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"Underlying Principles" and Original Meaning:
Jon Rowe has an interesting post here on original meaning interpretation. In particular, he responds to arguments based on "the Constitution says nothing about X" and discusses Jack Balkin's recent posts in which Jack seems to be warming up to originalism.

I do have one caution about Jack's appeal to what he calls the "underlying principles" of the text. When the text is vague, appealing to the underlying principles to determine whether or not it covers a particular situation is appropriate and inevitable. But what is not kosher is to dive beneath the surface of the text to ferret out the "underlying principles" and then resurface somewhere else entirely. This is a standard technique by which the text itself can be replaced with the interpreter's version of the "underlying principles" that may even contradict the text itself.

What is appropriate is using the principles underlying the text to interpret its reach, when that reach is in doubt. In other words, when you dive beneath the surface to find the "underlying principles" you must reemerge in the text itself and apply the text (not the principle) to the facts of a particular case.

Here is another way to put the point: All wordings can be vague depending on the situation in which it is being applied. But where the text is not vague, an appeal to underlying principles should not be used to avoid the application of the text to the facts at hand.

For example, that an "underlying purpose" of the Second Amendment (as evidenced textually by the preface to the right to keep and bear arms) was to preserve the conditions that made possible a well-regulated militia MIGHT be used to influence the application of the right to some factual situations at its margins. But that underlying purpose cannot properly be used to undermine the existence of the right itself where the application of the right is clear. Or the fact that an underlying purpose of the First Amendment was to protect political speech should not be used to undermine the protection of political speech on the grounds that this purpose is best served by restrictions on the political speech of some in order that others better be heard.

Among other reasons for rejecting this move is (1) that the right enunciated in the text is likely to be under- or over-inclusive of its underlying principle, but this was the textual means chosen to accomplish this end. (2) There may be other purposes served by the textual provision. And (3) the exact scope of the underlying purpose is highly uncertain and subject to manipulation by interpreters.

I do not think that Akhil Amar's appeal to "first principles" is committing this move. While I am not sure whether Jack is actually doing this--in fact it looks like he is not--certainly others do. Larry Lessig's "translation theory," for example, can easily be used this way and has been.

My purpose is to identify a potential switch away from original meaning in the ostensible name of original meaning by appealing not to the text, but to the unwritten principles underlying the text, and thereby obviating the text itself. This is a subtle move that an originalist committed to a written constitution should be aware of and should resist.

Update: A few brief replies to comments before I must run off to class. The Court admits that it's so-called "Eleventh Amendment" jurisprudence is not based on the text of the actual Eleventh Amendment. If the precedent of Hans v. Louisiana (1890) (decided long before the Rehnquist Court) was wrongly decided, so be it. As Akhil stated in his Slate essay, it is entirely proper to criticize originalists for inconsistency with their method. It is an important virtue of originalism that it permits an appeal to evidence so as to detect inconsistency. In this regard, other methods of "interpretation" may well be nonfalsifiable.

As for the Second Amendment, I (not Eugene) said in my original post that underlying principles CAN be used to deal with problems of vagueness requiring constitutional construction. I contended only that they cannot be used to contradict the text. And yes, this is very similar, if not identical to, the parol evidence rule in contract law that permits extrinsic evidence to be used to interpret--but not to contradict--the meaning of a written contract. Ambiguities (more than one meaning) too can be addressed by historical evidence, but are usually easily reconciled. It is vagueness (whether a term encompasses a particular object) that is the more serious problem.

One final thought: Originalist meaning textualism is not without its difficulties because the attempt to bind governments by written constitutions has inherent difficulties. The important questions are (a) how these difficulties compare with the difficulties of rival approaches to interpretation, and (b) whether the benefits of a written constitution can be maintained when the very persons who are supposed to be bound by a writing can change its meaning to something they think is superior.

WB:
I haven't had a chance to read all of your work on this subject, but how do you think this analysis applies to the Supreme Court's Eleventh Amendment jurisprudence? It seems to me that the text is fairly limited, yet the Supreme Court has expanded its scope based upon what it identifies as assumptions underlying the text.
9.29.2005 9:54am
Phil (mail):
It seems to me that one must be extremely careful when interpreting (and possibly limiting) a right based upon an "underlying purpose" One perverse result would be that unenumerated rights get privileged because they are unmentione din the text. Of course, one uset might be to set the outer limit. For example, if in some circumstances the peoples keeping and bearing arms amde it impossible to have a militia. This might justicy denying people .50 cal machine guns and WMD. Keeping and bearign such arms would render a well regulated militai impossible.
Of course, reading the justification as limiting keeing and bearing only to militia members seems to be an outright anti-historical approach. If the only purpose of the Second Amdt were to guarantee weapons to the state militias thta had just made war on the Union, what are the chances that it would have survived the radical Republican Congress immediately following the Civil War?! This is almost certainly mooted anyway as Akhil Amar (among others) has shown that the normal understanding of "privileges and immunities" included a personal right to own and carry firearms. Unfortuantely, soem people claiming to be originalist, e.g. Bork, have claimed "privileges and immunities" is an inkblot, a silly position for an originalist. It seems to me that there are at least two important rules: (1) the text rules; and (2) text has meaning, even if sometimes difficult to determine (possibly (3) sometimes a judge has to construct the meaning. If this is one of the rules then I think that it is essential that judges be honest about what they are doing)
9.29.2005 10:15am
Neal R. (mail):
WB said:

