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Channeling the Framers, Justice Stevens' Way:

I was just rereading the Supreme Court's most recent campaign finance / free speech case, and was again struck by these paragraphs at the end of Justice Stevens' opinion. Vermont law (among other things) limited the campaigns of candidates for state representative to spending $2000 for the primary and general election campaigns combined. The law allowed higher limits for other races, including statewide races, but even those limits would be unconstitutional under Buckley v. Valeo. Justice Stevens argued that these restrictions should be upheld against a First Amendment challenge. Most of his argument focused on the practical effects of these limits, but he closed with this:

One final point bears mention. Neither the opinions in Buckley nor those that form today’s cacophony pay heed to how the Framers would have viewed candidate expenditure limits. This is not an unprincipled approach, as the historical context is "usually relevant but not necessarily dispositive." This is particularly true of contexts that are so different. At the time of the framing the accepted posture of the leading candidates was one of modesty, acknowledging a willingness to serve rather than a desire to compete. Speculation about how the Framers would have legislated if they had foreseen the era of televised sound-bites thus cannot provide us with definitive answers.

Nevertheless, I am firmly persuaded that the Framers would have been appalled by the impact of modern fundraising practices on the ability of elected officials to perform their public responsibilities. I think they would have viewed federal statutes limiting the amount of money that congressional candidates might spend in future elections as well within Congress’ authority. [Footnote: See Art. I, § 4 (providing that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations"); see also § 5 (providing that "Each House may determine the Rules of its Proceedings").] And they surely would not have expected judges to interfere with the enforcement of expenditure limits that merely require candidates to budget their activities without imposing any restrictions whatsoever on what they may say in their speeches, debates, and interviews.

There are many arguments for and against relying heavily on what the Framers thought about the provisions that they were enacting, and that the Court is now interpreting. But I wonder how helpful it is to simply engage in free-form conjectures about what the Framers would have thought, with no real documentary support.

Would the Framers have been "appalled" by modern fundraising to the point of restricting candidates' ability to spend money on their campaigns? Or would they have been "appalled" by restrictions on people's right to pool their property in order to express their views? Would they have "surely ... not ... expected judges to interfere" with restrictions on the spending of money to express one's views? Or would they have thought that laws "requir[ing] candidates to budget their activities" -- which is to say to avoid some kinds of speech in order to be able to engage in other kinds of speech -- are quintessential interferences with the freedom of speech?

Justice Stevens is "firmly persuaded" that the Framers would have taken one view. I'm sure others are "firmly persuaded" of the contrary. Perhaps there's some evidence that can point us one way or the other. But Justice Stevens doesn't cite any such evidence, other than parts of the Constitution that don't expressly speak to this (and that in any event would presumably be as limited by the First Amendment as are other grants of Congressional power).

I'm sure that Justice Stevens sincerely believes that the Framers would have thought as he does. Yet that's an easy thing to believe, regardless of the historical support, no? Many modern Americans respect the Framers of the Constitution. These modern Americans naturally think the Framers were generally thoughtful and reasonable people. Yet of course these modern Americans also think that they themselves are generally thoughtful and reasonable people. Given this coincidence, it seems very easy for us to just assume that the Framers would have shared our views on some subject, and that we share the Framers' views.

All the more reason, I think, for us to be skeptical about arguments about what the Framers would have though, or "surely would not have expected," when those arguments lack even a single citation to a Framing-era source discussing what the Framers actually seem to have thought or expected about related questions.

Bpbatista (mail):
Stevens is "firmly convinced" that the Founders would have legislated spending limits because Stevens thinks that such limits are a good idea. The Philosopher-King-Justice does not need documentary evidence to support his belief. Because he is (a liberal) on the Supreme Court, his belief as to what the Constitution does or does not mean or permit is, ipso facto, what the Founders would have believed. In essence, Stevens' is saying that limits are constitutional because he thinks they are a good idea. Stevens' statement is a classic example of liberal judicial activism masking as "jurisprudence."
7.5.2006 6:16pm
The Original TS (mail):
This whole line of speculation is quite silly. To go Stevens one better, the Framers would have almost certainly thought that restrictions on political fundraising and advertising were utter foolishness.

