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Sunstein on Supreme Court Visionaries:
Over at the New Republic, Cass Sunstein has an interesting essay on the current Supreme Court. (Link via Howard.) An excerpt:
  The justices of the Supreme Court have historically included people who seemed, even during their service, to be genuine visionaries. But things are different today. Notwithstanding its unsurpassed level of competence, the Court lacks true visionaries--in a way that tells us a great deal about the nature of contemporary constitutional law.

Related Posts (on one page):

  1. Visionaries on the Supreme Court:
  2. Sunstein on Supreme Court Visionaries:
Charlie (Colorado) (mail):
"true visionaries" == "judges who interpret the Constitution the way I'd like to see it interpreted"
5.15.2007 1:38pm
AK (mail):
No "visionaries" on the Supreme Court? Oh my stars and garters!

And all this time I thought that Supreme Court justices were supposed to decide cases by applying the law to the facts. Thank God we have Cass Sunstein to set us straight.
5.15.2007 1:39pm
Redman:
Why do I think "visionaries" = liberals?
5.15.2007 1:45pm
Viscus (mail) (www):

"true visionaries" == "judges who interpret the Constitution the way I'd like to see it interpreted"


So, conservatives must think Scalia is a visionary, since he interprets the Constitution in the way they would like it interpreted. =)
5.15.2007 1:46pm
Viscus (mail) (www):

And all this time I thought that Supreme Court justices were supposed to decide cases by applying the law to the facts. Thank God we have Cass Sunstein to set us straight.


Sunstein is not arguing that law should not applied to facts.
5.15.2007 1:49pm
Zathras (mail):
I'm surprised that he relegated Robert Jackson to the also-rans.

How can anyone who has read Jackson's opinion in Youngstown include him in a group which Sunnstein claims "decided cases without setting out ambitious accounts of how to understand large areas of the law."
5.15.2007 1:50pm
Mr. Mandias (mail) (www):
<i>So, conservatives must think Scalia is a visionary, since he interprets the Constitution in the way they would like it interpreted. </i>

As far as I can tell, Scalia doesn't think the Constitution requires school choice, outlaws abortion, mandates more spending on defense and lower taxes in general, and so on.
5.15.2007 1:50pm
Ubu Walker (mail):
@Redman:
It is because you didn't bother to read the article. The author clearly thinks that the current batch of "liberals" on the court are not visionaries: "Ruth Bader Ginsburg and Stephen Breyer--are exceedingly careful lawyers who usually avoid grand pronouncements."

In fact, the author cautiously states that, "In an important respect, Antonin Scalia and Clarence Thomas qualify as the successors of the great dissenting pairs in the Court's history."

The author concludes with a hypothetical question, "In a democracy, isn't it best to have justices who are careful and excellent, rather than visionary?"

Personally, I think this sets up a false dichotomy. Why can't we have justices who are careful, excellent, and visionary? There are still important questions of law, interpretation, and legal scholarship to be answered, and mediocrity is not something to be striven for in the pursuit of justice, IMHO.
5.15.2007 1:55pm
Jake (Guest):
I think you can measure visionaries by their effect on the approach we take to law or by the approach they take to society.

Whatever you think of Scalia, it's hard to argue that he didn't have a broad vision of interpretation of the Constitution that broke from the status quo and has had some effect on how we see the law. Maybe he doesn't have a vision of how the law should shape society (or he doesn't have a vision that Sunstein likes), but I think it's unfair to describe him as "merely competent" in his influence on the Court.
5.15.2007 1:56pm
Viscus (mail) (www):
Mandias,

Your point? Where in the Constitution is Scalia's method of intepretation mandated? Does it emanate from the "penumbra" of the Constitution? Or did Scalia make it up? Does the shift from original intent originalism to original meaning originalism also emanate from the "penumbra" of the Constitution, or do you think that shift is more a product of human discretion?
5.15.2007 2:05pm
AK (mail):
"The Supreme Court lacks visionaries" = "The next Democratic president should appoint Koh, Tribe, and me."