I haven't had a chance to read all of your work on this subject, but how do you think this analysis applies to the Supreme Court's Eleventh Amendment jurisprudence? It seems to me that the text is fairly limited, yet the Supreme Court has expanded its scope based upon what it identifies as assumptions underlying the text.


That's a great question. Especially since Alden v. Maine essentially severed the principle of sovereign immunity entirely from the Eleventh Amendment (i.e., there is no longer any textual hook whatsoever for sovereign immunity; immunity is just a "fundamental aspect" of state sovereignty). How else could the doctrine prohibit suits against states in state courts?
9.29.2005 10:24am
Joey Joe Joe (mail):
Can your approach be viewed in terms of settled principles of parol evidence? It seems like what you're advocating is the use of parol evidence (historical evidence of original meaning or intent) in order to interpret patent or latent ambiguities in the text. On the other hand, where there is no ambiguity, you seem to be advocating a bar against using parol evidence to add to or change the terms of the document in question.
9.29.2005 10:36am
Justin (mail):
I was reading the first 2 paragraphs and I was thinking, wow, even Amar isn't this conservative. But you beat me to it.

I think while your description of Amar is basically correct, the implication that he agrees with you on the 2nd Amendment may be pushing it. Under Amar's theory, the Constitution's first principle, the 2nd Amendment protected a collective right, not an individual right. That the Constitution meant "right to bear arms" when they said "right to bear arms" cannot mean what "right to bear arms" means today...i.e., cannot mean handguns. That would be allowing social linguistics to determine the meaning of a constitutional amendment. The same concept, in a real sense, as many on here's criticism of the JDP case and the "new meaning" of crule and unusual.
9.29.2005 10:44am
Justin (mail):
PS Using Eugene's example, the biggest flaw in his 2nd Amendment interpretation is that other than protecting his favorite pet cause (the right of small arms for individual use), it is completely unworkable. For instance, if the text must be viewed in terms of underlying principles but in no way should the text be contradicted, then there is simply no way that one can ban the use of big arms, whether they be anthrax, nuclear weaponry, or what not. Furthermore, as even prisoners have constitutional rights (it is clear that a constitutional right to vote would extend it to felons, for instance), it would also make the idea of taking guns away from criminals unconstitutional, especcially since many of them engage in "gang warfare".

In other words, as I mentioned before in regards to federalism, the problem with textualism when viewing the Constitution (as opposed to a statute) is that a) it often fails to give responsible answers to easy questions, and b) it often fails to give any answer to tough questions. Thus, it is often used at leisure (esp. when combined with originalism), for agenda-specific purposes, and then conveniently ignored when the agenda calls for a different, even contrary method of interpretation (i.e., Hans, which is completely valid under the method of interpretation Volokh rejects, but cannot be squared with the one he endorses).
9.29.2005 11:02am
Goober (mail):
Or the fact that an underlying purpose of the First Amendment was to protect political speech should not be used to undermine the protection of political speech on the grounds that this purpose is best served by restrictions on the political speech of some in order that others better be heard.

It's important to recall that the Court wasn't announcing such a principle, but merely determining that such a decision by the political branches to divvy up airtime wasn't a prohibition of speech in violation of the 1st Amendment. I'm sure you can think of other examples (and please, not examples involving the thoroughly undeveloped body of 2nd Amendment jurisprudence), but your 1A case is properly explained as an example of judicial deference. I think everyone (other than a libertarian textualist, perhaps) would recognize that determining what the First Amendment says about how political advertising works is an immensely complicated question, and it's probably not the job nor within the power of the Court to determine all such answers from on high.

Of course, if you see every case handed down by the Court as a matter of "How shall things be?" rather than "What is the Congress and the Executive constitutionally empowered to do?", I suppose it's easier to see judicial activism everywhere. But it doesn't lend clarity to the situation.

