliction to oppress women and gay bash) seem directly linked to his opinions in women's rights and gay rights cases.

Breyer seems much more likely to rule on an intellectual, rather than a bigoted, level, despite the fact that he has a different view of he constitution than Erik.
9.17.2005 1:18am
SimonD (www):
Scalia's policy preference (i.e. prediliction to oppress women and gay bash) seem directly linked to his opinions in women's rights and gay rights cases.
I'm not going to defend Scalia on the charge that he's a homophone. I think he probably is. Not that it really matters, of course - I don't think there's a right to sodomy in the constitution, only a requirement that any laws against it that a state might make apply equally to all persons - but I'll grant you he's probably a homophobe. Which cases do you have in mind to argue that he has a "prediliction to oppress women"? And if he did, is it likely that Ruth Ginsburg - the arch liberal feminist if there ever was one - would be friends with him?
9.17.2005 2:18am
David Berke:
SimonD,

Odd question. Tell me if I'm wrong, but I understood that Scalia was actually friends with her husband, who is considerably more conservative?
9.17.2005 3:44am
dk35 (mail):
Well, with regards to the implementation of his "policy preferences" to oppress women, how about Scalia's abortion rights related dissents? Seems pretty straightforward to me.
9.17.2005 11:27am
Jam (mail) (www):
Are contracts interpreted by a "living document" or "original intent" standards. Or for that matter, poker playing?
9.17.2005 2:16pm
Ken Willis (mail):
Goober says:

Huh. Would Professor Williams or you be willing to defend the position that whether the Constitution prohibits segregation, protects abortion, or permits affirmative action (whether you answer yes or no to any of them) is of moral importance analogous to that of the betting limits before the turn?


I don't think the supposed moral importance of these issues, or any issue, justifies the subterfuge of "living constitution" to hide and try to justify the morally base practice of trying to get around procedures and safeguards for amendment which are expressly set forth in the Consitution.
9.17.2005 2:40pm
Ken Willis (mail):
David Berke said:

Ken,

Get back to me with this remark after you show me where in the rules of Poker (any game in Hoyle's book of Poker designated as a Poker game will suffice) it mentions "due process" or "unusual" or other unlisted rules.

The notion of a living Constitution does not require "penumbras" any more than Scalia's Semantic Originalism requires that the First Amendment be limited to speech, and not apply to writings, pictures, music, or song.


The two words in the above quote from David Berke which fascinate me the most are "unlisted rules." That is what "the notion of a living Constitution" comes down to. Presumably, these "unlisted rules" are those which only the annointed cognoscenti know about. We unwary commoners must wait for you to tell us these rules, after it is too late for us to avoid their trap.

I don't understand your comment about the first amendment. Who has ever doubted that speech includes "writings, pictures, music, or song"? That it does is not an "unwritten rule" since ordinary common sense is all that is required to know that it does.
9.17.2005 2:59pm
SimonD (www):
David:
Odd question. Tell me if I'm wrong, but I understood that Scalia was actually friends with her husband, who is considerably more conservative?
By all of the accounts I've read, Scalia and Ginsburg have been close friends since they were on the DC circuit. IIRC, Mark Tushnet gives this a decent amount of treatment in A Court Divided, and mostly every other commentary I've read on the court's interpersonal dynamics seems to comment on Scalia and Ginsburg's friendship. I don't think we're yet so far gone that a liberal and a conservative can't be friends. ;)

DK35:
Well, with regards to the implementation of his "policy preferences" to oppress women, how about Scalia's abortion rights related dissents? Seems pretty straightforward to me.
The problem with that viewpoint is that it rests on two utterly false presumptions.

The first is the standard liberal presumption that anyone who is pro-life must be a mysoginist; this is ably rebutted by the fact that a substantial number of women are pro-life. Are you telling me that John Roberts' wife is a mysoginist? Or better yet, are you telling me that my wife - who is far more bluntly pro-life than I am - is a mysoginist? Being pro-life is s statement that a child's life has worth that should be considered, not that a woman's life does not.

The second is that it is perfectly possible to be pro-choice and to oppose Roe and its progeny. Correct me if I'm wrong, but didn't no lesser figure than John Hart Ely write an essay tearing Roe to shreds? Hasn't even Justice Ginsburg questioned Roe's holding? And those are people who wouldn't normally be expected to rip into the living constitution! The fact is, whether you are pro-choice or pro-life is irrelevant; there is no "right to an abortion" in the constitution, as pro-choice folks would desires, there is no "right to life" in the constitution, as pro-life folks would desire, and there is no power for the Federal government to make a law prohibiting abortion or protecting the right to one. Period. Any opinion of the court that says otherwise is is flat-out making it up. That sucks, of course, because if you're pro-life, you rally, really want to find a right to life in the consitution, or a way to uphold the federal partial birth abortion ban, but the blunt fact is, my first loyalty is to the constitution, and the constitution says no such thing.