I for one welcome our liberal law professor overlords.
5.15.2007 2:05pm
Erasmus (mail):
I wonder how many people commented on the story without having read it. I guess that's par for the course.
5.15.2007 2:06pm
Viscus (mail) (www):
Several commentators make an excellent point. Scalia is a visionary. And his visions emanate from "me, myself, and I" rather than from the Constitution. Nowhere in the Constitution does it say "Though shalt not consider legislative history in interpreting statutes made pursuant to this Constitution." Nor does it say, "Though shalt be an originalist."

That Scalia's vision emanates from himself rather than the Constitution certainly does not prevent him from becoming self-righteous when his colleagues fail to follow his vision, which he takes to be the one true way.
5.15.2007 2:08pm
Henri Le Compte (mail):
Good lord! This quest for "visionaries" to save us all from ourselves strikes me as an absurdly juvenile quest. There is no such thing as a "visionary" in the sense of "wise man who sees before all others the direction that society should move in." That is pure infantile fantasy.

God* save us (and that includes all humanity) from the visionaries.

(*Figure of speech; don't bother to school me on the Left's opinion of God!)
5.15.2007 2:09pm
Viscus (mail) (www):

"The Supreme Court lacks visionaries" = "The next Democratic president should appoint Koh, Tribe, and me."


Tribe is too old. Sunstein is too conservative. Koh would be a good choice, though.
5.15.2007 2:10pm
Viscus (mail) (www):
Henri Le Compte,

There is no such thing as a "visionary..."

Or so you would like to think. Since you clearly are not one yourself. =)
5.15.2007 2:13pm
Bpbatista (mail):
If you want to be a visionary -- run for President.
5.15.2007 2:17pm
Ramza:
Cass Sunstein proclaims there is a lack of "Grand Pronouncements" that the supreme court justices are now more "Careful", "Minimalistic", and "Incremental."

Why is this a bad thing? Why have justices over the last few decades been more "careful" than the previous ones? Perhaps because justices realize interpretations of the law can shape public policy, whenever you shape public policy you enter the realms of politics, by entering the realm of politics you are more likely to attract political attention where people try to use the court to shape the world. It is an urge to resist turning the court into a "hack" institution.

Will these justices succeed in their goal? I don't know. Visionary legal opinions are more interesting to read in newspapers and in law textbooks. A visionary vs a minimalistic opinion though doesn't necessary mean your intended legal effect is more likely to occur.
5.15.2007 2:19pm
Viscus (mail) (www):
Zathras,

Good point. Maybe one case doesn't make a visionary in the opinion of Sunstein. But you are right, Jackson's Youngstown opinion has to be taken as visionary by any measure, as it did much more than resolve the case, but provided a framework that does not directly emanate from the Constitution for resolving future cases.
5.15.2007 2:20pm
Bored Lawyer:
It is certainly possible to respect someone as a "legal visionary" so long as the "vision" does not blind one to the limitations of one's office.

Justice Brandeis was considered a "visionary." Among his most famous "visions" was the line "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." That formed the basis, not of a Constitutional decision, but of U.S. securties regulation -- considered among the best in the world. That is a fine example of a "vision" being used within the democratic process.

It is when the "visionaries" disregard the limits and use their office to impose their visions on others that some of us protest.
5.15.2007 2:21pm
Viscus (mail) (www):

If you want to be a visionary -- run for President.


And why is this the only job where visionaries are allowed?

And who do you think the worst Supreme Court justice is? John Marshall? If Marshall was definitely visionary.
5.15.2007 2:23pm
Viscus (mail) (www):

A visionary vs a minimalistic opinion though doesn't necessary mean your intended legal effect is more likely to occur.


This is a good point. When a political battle is one through the judiciary rather than through the other branches of government, there can be a backlash. Opponents of affirmative action should thank O'Connor for her opinion in the Michigan affirmative action cases. Had she been the one to end affirmative action, there likely would have been a strong reaction from very disappointed individuals. But now, instead of blaming the justices for the end of affirmative action in Michigan, Democrats are stuck blaming the voters. Voters are much harder to blame than Supreme Court justices.