WB: Quite; the 11th Amendment is a good point. (Of course, I've never yet met an avowed textualist who's had a problem with that deviation. So perhaps I'm just misreading the text of the Amendment. Perhaps.) Wish I had thought of that.
9.29.2005 11:20am
Alan Cole (mail):
All wordings can be vague depending on the situation in which it is being applied -- i.e., it all depends on what the meaning of is is.

-- Alan Cole, McLean (Fairfax County), Virginia, USA.
9.29.2005 11:39am
Medis:
I think what a lot of people are pointing out is the overbreadth problem: certain Constitutional provisions are written in a way that they are extremely broad (eg, making no law that abridges the freedom of speech, or not denying the equal protection of the law to any person). Everyone seems to agree that at least insofar as these provisions are judicially-enforceable, we have to read some further limitations into them.

So is that "obviating the text itself"? Probably, but what else can we do?

And I think the application of this principle to the Second Amendment is rather obvious. Not infringing the right to keep and bear arms sounds extremely broad ... so broad in fact that almost everyone seems to agree we must read in limits (eg, no nukes). So the ballgame then becomes if nukes are out, then why are handguns in?
9.29.2005 11:39am
Justin (mail):
To chime in again, I've noticed that the average (not the best, but the average) FedSoc alum is equally an advocate of textualism, originalism, judicial deference, and ummm, overturning Kelo (opposition to Kelo can't be determined by ANY of the three principles, though some conservatives, such as Volokh, have defended the decision while disagreeing with the policy).

The problem I have, and I'm open to hearing how this can be resolved outside of a policy driven mindset, is that these three are almost designed to be constantly in conflict with each other. Under originalism, almost nothing that Congress does these days is empowered by the Constitution. Under judicial deference, ANYTHING Congress does these days is empowered by the Constitution. Add textualism to the mix, and it seems like a structualist like myself, who is stuck on "what did the framers mean then?/how does that apply in the modern world" is MUCH more constrained, which explains why liberals like myself can only chuckle when we hear screeds about how we're too dumb or too apathetic to follow the Constitution in any meaningful sense.

I should clarify (and concede), that no system (including structuralism) can interpret a document as old and vague as the Constitution without some possibility of results-oriented manipulation. I should also clarify/concede that, other than my own baseline philosophy to the question "what is law?", there is no particular requirement that structuralism (or any other jurisprudence) is the "correct" way to interpret the Constitution. I'm just tired of the FedSoc winning a rhetorical war on judges based on the concept that somehow they're simply applying the law and others are making it up.
9.29.2005 11:51am
Medis:
Justin,

Are they winning the war with the rhetoric, or just firing up their own troops?
9.29.2005 12:02pm
cpugrud:
For example, that an "underlying purpose" of the Second Amendment (as evidenced textually by the preface to the right to keep and bear arms) was to preserve the conditions that made possible a well-regulated militia MIGHT be used to influence the application of the right to some factual situations at its margins.

As John Roberts pointed out in his confirmation hearing, US v. Miller would agree with your interpretation. The court found that a ban on short barreled shotguns was not a violation of the second amendment because they did not have evidence of short barreled shotguns being issued to soldiers by the military.

Short barreled rifles, machine guns, and handguns are standard issue military arms, and by US v. Miller would be protected for individual ownership and possesion.

It would take a herculean stretch to find Nukes and WMD protected under 2A because these are in no way individual arms. I suggest any invocation of nukes and WMD in regards to 2A is nothing more than scaremongering.

--- Chris Pugrud, Annandale, VA
9.29.2005 12:10pm
Chris24601 (mail):
I agree that we need to discipline the half-living Constitution with the requirement that the binding original meaning be actually expressed in the constitututional text, not merely lie behind it or underneath it. Frege thought that the sense of language is what the language itself conveys. We need the theory of Original Sinn.
9.29.2005 12:33pm
Medis:
Chris,

I'm not saying anyone seriously thinks the 2nd should apply to nukes. But you just supported my point. To rule out nukes, you had to read a limitation into the 2d (where it says just "arms", you read it to be instead "individual arms that are standard-issue for military personnel").

Now compare that with this part of Barnett's post:

"Among other reasons for rejecting this move is (1) that the right enunciated in the text is likely to be under- or over-inclusive of its underlying principle, but this was the textual means chosen to accomplish this end. (2) There may be other purposes served by the textual provision. And (3) the exact scope of the underlying purpose is highly uncertain and subject to manipulation by interpreters."