The Framers were, you'll recall, from the generation that thought an evening's light entertainment was sitting around the coffee house discussing The Federalist Papers. The idea that the electorate could be swayed by vapid emotionalistic nonsense just because it was repeated to them ad nauseum would strike them as laughable.
7.5.2006 6:20pm
Greedy Clerk (mail):
Paging Clarence Thomas -- just about every one of his "concurrences" is guilty of this.
7.5.2006 6:28pm
Eugene Volokh (www):
Speaking of arguments unsupported by citation, any chance you might point us to which particular opinions of Justice Thomas's you'd fault on this? His First Amendment originalist concurrences that come to my mind -- in Rosenberger, Newdow, Cutter, and McIntyre -- cite a good deal of evidence, rather than just asserting what the author is "firmly persuaded" that the Framers must have thought. (His Zelman concurrence is sketchier, but that's partly because it's less firmly originalist; in any case, his later work in Newdow and Cutter seems to me to fill in some of the gaps that the Zelman concurrence leaves.)

Still, perhaps these four cases are the exceptions to the "just about every one of his 'concurrences' is guilty of this" rule. It would be helpful, though, to see pointers to particular concurrences in which Justice Thomas makes an argument about the original meaning of a provision without providing any evidence to support this assertion.
7.5.2006 6:43pm
Evelyn Blaine:
I'm not an originalist, but I do feel obliged to give originalists more credit than one would in attributing to them all the weaknesses of Justice Stevens' mind-reading method in this passage. There is a reason that serious originalist hermeneutics argues from the sense of the words on the page as delimited by accessible historical and institutional context, not counterfactuals about the beliefs the Framers would hold on the application of their ideas to specific factual predicates. In general, I quite admire Stevens, but this passage reads like a bad parody of Raoul Berger, whose work was itself a bad parody of methodologically scrupulous originalism.
7.5.2006 6:46pm
dmb (mail):
Is this a joke? I always hear about how friendly politics used to be and how the politicians were cordial, respectful of each other and otherwise above the fray. This usually follows with a complaint about how awful politics and politicians are now compared to the good ol' days. How can anyone with even the most superficial knowledge of history believe this to be the case? Even before the United States, politics and elections were and continue to be serious contests that were not always so cordial or respectful. Early elections in the US, federal and state, were often contentious and far deeper in the gutter than we see today.
7.5.2006 6:53pm
Joel B. (mail):
Eugene you provide more good evidence why Stevens should retire, but that's not really new.

What I find is interesting is that George Washington spent quite a bit of his personal fortune buying ahem alcohol for constituents to win his house of Delegates seat in Virginia. But you know, we don't want to let that get in the way of the "reality-based communtity."

Stevens...ugh.
7.5.2006 7:09pm
lucia (mail) (www):
I believe I've read George Washington routinely spent 50 pounds buying voters rounds of drinks on election day. Adjusting for inflation, how would this compare to $2000 today?
7.5.2006 7:17pm
lucia (mail) (www):
Shoot! I scrolled right past Joel's comment.
7.5.2006 7:21pm
rp:
How about any Thomas opinion in the Takings area?
7.5.2006 7:24pm
Bruce:
I think the Framers would have been appalled by the idea of campaigning, let alone spending money on campaigning. In fact, they were pretty much against political parties, at least at first. Not sure any of this helps us.
7.5.2006 7:30pm
breakdown:
For what it's worth, it is very uncontroversial to say that the framers deeply feared the effects of "factionalism" (the founding era word for cohesive political parties) on American democracy. So in light of the irrefutable fact that the framers so despised political parties, it's not so outrageous to be convinced that the framers would have condoned federal legislation aimed combatting the influence of political parties on American democracy -- this is one view of contribution limits are supposed to accomplish.

See Federalist No. 10
7.5.2006 7:32pm
Frank Drackmann (mail):
Spending limits would have helped the practice of slavery as you could replace your high priced campaign workers with free slave labor and spend the saved money on more advertising.
7.5.2006 7:35pm
Joel B. (mail):
In the same vain of some of the commenters...and some recent posts, let me speak for the founders as I say that I am quite sure that the founders would definately preferred World Cup Soccer to Baseball and Football, while George Washington, being quite wise would certainly have sold his Mount Vernon estate about 18 months ago, hoping to repurchase it when "the Bubble collapses."