It is, and has always been, a question for the state legislatures. My personal views on abortion have absolutely nothing to do with my view on whether it is constitutional, and they don't make me a mysoginist any more than they make my wife a mysoginist, any more than Scalia's views on abortion make him a mysoginist.

Liberals always bemoan the FauxNews tendancy to say that anyone who disagrees with the GOP party line "hates America", and yet, they do exactly the same thing about abortion. Anyone who questions the wisdom of a species slaughtering its young automatically "hates women". You're all familiar, I take it, with the Orwellian concept of Doublethink? ;)
9.17.2005 3:00pm
David Berke:
Ken Willis,

"The two words in the above quote from David Berke which fascinate me the most are "unlisted rules." That is what "the notion of a living Constitution" comes down to."

I'm sorry, I thought it was obvious. The 9th Amendment, an entity which exists independent of any notion of the living Constitution, was my reference point. I hope this addresses the remainder of your unnecessarily adversarial comment.

Technically, Ken, Music and pictures are not speech. For that matter, nor is writing. However, it is clear from the context and the understanding of pretty much any reasonable person, that the Framers meant more than simply speech. A strict textualist who refused to look any further or consider logic could (although he would be widely recognized as an idiot) decide otherwise.
9.17.2005 3:06pm
Ken Willis (mail):
Jam says:

Are contracts interpreted by a "living document" or "original intent" standards. Or for that matter, poker playing?


The answer is yes and no, I guess, at least for contracts. The traditional rule of construction that extrinsic evidence is not permitted to explain or alter the terms of an unambiguous contract is still in effect for most contracts. But, due to the supposed wisdom of Karl Lewellyn, not for contracts which fall under Article 2 of the UCC.

As to poker playing, few attemtpts have ever been made to apply "living document" or "original intent" standards to the rules. In those few instances where this has been tried the result has usually been a gun fight, thus discouraging further attempts.
9.17.2005 3:09pm
Ken Willis (mail):
David Berke, I don't mean to be "unnecessarily adversarial" and I certainly meant no offense. I just don't know of anyone ever making any claim that what one might say in writing, in a song, or in a picture would, for that reason alone, lose its protection as speech. Surely, the word "speech" in the constext of the First Amendment must have been commonly understood to include those things, both now and at the time the First Amendment was adopted.

Unfortunatley, there are some people is high places these days that think a political statement on television is not speech if the owner of the television station made you pay for the time.
9.17.2005 3:20pm
Challenge:
" this is ably rebutted by the fact that a substantial number of women are pro-life."

Actually, I believe women are more likely to be pro-life than men. Abortion is usually an issue far from a man's experience and conern. I believe women on both sides of the issue feel more strongly than men generally do.

The misogynist smear is interesting. Because one would expect a womanizer, a man who uses women sexually and leaves them, to support abortion. Abortion has increased sexual access to women, and a man only interested in women as sexual objects would be quite irrational to oppose abortion rights.
9.18.2005 4:18am
dk35 (mail):
SimonD:

My response to your comments is this. With regard to women opposing abortion, I would put them into two general categories. Firstly, there are women who say that they themselves would never have an abortion. That is, of course, a personal choice they have made. Everyone is entitled to their own choice over elective surgeries on their own bodies...that is the entire point of the abortion rights movement. It is the second category, which seems to include Mr. Roberts' wife, that wants to curb the rights of other women. There is no excuse to this kind of behavior. I suspect most do so as a result of their religious views. Religion, of course, has historically deluded people and let to great injustices, and this is sadly one more example thereof. Religion has sadly resulted in causing some women (and men) to take anti-woman positions.

With regard to your second point, I think you have misunderstood my criticism of mysoginists like Scalia with a support for the exact wording of Roe v. Wade. I think that most enlightened people understand that abortion rights are, in fact, based on the obvious rationale that 1) a fetus is not a person (a statement that no honest originalist could possibly disagree with) and 2) women should have the right to elective surgery. Roe v. Wade is a compromise that leads to the same results in a more "polite" manner. So, acknowledging that Roe is something of a legal fiction is essentially irrelevant to the argument that Scalia and the like are misogynists.
9.18.2005 11:20am
Challenge:
Dk35,

I am disgusted by your choice not to debate on the merits, but to simply insert your morality and claim it's The Right Answer.