Personally, I think it is fair to say you just engaged in the sort of move that Barnett said should be rejected: becuse you viewed the right actually enunciated in the text as over-inclusive, you substituted a standard based on the underlying purpose that is highly uncertain and subject to manipulation (eg, I can already imagine the uncertainty over various explosive devices designed to be used by individuals, ranging from grenades to suitcase nukes).

But my point is not to criticize you for doing so. My point is actually that no one really applies Barnett's rule strictly to over-inclusive Constitutional provisions, and we pretty much all implicitly acknowledge that is a good thing.
9.29.2005 12:34pm
juris imprudent (mail):
Medis-

When the 2nd was written there was a well understood distinction between arms and ordnance. The 2nd protects the people's right to possess the former and not the latter. It is plainly silly if not downright mendacious to argue that a nuke falls within the realm of an "arm" versus being ordnance. The use of this is precisely for the purpose you point out - if we can eliminate ANY thing from the scope of the amendment, why can't we eliminate EVERY thing.

As to the earlier post (not yours) about Miller. The Court noted an absence of evidence, i.e. they did not know and remanded the case to the district for evidentiary hearings (which did not take place due to the fact that Miller was by then deceased). While Miller is not particularly clear the thrust certainly seemed to be that if you find evidence that a short-barrel shotgun is militarily useful it's possession would be protected under the 2nd (and thus the NFA would, in that circumstance, be unconstitutional).
9.29.2005 1:12pm
cpugrud:
Medis,

You are correct in that my interpretation was based on my understanding of the definition of arms. The first step of interpretation is defining each of the words. I do not believe that US v. Miller precisely defined "arms", but they set a basis for the definition in noticing the absence of evidence that a short barreled shotgun was a standard military arm, and thus not necessarily subject to 2A protection.

Juris Imprudent,

While I agree that a short barreled shotgun would necessarily be protected under the 2nd, if it was found to a standard military arm, I have concerns that the court may not find the NFA unconstitutional. There is no argument that short barreled rifles, machine guns, and handguns are standard military arms.

The mile wide loophole that the NFA walks through is that the NFA is "just a special tax", completely ignoring the fact that it is a selective tax stamp that is only issued after mountains of paperwork and good luck.

It would be much easier for the court to find the 1986 restrictions on the sale of newly manufactured NFA devices to private parties to be unconstitutional.
9.29.2005 1:41pm
Steph (mail):
"Of course, I've never yet met an avowed textualist who's had a problem with that deviation."

Well you have now.
9.29.2005 2:42pm
Justin (mail):
Sorry for calling you Eugene, Randy :).

I continue to submit that your theory provides little, if any, guidance, to the vast majority of questions that aren't "easy questions" in the first instance. To point to Exhibit A: The 9th and 10th Amendments

I continue, as well, to submit that your theory is not actually falsifiable because text is always vague to a large degree. For instance: "All wordings can be vague depending on the situation in which it is being applied. But where the text is not vague..." tells us that 18th century muskets are surely arms. It tells us nothing about whether handguns (which are not generally developed for the military), nuclear weapons (which are generally developed for the military), or shotguns (who closely resemble 18th century muskets but are used mostly for sport today) are "arms". That ignores the use of absurdity doctrine, which as Thomas has stated, is a cop out. Exhibit B: The Second Amendment

Finally, I continue to submit that even if we accept that your theory, standing alone, is falsifiable, it is useless if a majority of its users also submit to other theories which come to contrary results (i.e. democratic majoritarianism, pure originalism, pure textualism). Exhibit C: Hans (decided through pure Originalism), Bush v Gore ("decided" by pure textualism).
9.29.2005 2:56pm
Justin (mail):
important questions are (a) how these difficulties compare with the difficulties of rival approaches to interpretation

In terms of falsiability, they're equally ineffective. In terms of satisfying the goals of the framers, textualism clearly finishes last, and good arguments could be made for either structuralism or originalism (as Balkin shows, the differences are subtler than one would think).


(b) whether the benefits of a written constitution can be maintained when the very persons who are supposed to be bound by a writing can change its meaning to something they think is superior?

This is not an important question. It is not an important question because it presupposes that any single form of interpretation would, if universally accepted, prevent "the very persons who are supposed to be bound" from changing its meaning. Of course, THAT presupposes that judges in the first place are the people who "are supposed to be bound by a writing" rather than, you know, the government itself (i.e., requires you to approach the problem as a legal realist when legal realism is absent in all your other arguments). If you lose the SECOND presumption, then all (b) does is make democratic majoritarianism look bad (no arguments here, its the least defensible as a jurisprudence in my view).
9.29.2005 3:28pm
Neal R. (mail):
I still want to know the answer to WB's question, which the update didn't really answer: under Randy Barnett's analytical approach, were Hans v. Louisiana and Alden v. Maine wrongly decided?