As far as I can tell, if you have to appeal to "well the Founders would have just felt that way" you're really not very convincing. Now, if you can say, in Federalist X, Principle Y was argued, or Founder Z said L in his personal papers, go ahead, but just "the founders would have felt..." Would they? I mean really? Do they have opinions of their own or are they just pawns in our political squabbles? Regardless of agree or disagree with the greatness of the US, using the founders in such a petty way (speaking for them when they did not speak) is, I feel, improper.
7.5.2006 7:43pm
David (mail):
I believe that the founders did not really agonize that much over the so called spending limits. As it was pointed out, Washington did spend money on buying drinks for voters. Back then politics was basically back slapping and a good old boy net work. Yes, it did get contentious,ie Burr and Hamilton, and some of the broadsides and pamphlets in those days got rather insulting and were prone to rumor mongering. However, bear in mind that originally, politics was almost entirely dominated by the well to do who could afford to self finance their campaigns. In fact I do not ever recall reading about a candidate in those days having any event that would come close to resembling a fundraiser of today. Most of the early politicians, Washington, Jefferson, Hamilton, Adams, etc., were in fact very wealthy for their time and could easily finance their own campaigns. Even Andrew Jackson, who promoted himself as more of the common man's candidate made a fortune before entering politics by selling real estate in the West.

Justice Stevens does not know squat about American political history if he actually believes that the framers would have set spending limits. They were a very smart, pragmatic bunch who had just won their independence. They certainly would not have wanted to restrict free speech, and free elections

I do not claim to be able to think for the Founding Fathers, but I am certain that if they were alive today, they would probably feel it was each candidate's duty to raise funds and not impose any set limit.
7.5.2006 7:50pm
Andy Freeman (mail):
> it's not so outrageous to be convinced that the framers would have condoned federal legislation aimed combatting the influence of political parties on American democracy -- this is one view of contribution limits are supposed to accomplish.

Since campaign contribution limits and campaign spending limits generally exempt parties, it's hard to argue that they're intended to limit them. The advocates of such limits often claim that they're trying to strengthen parties. Maybe limits don't accomplish that goal, but ....
7.5.2006 8:27pm
frankcross (mail):
Pretty silly, but how much more sense does it make to cite the Framers on this with documentary support. I find it hard to believe that the Framers had any intent regarding circumstances hundreds of years in the future that were completely unforseen to them.
7.5.2006 8:47pm
harry:
Perhaps some of the Framers would have been appalled at the campaign spending and perhaps some would not have been. In any case they did not put anything into the constitution on the matter. On the other hand, some of them lived in states with established religions but still managed to put a prohibition in against them. Though they did have to do it in the Bill of Rights instead of the constitution proper.
7.5.2006 9:06pm
stevesturm:
It's nice that Stevens is so concerned about what the Framers would have thought.... tis a shame, but not surprising, he isn't consistent... as in, how would the framers have viewed taking private property for private benefit... how would the framers have viewed having a court force down their throats the laws and customs of the countries the Framers had left behind... how would the framers have viewed telling a town they couldn't display the 20 commandments...

As I've long thought, most judges - on both the left and the right - make their decision, then go searching for the rationale... so when the framers could have been in favor, the judge cites the Framers... and when the Framers wouldn't have been thought to have been supportive of a particular line of thinking, then the judge cites the need for the Constitution to adapt to a changing world.
7.5.2006 9:28pm
stevesturm:
10 commandments.
7.5.2006 9:28pm
Reg (mail):
I am firmly persuaded that the Framers would favor impeaching Justice Stevens.

These kinds of bald assertions supported only by the arrogant certainty of the writer's moral judgments would barely earn a C at any decent law school. Time to hire new clerks.
7.5.2006 9:51pm
Ship Erect (mail) (www):
...when those arguments lack even a single citation to a Framing-era source discussing what the Framers actually seem to have thought or expected about related questions.

? Doesn't he cite the Constitution? He says in the quote that they wouldn't have found it outside of Congress' authority, based on what they put into Article I.

He says that they would've been appalled by modern fundraising practices. This seems to me to be incredibly easy to say--after all, who isn't appalled? Why should the Prez and Congress attend $1,000-a-plate fundraisers half the time they're in office?
7.5.2006 10:01pm
Toby:
Politics used to be friendly. My favorite campaign slogan, although a hundred years past the founders was "Ma Ma, where's my Pa, gone to the White House, ha ha ha"
7.5.2006 10:03pm
Cornellian (mail):
This "the Framers would be shocked by this interpretation" argument is hardly exclusive to Stevens. Scalia wheels it out for virtually every case involving a hot button social issue and I'm sure those two are not the only justices to employ it. Heck, that's standard rhetoric among those who are very concerned to ensure that their kind of judge ends up on the bench.
7.5.2006 10:08pm
Steven Jens (mail) (www):
I lament the decline of incivility in politics. Has any member of congress assaulted another on the Senate floor in the last 150 years? Surely, something funnier can come out of the Senate than Senator Stevens describing the Internet.