On the other hand, sometimes a visionary opinion does move towards creating the desired effects without much backlash.
5.15.2007 2:29pm
anonVCfan:
I wonder how many of the commenters have actually read the piece...

I suspect that this is more bad pop culture writing about the Supreme Court in the tradition of Rosen's piece in the Atlantic, but I'm curious.
5.15.2007 2:34pm
Viscus (mail) (www):

It is when the "visionaries" disregard the limits and use their office to impose their visions on others that some of us protest.


And where do these limits on the office that you cite come from? There are some limits on the office which come from the Constitution, of course. For example, the case and controversy requirement or limits on jurisdiction. But certainly, no one interpretative methodology is enshrined in the Constitution.
5.15.2007 2:34pm
A.C.:
Do we NEED visionaries at the momement? What is changing that requires big changes in the law? Lots of things are creaking and wobbling around the edges, and so the law is changing around the edges too, but nothing like the Industrial Revolution or Great Depression is going on.

A related question is whether we would get some visionaries if something really disruptive happened. What would happen if half of all white collar employment suddely vanished, or if human cloning suddenly became viable? A lot of people would start scrambling for answers, and the people with the best answers would probably turn into the visionaries of the era. You have to be visionary ABOUT something -- it doesn't work in a vacuum.
5.15.2007 2:41pm
Viscus (mail) (www):
anonVCfan writes:


I wonder how many of the commenters have actually read the piece...


Certainly not those who decided to lash out at Sunstein. Towards the end, he makes it clear that in his view, it isn't clear that visionary is better.


In a democracy, isn't it best to have justices who are careful and excellent, rather than visionary?

The answers to these questions are not obvious.
5.15.2007 2:42pm
Bored Lawyer:

And where do these limits on the office that you cite come from? There are some limits on the office which come from the Constitution, of course. For example, the case and controversy requirement or limits on jurisdiction. But certainly, no one interpretative methodology is enshrined in the Constitution.


The limits come from the traditional nature of what a Court does and how it "interprets" the law -- particularly legal documents enacted by other bodies, especially the Legislature. Article III sets up a court system, with the Supreme Court at its head, not a permanent Constitutional Convention. Some "visionary" Justices seem to have gotten the two confused.
5.15.2007 2:44pm
Viscus (mail) (www):

Do we NEED visionaries at the momement?


How would people who never thought of anything like the concept of light bulbs respond answer this questions before the invention of the light bulb? Would they think they "needed" that which they had yet to conceive of. Granted, of course law is very different than engineering and science, but I think the point survives. The "need" for visionaries will not be clear but in retrospect.


You have to be visionary ABOUT something -- it doesn't work in a vacuum.


I think it is possible to have a visionary mindset. For example, It is not uncommon for someone to invent many things. Think about Benjamin Franklin - "Among his many creations were the lightning rod, the glass harmonica, the Franklin stove, bifocal glasses, and the flexible urinary catheter." (quote from Wikipedia). Benjamin Franklin did not just have a "vision" about lightning rods. Rather, he had a visionary orientation that lead to many visionary achievements.
5.15.2007 2:51pm
Viscus (mail) (www):
Bored Lawyer,

Do the actions of John Marshall count as part of the "traditional nature of what a Court does" or would you say that he was some sort of deviant who we should shun rather than celebrate?

John Marshall was definitely visionary par excellence.
5.15.2007 2:55pm
BrainB (mail):
Nowhere in the Constitution does it say "Though shalt not consider legislative history in interpreting statutes made pursuant to this Constitution."

Apparently your copy of the Constitution left out some important sections:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land

Notice how the text of the law is the supreme law of the land and legislative history is not.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it,

Notice that only what is passed in a bill by both houses of Congress is a law and legislative history is not.

You can disagree with Scalia or with the Constitution but to argue that Scalia's vision is not based in the Constitution is abuse and not reason.
5.15.2007 2:57pm
AK (mail):
And where do these limits on the office that you cite come from? There are some limits on the office which come from the Constitution, of course. For example, the case and controversy requirement or limits on jurisdiction. But certainly, no one interpretative methodology is enshrined in the Constitution.