It seems to me the answer would have to be "yes" on both counts.
9.29.2005 3:38pm
Challenge:
" I'm just tired of the FedSoc winning a rhetorical war on judges based on the concept that somehow they're simply applying the law and others are making it up."

Get used to it. We're right. :)
9.29.2005 4:34pm
Jon Rowe (mail) (www):
Thanks!!
9.29.2005 4:48pm
Clayton E. Cramer (mail) (www):
Justin writes:
Using Eugene's example, the biggest flaw in his 2nd Amendment interpretation is that other than protecting his favorite pet cause (the right of small arms for individual use), it is completely unworkable. For instance, if the text must be viewed in terms of underlying principles but in no way should the text be contradicted, then there is simply no way that one can ban the use of big arms, whether they be anthrax, nuclear weaponry, or what not. Furthermore, as even prisoners have constitutional rights (it is clear that a constitutional right to vote would extend it to felons, for instance), it would also make the idea of taking guns away from criminals unconstitutional, especcially since many of them engage in "gang warfare".
What are the underlying principles in question? As I read the arguments that led to the Second Amendment, the underlying principles were:

1. The government needs to be afraid of the citizenry. There is no realistic chance that the citizenry will own anything but relatively small arms. Small cannon and mortars were sometimes privately owned in that era, and trading vessels often carried a few. All of these weapons are in the realm of something that can be used in a precise, targeted way. Anthrax and nuclear weapons don't pass that test--and neither would be recognized as "arms" within the meaning of that word in 1791. Anthrax to them was a disease, and nuclear weapons were incomprehensible escalations of black powder. There is no small arm on the market today that would have been incomprehensible to the Framers. (Remember that they did have repeating handguns, although they were not very reliable.)

2. The best defense of a free society is not a professional military, but a militia. There is a place for professional military, but they should not be the primary defense of the nation. There were proposals to limit Congressional authority to maintain a standing army in peacetime, but these never got through James Madison's revision process.

How should these principles be applied? Look at the history behind them. The only significant regulatory measures aimed at small arms when the states ratified the Second Amendment were either prohibitions on blacks owning guns (they weren't citizens) or safety regulations concerning storage of gunpowder or of loaded but unattended firearms (such as Boston's 1786 firearms storage law).

Blacks are now citizens in every state (thanks to the Fourteenth Amendment), and while some of the supposed "safety regulations" of gun control advocates look more like an attempt to prohibit self-defense, the Constitutionality of laws that, for example, prohibit storage of more than five pounds of black powder in a residence, or that require that you not leave loaded and unattended guns in your home, have not been seriously questioned.
9.29.2005 5:40pm
Clayton E. Cramer (mail) (www):
Justin writes:
I continue, as well, to submit that your theory is not actually falsifiable because text is always vague to a large degree. For instance: "All wordings can be vague depending on the situation in which it is being applied. But where the text is not vague..." tells us that 18th century muskets are surely arms.
And so were rifles, which were widely used military arms.
It tells us nothing about whether handguns (which are not generally developed for the military),
Wrong. Handguns have been military weapons for centuries, and cavalrymen were required to supply their own handguns in some colonies before the Revolution. You also ignore that an individual right to keep and bear arms was widely assumed, based on Blackstone's discussion of it.
nuclear weapons (which are generally developed for the military),
Agreed.
or shotguns (who closely resemble 18th century muskets but are used mostly for sport today) are "arms".
Modern shotguns (except for firing metallic cartridges) are nearly identical to 18th century muskets. Indeed, many New Englanders met their colonial obligation to be armed for militia duty with fowling-pieces, the ancestor of the shotgun.
9.29.2005 5:45pm
John Alden of Maine:
Re Alden and Hans -

Sure, those cases go beyond the 11th Amdt text, but that alone does not necessarily mean that the broader immunity principle of Alden is unmoored from ANY constitutional text. It means that the relevant text is Article III to begin with. In other words, Hans and Alden read the 11th as merely confirming that Chisholm was wrong, and Art. III, as properly understood, never allowed such suits to begin with. Had the 11th Amdt never been adopted, we could have seen Chisholm overruled and the "right order" restored, and no confusion about the "narrower" 11th Amdt text would have kicked in.

Of course, that still leaves the Q of whether Art III does allow or prohibit suits by citizens against States in federal court, i.e., was Chisholm right or wrong? But at a minimum, I think critics of Alden/Hans need to go that extra step and expressly assert that Chisholm is right, that Article III does not textually provide for immunity, etc. Then we can have THAT debate. But just saying "hey! It's beyond the 11th Amdt text" doesn't cut it. Immunity is also beyond the 22st Amdt text. So what?