I think my favorite quip was in 1968, after George Romney infamously said he had been "brainwashed"; McCarthy said that a light rinse would have sufficed.
7.5.2006 10:18pm
kdonovan:
Steven's strongest argument is that many of the Founders, once in power, supported the Alien and Sedition Acts to undermine their political foes - of course some of them would have supported cmapaign restrictions on these opponents too if they thought they would have been effective. Of course looking to the Alien and Sedition Acts as for support is about as effective as invoking Dred Scott as precedent.
Kevin
7.5.2006 10:31pm
88888888:
Let's see him channel the Framers on term limits.
7.5.2006 10:43pm
Perseus:
I'm only confident that the Framers would be appalled at the "spirit of electioneering." Madison in particular despised it, especially after being defeated for a seat in the Virginia Assembly when his opposition followed the common practice of employing "the corrupting influence of spirituous liquors, and other treats having a like tendency." But that hardly proves that he would have endorsed modern campaign finance reform laws.
7.5.2006 11:13pm
Mark F. (mail):
Nevertheless, I am firmly persuaded that the Framers would have been appalled by the impact of modern fundraising practices on the ability of elected officials to perform their public responsibilities.

Justice Stevens, it's impossible to "prove" how some dead people might feel about a modern issue if they could be brought back to life. We can't ~ever~ prove your thesis.
7.5.2006 11:33pm
Death and taxes:
Stevens was channeling Grampa Simpson in that dissent: "Why, when I was a lad, we'd sit in the blazing sun for hours listening to Lincoln debate Douglas--and we liked it. You young folk today, with your TV ads, pfui!"
7.6.2006 1:02am
Lev:

Nevertheless, I am firmly persuaded that the Framers would have been appalled by the impact of modern fundraising practices on the ability of elected officials to perform their public responsibilities. I think they would have viewed federal statutes limiting the amount of money that congressional candidates might spend in future elections as well within Congress’ authority. [Footnote: See Art. I, § 4 (providing that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations"); see also § 5 (providing that "Each House may determine the Rules of its Proceedings").] And they surely would not have expected judges to interfere with the enforcement of expenditure limits that merely require candidates to budget their activities without imposing any restrictions whatsoever on what they may say in their speeches, debates, and interviews.



And the reason is, I, Justice Stevens, am at least as brilliant as, if not more brilliant than, the Founding Fathers, and that is what I feel is the case.
7.6.2006 1:16am
A.W. (mail):
One thought on the subject... I think it is fundamentally wrongheaded to talk about all of this, even when discussing TV commercials as "speech." while it is true that it is sound, and thus at first blush seems like speech, it is actually much more like "press" in that day and age. Back at the framing, speech was "free" in the sense it was costless. It was also self-limiting. It could only be heard as far as your voice could carry.

By comparison, "the press" bears a stronger resemblance to modern TV. printing costs money, just as making TV shows cost money. likewise, the press was generally a form involved prepared expression. unlike speech it isn't generally ab libbed.

But especially in that aspect about it being a "paid for" medium.

Also Stevens doesn't know sh*t about election history. First, most elected offices were won in direct and blatant campaigns. The only office in america that ordinarily was not won by direct campaigns, was the presidency. There, like Stevens alleged, people at least pretended that they didn't want to be president. And of course the people who wrote the constitution were not fooled about any of this. I am sure James Madison didn't believe Thomas Jefferson for one moment when he claimed that he felt like a prisoner being freed on leaving office.

Anyway, James Madison specifically anticipated these issues. Reread Federalist #10. What he was talking about, the evils of "faction" is exactly what they were trying to regulate in all these campaign finance regulations. And Madison correctly figured out that the "cure" is worse than the disease.