Sure, but you're ignoring that our Constitution was the culmination of at least 700 years of English legal history. The framers had a pretty good idea of what a judge in a common law system is supposed to do. The Constitution does not bind judges to behave in a certain way, but it also doesn't authorize judges to ignore the history of the office and reshape it according to their personal whims.

To put it another way, nothing in the Constitution prevents the Supreme Court from deciding cases based on coin flips. That doesn't mean that a coin flip is legitimate means of deciding cases.
5.15.2007 2:57pm
andy (mail) (www):

"Though shalt not consider legislative history in interpreting statutes made pursuant to this Constitution." Nor does it say, "Though shalt be an originalist."


Uhh...have you taken the time to read Article I's bicameralism and presentment requirements?

And have you had a chance to glance at the Constitution's amendment procedures, which provide the manner in which to change the meaning document?
5.15.2007 3:07pm
andy (mail) (www):

"The framers had a pretty good idea of what a judge in a common law system is supposed to do."



Okay...but the Framers rejected a "common law" system and instead vested all legislative powers in Congress. That doesn't sound like a common law system to me.
5.15.2007 3:08pm
Viscus (mail) (www):

Notice how the text of the law is the supreme law of the land and legislative history is not.


First of all, nowhere in the section of the Constitution that you cite is the word "text" used. Second, nowhere in the section of the Constitution that you cite is a particular interpretative methodology mandated for assigning meanings to laws, which everyone agrees are the supreme law of the land. You have failed to establish your point. Again, you and Scalia are not pushing a vision that comes from the Constitution, that is for sure.


Notice that only what is passed in a bill by both houses of Congress is a law and legislative history is not.


Everyone agrees that legislative history is not law. But, that doesn't mean that it can't be used to help clarify law.

Just as Scalia might and does cite the Federalist Papers when interpreting the Constitution (and nowhere does the Constitution either endorse or forbid this practice) one can likewise use legislative history when interpreting statutes.

The distinction between using sources like legislative history in Constitutional interpretation and statutory interpretation is nowhere found in the Constitution itself. This distinction was just plain made up by Scalia. Its that simple. The line you quote clearly says the "Constitution and the Laws ... made in Pursuance ... shall be the supreme Law of the Land." Yet this is supposedly the basis for you asserting that the only source that may be used to make sense of a law is the text itself. Well, if this part of the Constitution really did mean that (which it doesn't) then this would be equally applicable to the Constitution itself and Scalia shouldn't be using the Federalist papers.


You can disagree with Scalia or with the Constitution but to argue that Scalia's vision is not based in the Constitution is abuse and not reason.


You just can't handle the truth. Scalia is an usurper trying to shove his vision down our throats, all the while asserting that his vision is somehow Constitutionally required when it emanates from himself and not the Constitution.
5.15.2007 3:20pm
AK (mail):
Okay...but the Framers rejected a "common law" system and instead vested all legislative powers in Congress.

It's not as if the Constitution isolates the Supreme Court from the common law. Common law cases can get to the Supreme Court on appeal from federal trial courts that have diversity jurisdiction. But fair enough, your point is taken. I wasn't that pleased with the way I expressed myself there. Let's see if I can do this a little more elegantly:

Statutory interpretation was not invented by the framers. Judges had been interpreting statutes long before the Constitution was written. If the framers had intended to radically redefine the office of judge, they would have done so explicitly.
5.15.2007 3:25pm
AK (mail):
There's probably an argument - although I'm not prepared to flesh it out - that "good behavior" requires that Article III judges execute their powers as the framers expected that judges in an English legal system would. Like I said, the Constitution never says "cases cannot be decided by flipping a coin," but it clearly would be wrong to do so.
5.15.2007 3:31pm
Viscus (mail) (www):

Sure, but you're ignoring that our Constitution was the culmination of at least 700 years of English legal history. The framers had a pretty good idea of what a judge in a common law system is supposed to do. The Constitution does not bind judges to behave in a certain way, but it also doesn't authorize judges to ignore the history of the office and reshape it according to their personal whims.