On the Article III debate, the starting approach, before looking at the actual text, is to remember that it's like Article II is for Congress: just as Congress has enumerated powers, the federal courts have enumerated jurisdiction. If a married couple tries to file for divorce in federal court, they can't, because nothing in Art. III CREATES such jurisdiction. It's not that there's any affirmative bar in Art. III to such jurisdiction.

So then the Q is, what text in Art. III even GRANTS an individual the right to sue a State -- her own or a neighboring one -- in federal court? It might be the jurisdiction over cases "between a State and Citizens of another State." The Alden Court noted that Madison, Marshall, etc. had all explained in the ratification debates that text was understood as a one-way street, so that "between" meant only when States sued citizens, not the other way around. The Chisholm Court went the other way, on what they said was pure textualism. So there are opposing views on what the text means -- a standard textualist debate, not a debate between textualism and a non-textualist approach.

Personally, I buy Alden's view of the Art. III text. But even if you don't, and you prefer Chisholm, I find it hard to see how the Article III textual debate is SO clear-cut that it makes a textualist a "hypocrite" to be pro-Alden. That's especially the case for someone like Scalia who starts with original understanding (not intent), as the Madison/Marshall etc. info does support the Alden view of original understanding. (I admit that I don't know enough of the grammar of the time to know whether "between" had an always-two-way meaning, or could be used in a one-way fashion, but if it were the former, then Madison and Co. were awfully odd in using such a "clear" statement one way while going around saying it means something else!)

I won't try to resolve that deabte, but will only repeat my more limited point: if one wants to argue that the Alden view of Art. III is "totally unmoored" from the Art. III text, I can respect that argument, even if I disagree with it. But when someone points only to the 11th Amdt text and says "a-ha!," as if it ends the matter, that's just silly.

To be fair, though, proponents of state immunity, in federal court, from suits by same-state citizens, should stop calling it "11th Amdt. immunity" and just call it "sovereign immunity retained in Art. III."

And as for the separate question of when States can be sued in STATE courts, well, I just don't see how anything in the federal constitution should mean squat about that. States can set up their courts to allow suits against the state, or to give standing to gerbils, or whatever. Unless it violates some other bar (e.g., equal protection if a court is "whites-only,"), a state system shouldn't violate federal constitutional provisions about federal jurisdiction.
9.29.2005 6:09pm
Medis:
To the Originalists,

I also have no general problem with recourse to originalism when we want to read some sensible limitations into otherwise over-broad Constitutional texts. I'd just note that is what is going on. In other words, I don't think it is controverial that the modern definition of "arms" would include nukes (see, eg, SALT). So to limit the 2d Amendment, you needed this side-constraint on the meaning of "arms".

On a deeper level, however, I think you would have to ask WHY originalism should be the guiding principle here, and exactly HOW to apply it in light of new technology (the same problem that arises in the First Amendment context, eg with the "press" and, say, internet blogs--would that be a valid extension or not, given that there was no such thing at the time?).

And there I think you inevitably get entangled with the purpose arguments. For example, one of you already mentioned the idea that a right to bear [the light personal] arms [available at the time] might have served the purpose of keeping the government afraid of the citizenry, and hence limiting the interpretation of arms to the modern versions of the light personal arms available at the time might make sense. Again, however, I think this is subject to Randy's complaints about the possibility of purpose-arguments departing from the text, and being inherently uncertain.

For example, I would note that at the time, it probably made sense that a citizenry equipped with muskets provided a useful implied threat to a military equipped with ... muskets. But today the military has much more sophisticated and deadly weapons than just the modern versions of light personal weapons (eg, tanks and helicopters), and as much as I like the movie Red Dawn, I don't find it realistic (and even they needed RPGs).

But again, I mention these difficulties not to attack your efforts at finding some limits in the 2d Amendment, nor for relying in part on purpose-arguments to supplement your extensions of the original meaning. I just think that these efforts are clearly subject to Randy's criticism, but we really have no choice but to continue.
9.30.2005 9:14am
ralph:
In the discussion of weapons of war and the 2nd amendment, no one has mentioned that the Constitution still includes provisions for privateering and letters of marque, which require the private ownership of weapons of war (e.g., serious warships with serious guns - much, much bigger than simple muskets or sawed-off shotguns). True, Congress must authorize them, but the provision is still there. So it seems to me that the original framers foresaw the private ownership of such weapons, and didn't have much problem with it.

Now, if we want to say that nuclear weapons are a bit different, then maybe we need to actually, affirmatively change the wording in the document to make it consistent with current intentions.
9.30.2005 9:30am
juris imprudent (mail):
Medis-

"...we want to read some sensible limitations into otherwise over-broad Constitutional texts."