I think it comes down to a "fair competition" approach, akin to the anti-trust vision of the market. So, transparency. Know where all the money that goes to a candidate comes from. And let the people decide how they feel about this.
7.6.2006 1:29am
Brian G (mail) (www):
The Framers would have been REALLY outraged at Justice Stevens' lack of fidelty to the Constitution.
7.6.2006 1:56am
David M. Nieporent (www):
This "the Framers would be shocked by this interpretation" argument is hardly exclusive to Stevens. Scalia wheels it out for virtually every case involving a hot button social issue and I'm sure those two are not the only justices to employ it. Heck, that's standard rhetoric among those who are very concerned to ensure that their kind of judge ends up on the bench.
Cornellian, Scalia "wheels it out" based upon the laws in existence at the time the constitution was adopted. He doesn't just trot out a naked "I don't like it, so they wouldn't have either."

Stevens' argument is what passes for originalism among people who don't really understand originalism. It's a WWJD argument. You don't really need to cite anything; you just assert that he'd have taken your side.
7.6.2006 5:19am
David Cohen (mail):
Wouldn't the Framers' reaction have been, "Really? It's that hard to reach all the propertied white men?"
7.6.2006 9:11am
TDPerkins (mail):
David Cohen wrote:

Wouldn't the Framers' reaction have been, "Really? It's that hard to reach all the propertied white men?"


No, certainly not as simply as you imply. The requirements for voting were different among the several states, and neither being male, white, nor a landowner were consistently requirements--commonly, but not universally.

Yours, TDP, ml, msl, &pfpp
7.6.2006 10:42am
Felix:
In fairness to Justice Stevens, this is a one-page "final thought" in a dissent. It doesn't carry a lot of weight in his argument -- in fact I'm not sure it carries any weight at all. The focus of his argument is on policy and on the fact that "Buckley’s holding on expenditure limits itself upset a long-established practice. For the preceding 65 years, congressional races had been subject to statutory limits on both expenditures and contributions."

I read this passage as an outline of how he personally would approach thinking about the views of the Framers on this issue, to the extent that it's relevant. But he quite sensibly says that it's impossible to know for sure what the Framers would have thought, and he sees nothing improper about the majority deciding the case without reference to what the Framers would have thought, given that uncertainty. You don't often see Scalia being so modest.

I would agree that this would be very thin stuff if it were what he were hanging his decision on, but it isn't.

(On preview I see that Prof. Volokh did say upfront that this was only a small part of Stevens' argument, but a lot of commenters seem to have overlooked that).
7.6.2006 11:10am
David Cohen (mail):
Mr Perkins:

Thank you for your comment. In fact, I wrote inexactly. The most common colonial requirements for the suffrage were membership in the approved state church (later, generalized to Protestantism) and property, though there were differences from colony to colony. In practice, this restricted the franchise to between 50% and 80% of the male population, depending upon the colony. Because land was cheap, this was actually a much larger proportional electorate than in Great Britain.

Nonetheless, my point was that the context has changed so greatly that what we surmise the Framers would have thought about campaign finance reform, had they been able to frame that question, is irrelevant.
7.6.2006 11:38am
Kevin Murphy:
At least he didn't use the royal "We."
7.6.2006 12:09pm
Jim Copland (www):
Does Stevens know even anything about the Adams reelection campaign? The Alien and Sedition Act and the furor it provoked? The deeply personal attacks on Jefferson (some of which seem to be true)?

Call me crazy, but the behavior of the folks actually around at the time the original constitution and subsequent Bill of Rights were enacted doesn't at all support Stevens's polyanna vision (or, more likely, that of his silly law clerks).
7.6.2006 1:02pm
Goober (mail):
Doesn't seem all that unreasonable to me; practically anything from the modern era could presumptively be bewildering and terrifying to someone from a different era (just going on what I've seen in movies about time-travel). I suspect the Framers would be equally as upset about current campaign finance practices as they would be about the iPod and American Idol.

To what conclusion this goes, though, I cannot for the life of me determine. Better I think to argue that the core content of the First Amendment, which clearly wasn't adopted with current campaign finance anywhere in mind, doesn't prohibit such regulation without a good doctrinal basis for such prohibition.
7.6.2006 1:32pm
Rachel01:
Justice Stevens seems to be tweaking originalists here, rather than relying on Founders' intent. This aside is not the sort of reasoning that has been determinative in Stevens' decision-making on the Court. Instead, it reminds me of his concurrence this term in Georgia v. Randolph, where he argues that it's unreasonable to think about the Founders' intent in deciding whether a woman can consent to a search of the home over her husband's objections, because the Founders would've thought the woman inferior to the man. Just as Justice Scalia periodically bashes legislative history, Justice Stevens periodically bashes originalism.
7.6.2006 4:54pm
Chris S (www):
He says that they would've been appalled by modern fundraising practices. This seems to me to be incredibly easy to say--after all, who isn't appalled? Why should the Prez and Congress attend $1,000-a-plate fundraisers half the time they're in office?