First of all, we had a Revolution, in part, to overthrow the laws of England. Second, you have just provided support for visionary judging, since their is in fact a history of such in English legal history. The common law is all about judges being little legislatures and making new law. Third, nothing in English history tells us how our Constitution (which was the product of a Revolution for goodness sake!) should be interpreted. Fourth, nowhere in our Constitution does it say "though shalt refer to Blackstone's Commentaries on the Law of England as the authoritative source in interpreting this American Constitution." Certainly the founders had the intelligence to say this if they wanted to. =) The Constitution wouldn't even have been ratified if it had said that.

Let us look at the historical truth. The role of judges was ambigious from the very beginning. George Washington was not crazy when he asked for an advisory opinion from the Supreme Court. There is nothing in the Constitution forbidding advisory opinions. Nothing at all. It is a Supreme Court decision, not the Constitution that forbids advisory opinions.

But if 700 years of English history and Blackstone's commentaries are all we needed to determine the role of American judges, why did this issue arise in the first place? Sorry, you definitely lose on this one. Nothing in the Constitution says "Though shalt refer to the laws of England when questions arise about the role of the judiciary."

To say that we must (as opposed to may) refer to the laws of England in interpreting the role of the judiciary is activism worse than the greatest excesses of the Warren Court.
5.15.2007 3:36pm
Viscus (mail) (www):

Uhh...have you taken the time to read Article I's bicameralism and presentment requirements?

And have you had a chance to glance at the Constitution's amendment procedures, which provide the manner in which to change the meaning document?


In fact, I have read these provisions. And nowhere do they forbid the use of legislative history in interpretation and nowhere do they require that originalism be used in interpretation. Maybe you should read them, because you seem to think they say something they do not.
5.15.2007 3:38pm
Sebastian Holsclaw (mail):
"You just can't handle the truth. Scalia is an usurper trying to shove his vision down our throats, all the while asserting that his vision is somehow Constitutionally required when it emanates from himself and not the Constitution."

It is odd that you claim that there is no such thing as the proper method of interpretation, while you simultaneously are critical of Scalia. If all modes of interpretation are ok, on what basis do you criticize Scalia? If we decided Constitutional cases by flipping a coin would that be wrong? On what basis would you say that was wrong. You arguments undercut the ability of anyone to make a judgment about proper jurisprudence, yet simultaneously you want to continue making judgments about proper jurisprudence.
5.15.2007 3:43pm
Viscus (mail) (www):

There's probably an argument - although I'm not prepared to flesh it out - that "good behavior" requires that Article III judges execute their powers as the framers expected that judges in an English legal system would. Like I said, the Constitution never says "cases cannot be decided by flipping a coin," but it clearly would be wrong to do so.


I might not disputing the idea that there is "an argument." You can also make an argument that the world would be a better place if we killed all puppies because dogs take too many resources.

I am not disputing the humble idea that an argument can be made. I am disputing the contention that this argument has Constitutional origins.

You are right that the Constitution does not forbid deciding cases by flipping a coin. But, if that is how a particular justice decided his vote, it would be a stretch to say he or she would be subject to impeachment.

The Framers were not exactly clear concerning their expectations of acceptable judicial behavior. Some Framers voted to impeach Justice Chase, other voted not to impeach him. Go figure. George Washington asked for an advisory opinion. The early Supreme Court said no. Go figure.

By the way, you are forgetting another important player besides the Framers. What about the Ratifiers? Nowhere in the Constitution does it say that the views of the Framers are to be favored over the views of the Ratifiers. (Indeed, with contracts, ambiguities are often interpreted against the interest of the writer in favor of the signer. How does English common law play into this??)

"as the framers expected that"

Nowhere in the Constitution does it say that it is implementing the Framers expectations or intent. This begs the very question that needs to be answered. Even most originalists have (unexplainably and without Constitutional justification) moved away from original intent originalism to original meaning originalism. =)

The unambigious bottom-line is this. The Constitution is ambigiuos with respect to the role of the judiciary. Deal with it! No amount of self-righteous bashing of visionary Supreme Court justices (like John Marshall) will change any of that.
5.15.2007 3:52pm
Viscus (mail) (www):

It is odd that you claim that there is no such thing as the proper method of interpretation, while you simultaneously are critical of Scalia.