Wow, that is a rather chilling statement and I suspect you didn't mean it to sound as bad as it did to me. A provision may indeed be broad, but it is a particular viewpoint as to whether it is over-broad or not. Would you really say that blogs should not be considered part of a free press and/or free speech? Would that be a sensible limitation to an over-broad bit of text?

"I don't think it is controverial that the modern definition of "arms" would include nukes"

That "arms" can have one meaning in international diplomacy and another meaning in Constitutional context should NOT be controversial. What should be controversial is transposing the meanings without extremely good reasons for doing so.

"But today the military has much more sophisticated and deadly weapons..."

Which are all operated by people. An F16 without a pilot (or support crew) isn't much of a threat. And to that extent, the people's arms are an effective threat - against the other people that would operate the sophisticated weapons. Not to mention that you might have noticed that unsophisticated weapons are being used pretty effectively in Iraq, no?
9.30.2005 12:51pm
Tom Perkins (mail):
"For instance, if the text must be viewed in terms of underlying principles but in no way should the text be contradicted, then there is simply no way that one can ban the use of big arms, whether they be anthrax, nuclear weaponry, or what not."

Well, there is no valid way by which the Constitution can be viewed as permitting the general banning of "big arms", cannon, tanks, helicopters, warplane, ships, explosively armed missiles of whatever range, etc. However, the economics of having such things and keeping them useful is a self limiting problem to the point of it being a non-problem, and a strawman argument. Practically, the same holds true for most weapons of mass destruction (but not in the future neccessarily for very small nuclear weapons which are theoretically possible but not yet built, or today for chemical weapons where the quantity of material* and means of delivery prevents them from being an indiscriminant weapon).

I base this statement on the treaties I believe we are signatory to which are the supreme law of the land and which prohibit the use of indiscriminate weapons.

*Sufficiently persistent agents might be banned thereby in any quantity.

The "militia" can't legally have them only because the "guvment" can't legally have them either.

I mean, if you want to take the law, yunno, seriously.

Yours, TDP, ml, msl, &pfpp
9.30.2005 2:45pm
Tom Perkins (mail):
When medis wrote:


"...we want to read some sensible limitations into otherwise over-broad Constitutional texts."


juris imprudent didn't like, and I second that sentiment with a "Yikes!"

Yours, TDP, ml, msl, &pfpp
9.30.2005 2:48pm
Neal R. (mail):
I appreciate John Alden of Maine's thoughtful defense of Hans and (I think) Alden . But I still don't think those cases can be justified under Randy Barnett's methodology. Alden, in particular, relied on an appeal to "underlying principles" but did not "reemerge in the text itself."

Alden said that sovereign immunity was a "fundamental aspect" of state sovereignty "confirmed" by the 10th Amendment (note that the 10th Amendment was not the starting point, but only where the Court "reemerged"). Engaging a more structuralist than textualist analysis, the Court held that immunity from suit in either state or federal court was a "fundamental postulate[] implicit in the constitutional design." The Court also expressed concern that allowing Congress to make states liable by an express grant of jurisdiction would upset the federalist balance.

To me, this looks like what Barnett calls a "switch away from original meaning in the ostensible name of original meaning by appealing not to the text, but to the unwritten principles underlying the text, and thereby obviating the text itself." I don't think it's obviously wrong or "hypocritical" for a textualist to defend Alden. Indeed, I'm not attacking textualists or originalists or anyone really (and neither, I think, is WB). I'm just interested in how these cases play out under Barnett's analysis. My own view is that Alden's reasoning exemplifies the kind of "subtle move" Barnett warns of -- a move from text to underlying principles but not back to text -- that "an originalist committed to a written constitution should be aware of and should resist."
9.30.2005 2:58pm
Medis:
juris and Tom,

Again, I think you agree with me in substance, and just are balking at a fair description of what you are doing.

Take 14th Amendment 101. The first thing everyone notes about the Equal Protection Clause is that it can't literally mean that a state has to treat everyone in its jurisdiction strictly equally, because that would mean doing absurd things like not punishing criminals. So we start reading sensible limitations into the Equal Protection Clause.

The same goes for the First Amendment. It can't really mean no law at all abridging the freedom of speech, because that would apply to conspiracy, libel, and the like. So we start reading in sensible limitations.

I think what you might be objecting to is that I was neutral in that statement about where those limitations should be coming from. Maybe, for instance, you feel that the only limitations should come from looking at what was originally understood or intended by these texts.

My first point is just that even in such a case, you are still reading limitations into text that would otherwise be broader, if not for your originalist limitations.