If fundraising keeps politicians from writing new legislation I say make it mandatory that they spend 75% of their time fundraising. The more time they spend away from Washington the better.
7.6.2006 5:18pm
Robert G. Natelson Univ. of Montana (mail):
Several things didn’t get said here.

The framers certainly would have been horrified with a federal court intervening to overturn state rules governing state elections – but then the framers’ constitution did not have a 14th amendment.

Next, as for the federal elections: When politicians fund-raise, what this means is they contact constituencies and ask for support. One of the leading concerns expressed about the Constitution at the time of ratification was that the 2 and 6 year congressional terms were too long and Congress was so constituted so that members of Congress might spend too much time in the “ten miles square” and not enough among other Americans. But Justice Stevens thinks the framers would be horrified because fund-raising makes them get away from their duties and talk to other people, which is what they have to do when they fundraise.

What would really have horrified the framers (except maybe for a few outliers like Hamilton) is the scope of Congress’s current activities. They believed that even with long travel times and poor communications, representatives, at least, would spend most of their terms in their districts. This is now impossible, since Congress is making decisions on everything from museums in Ohio to the content of drivers’ licences in Montana. A major effect of this increased scope is that congressional elections are far more valuable than formerly – hence all that wicked fundraising.

Justice Stevens is a supporter of Garcia-style non-intervention in federalism issues. That makes him an odd one to cite the vision of the framers. First, Garcia-style non-intervention disclaims any judicial willingness to deal with what makes fundraising so furious at the federal level – the almost unbounded scope of congressional activity. Second, when antifederalists argued that Congress might exceed its scope and trample on the powers of the states, then how did leading federalists respond? In part by reassuring the voters that if Congress exceeded its enumerated powers, the courts would declare the action void (e.g., George Nicholas, Va. ratifying convention). So the framers' vision seems quite at odds with Justice Stevens' position on both fund-raising and federalism.
7.6.2006 6:04pm
logicnazi (mail) (www):
Ehh, it's a bit of dicta at the end of an opinion which won't have any real precedential or procedural effect. This entire criticism just seems a bit silly.

I mean every justice even the originalists clearly have their views influenced, or at least feel they are buttressed, by vague conceptions of what the framers were like or what sort of things people who really passed this bill intended. Sure Thomas backs up his claims about the framers with more citations but that only gives the illusion of formal support. Citations showing what the Framers thought about the government of their day don't make the inference to what they would feel about the government in our context any less of a guessing game. Even if all the framers had clearly indicated a distaste for some sort of campaign limit back in the day this hardly establishes that they wouldn't see the need for them in our context. This sort of inference can only be made based on a general judgement about their characters and personalities which can be developed by reading history but can't be justified by any handful of citations.

Look, suppose your friend left all his money to you trusting you would distribute it according to some general wishes/instructions he left behind. If a situation arose that was clearly totally beyond anything he had anticipated, say his best buddy dies in a car crash leaving his daughter with no way to pay or college, how would you figure out what he would have wanted done with his money? Quotes from him clearly made when he was contemplating totally different situations would be of little use compared to your general judgement of his personality and character. Trying to hide this behind a bunch of citations would only obscure this issue.

This is not a critique of Thomas, he is trying to divine what the framers actually thought they were agreeing to at the time not how they would counterfactually feel if they were saw what was going on now. However, Stevens shouldn't be attacked for not trying to pretend this is anything more than a judgement based on his sense of these men's characters and values from his knowledge of history.

Also I would argue that the framers expected the judiciary to evolve and change with the time. So while they might be horrified if you told them merely the extent of judicial power I suspect they would be positively impressed with how well the system works now and would recognize the need to a more active judiciary to counterbalance the greater congressional power. Ultimately I think the Framers were pragmatists above all else and seeing that we are a happy people who enjoy some of the most expansive freedoms in the world, often thanks to judicial protection, they would approve.
7.8.2006 5:48am