Your positions is more or less: Abortion is sacrosanct, fetuses are "non-persons," and those who wish to assert otherwise are misogynists or "anti-woman" or motivated by irrational religious belief.

I do not believe all abortions are the equivalent to murder or even that all abortions are immoral. But I would like you to consider your approach, your dismissal of fetal life, and contrast it with the ugly reality that you support in the name of "progress" and "women's rights."

Before you accuse others of mindless devotion to idealogy, maybe you should confront what your idealogy allows.

ELECTIVE SURGERY? Nice euphemism.

http://www.precious-life.com/Abortion_Photos.htm
9.18.2005 7:49pm
dk35 (mail):
Challenge,

Debating on the merits is exactly what I did. SimonD made points, and I addressed them directly.

I'm sorry you disagree, but my opinion is that fetuses are non-persons (please tell me where in the constitution you would find any disagreement with that). My opinion is also that religious belief is irrational, and those that try to force others to conform to their own religious beliefs is also unconstitutional.

Also, I am of the opinion that abortion is elective surgery. I feel no reason to say otherwise, despite your attempt to denigrate my opinion with your capitalization of the term.
9.18.2005 9:13pm
Challenge:
Elective surgery that, incidentally, happens to terminate another human life, sometimes in fairly advanced stages (certainly comparable to newborns in late second trimester and third trimester abortions). Please see the link I posted, then comfort yourself with the notion that it's just "elective surgery."

I do not believe fetuses are "persons" as defined by the Constitition. But niether do I believe there is a right to elective surgery, especially non-therapeutic elective surgery. A state could, in my view, outlaw breast implants, for example.
9.18.2005 10:40pm
SimonD (www):
DK35,
It is the second category, which seems to include Mr. Roberts' wife, that wants to curb the rights of other women. There is no excuse to this kind of behavior.
While I reject the framing of your point, what I would say is that there is a perfectly reasonable reason (not excuse, which implies excusing an otherwise indefensible position) for being pro-life, just as there is a perfectly reasonable reason (again, reason, not excuse) for being pro-choice.

If you believe that what is growing in a mother's womb is a lifeless collection of protoplasm, then of course you should be pro-choice. If you believe that and you're still anti-abortion, then yes, you are a mysoginist and you're just out to tell women what they can and can't do with their bodies. There is no excuse for that. But most people who believe that it's not a child, that it's not a life, are at very least tacitly pro-choice, and I don't castigate most pro-choice folks too much, because their viewpoint is perfectly reasonable, logical and internally consistent within its own paradigm.

However, if you don't believe that what is growing in a mother's womb is a lifeless collection of protoplasm, if you believe that it's a child, that it's a life, or even if you have any doubts that it might be, then it seems to me that the ONLY morally defensible position to take is to be pro-life. And when I say pro-life, what I mean is, not that the life and health of the mother are irrelevant, or even just less important than the life of the child. What I mean is, the recognition that there are TWO lives, that it ISN'T just a matter of the mother's choice. I believe very strongly that women have the right to choose right up to the moment that the choice ceases to just be about her life. Problem is, when is that? I don't know, but because we must err on the side of caution, we must presume implantation. In my view, that makes contraception okay, it makes the morning after pill okay, but abortion is not.

If science ever proves that the child is not alive until birth, then I will support abortion. But so far, since science is unable to provide such support, and since the avilable science suggests at least the strong possibility that life begins extremely early in gestation (even taking the presence of brainwaves an a heartbeat as being merely indicia of the potentiallity for life, rather than evidence for the proposition), I must elect to be pro-life. That does not make me anti-woman. It makes me pro-woman, whether the woman is born or not. I do not support infanticide, and if the child is alive, as I believe all indications point to, then that is precisely what abortion constitutes.

This was actually the moment when John Kerry lost me 100%. I was still on the fence (I'm a Republican; I didn't like Bush then, I don't like Bush now, but I care about what kind of Judges get appointed, and I believe that the kind of judges Kerry would appoint will destroy the constitution that I swore to support and defend), but the moment he said that he believed that abortion was murder but he didn't care and wouldn't do anything about it, I knew that this guy had to be defeated, no matter what.

I must respectfully disagree with both your rationale and your conclusions.
9.19.2005 12:11pm