My second point is that it is going to be impossible to completely disentangle purpose-arguments from this project. That is why I brought up internet blogs. I certainly think they should count as press. But I freely admit there is no way the founders were literally thinking of internet blogs when they wrote or ratified the First Amendment. So we have to take their notion of press and somehow predict whether it would apply to internet blogs, and to do so I think you are inevitably going to start thinking in terms of functions, and you will have to select the relevant functions based on a sense of purpose.

The same thing, I would contend, is going on in the 2d Amendment context. The founders did not contemplate modern arms because modern arms did not yet exist ("similar" things might have existed, but "similar" is a matter of degree). To extend their notion of "arms" into the modern context, people are going to have to think in terms of functions and purposes. Indeed, that is EXACTLY what the arguments above did.

And again, I have NO objection to all this. I'm just pointing out that pretty much everyone is reading limits into the Constitution's text, and that everyone ultimately contemplates purposes when doing so.
9.30.2005 3:27pm
Medis:
Just to note, I meant "take, for example, 14th Amendment 101." You definitely do not need to take such an actual course.
9.30.2005 3:51pm
Tom Perkins (mail):
Cpugrud wrote:

It would take a herculean stretch to find Nukes and WMD protected under 2A because these are in no way individual arms.

The 2nd doesn't say individual arms.

juris imprudent wrote:

When the 2nd was written there was a well understood distinction between arms and ordnance.

And the assertion this "well understood" distinction between arms and ordnance applies to the 2nd amendment is directly contradicted by this guy:

"Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American...The unlimited power of the sword is not in the hands of either the federal or state governments but, where I trust in God it will ever remain, in the hands of the people."

Mr. Tenche Coxe, writing (with no contradiction from the Founders in, before, or after the historical period in question) that the 2nd amendment use of the word "arms" was a term of art which makes no distinction between sidearms, ordnance or (parenthetically) ships.

The purpose of the 2nd amendment is explicitly "insurrectionist", it is that the national government be unable to come against with the general population with any good chance of success.

Yours, TDP, ml, msl, &pfpp
9.30.2005 3:55pm
juris imprudent (mail):
medis-

Understanding a constitutional provision should not start by assuming the most extreme/absurd possible literal interpretation. Conspiracy and libel/slander are not infringements on free speech merely because they are sensible limitations - they are legitimate laws because they deal with conflict between rights. Contrast those with sedition laws (which have certainly seemed sensible to some people at some times).

As Randy pointed out, if the text is ambiguous you can then reference the underlying principle - so long as you don't come back applying the principle in contradiction rather than clarification of the text. Attempting to assert a right to nukes requires one of two subterfuges: 1) substitute the meaning of the word "arms", or 2) assert the principle purpose of the 2nd was to provide for armed rebellion (contrary to the purpose of the milita as spelled out in Article I) and conclude the modern necessity of tactical nukes for the individual to counterbalance the firepower of the state. Neither is a legitimate interpretive result.

Tom actually asserts both even though the Coxe quote does not in fact address the distinction between arms and ordnance. If we are playing with literalist interpretations he is really only talking about swords and not sidearms, ordnance or whatever. However, Mr. Coxe was not making a legal interpretation argument; he was hurling forth a bleeding chunk of political rhetoric in debate (against those who were reading into the Constitution a principle that did not exist - hmmm).

An excellent example of the underlying purpose fallacy (i.e. contradicting the actual text) can be found in how the appellate courts have read the 2nd in light of Miller, in particular U.S. v. Cases (1st Cir 1942), U.S. v. Tot (3rd Cir 1942) and, most spectacularly Hickman v. Block (9th Cir. 1996). All three reject the text in favor of an explanation about purpose that contradicts the text. More recently U.S. v. Warin (6th Cir 1976) actually uses the nuclear weapons fallacy to find against ANY 2nd Amdt claim.
9.30.2005 7:13pm
Medis:
I still don't think you are disagreeing with me in substance, juris. Rather, I think you are interested in preserving some sort of rhetorical advantage. For example:

"Conspiracy and libel/slander are not infringements on free speech merely because they are sensible limitations - they are legitimate laws because they deal with conflict between rights."

In other words, it is precisely because they deal with this conflict between rights, they are sensible limitations in your view.

Like I said, I'm just being neutral about what might count as legitimate sources of limitations, and you have some specific ideas about what sources are legitimate. But as long as the source is legitimate in your view, you manifestly have no problem reading limitations into the text. Which is fine with me ... but I guess you just don't like to admit that you share this trait (reading limitations into the text) with those who, in your view, use illegitimate sources to find their limitations.
10.1.2005 10:21am