I am not critical of Scalia because he is a visionary. I am critical of Scalia because with great stealth he wraps the Constitution around his own views and then castigates others in a self-righteous manner who do not follow his own view, which is not Constitutionally required.

If he were to honestly say, "My method of interpretation is not required by the Constitution, but, in my opinion, my method of interpretation is better for the following reasons and I hope you consider my method as a principled means of arriving at decisions in the face of textual ambiguity," I would not have a problem with him at all. What I do have a problem with is his self-righteousness, acting as though all who do not cave in the face of his personal point of view regarding interpretative methodology are somehow disregarding the Constitution itself.


If we decided Constitutional cases by flipping a coin would that be wrong? On what basis would you say that was wrong.


That you wish that the Constitution said something, does not make it so. I think coin flipping to decide cases would be such a bad approach, I actually think it would be just as bad as Scalia's interpretative methodology. Does the Constitution forbid it? No. Should we pretend it does? No. We should simply admit that the Constitution simply does not have all the answers that we might wish it did.

The framers probably figured (rightly) that no judge would decide cases using this method and they had many other issues to deal with as well. They left many other ambiguities. Such as what exactly constitutes impeachable behavior (maybe they were thinking that judges who did this might be impeached) and whether or not advisory opinions are permissable.

The Constitution is ambigious and does not have all the answers we wish it might. Deal with it.
5.15.2007 4:03pm
AK (mail):
First of all, we had a Revolution, in part, to overthrow the laws of England.

And yet the common law survives to this day. Apparently the Revolution wasn't as effective as I thought, because we still have strong remnants of English law in our law.

Second, you have just provided support for visionary judging, since their is in fact a history of such in English legal history.

I'm not sure that I have, but if I am I don't care. I'm not trying to debate you on the issue of what it means to be a "visionary" judge. I'm attempting to figure out just what you think it means to be a judge. As far as I can tell, you don't think judges are bound to decide cases based on anything. Basically, they can use any means that they can dream up to decide cases, and all of that is perfectly Kosher. It's telling that the one point that you did not respond to is what I said about judges deciding cases based on a coin flip. Once again: nothing in the Constitution explicitly forbids such a means of deciding cases, just as nothing requires the judges to use any other means of interpretation. That doesn't mean that all means of interpretation are equally valid.

The common law is all about judges being little legislatures and making new law.

Without getting too deep into philosophy of law stuff, I think the prevailing view is that the common law is about enforcing existing expectations. It isn't about enshrining judges as "little legislatures" to create new laws based on the personal preferences.

Third, nothing in English history tells us how our Constitution (which was the product of a Revolution for goodness sake!) should be interpreted.

Tell that to the Warren court, which in Miranda v. Arizona traced the history of the privilege against self-incrimination from its English origins to enshrinement in the fifth amendment.

Our Constitution is a product of its times, written by men educated in the English legal system. If we want to understand what certain words and phrases in constitution mean, we have no choice but to look to English law.

Fourth, nowhere in our Constitution does it say "though shalt refer to Blackstone's Commentaries on the Law of England as the authoritative source in interpreting this American Constitution."

No, but again I return to the coin flip: no where does it say "you can't decide cases based on coin flips."

But if 700 years of English history and Blackstone's commentaries are all we needed to determine the role of American judges, why did this issue arise in the first place?

I never said that a perusal of Blackstone will reveal the answer to every question one could possibly have about constitutional interpretation. It's one source among several.

Your argument is that judges are bound by nothing in deciding cases and interpreting the constitution. I counter that coin flips and ouija boards are suspect methods, and ones that the framers would not have approved of, despite an absence of textual support. My point is that when someone schooled in English law creates an office called "judge" without further elaboration on the powers and duties of that office, it's fair to look to English law to determine what those powers and duties should be.
5.15.2007 4:06pm
AK (mail):
Nowhere in the Constitution does it say that the views of the Framers are to be favored over the views of the Ratifiers.

I'm growing tired of your sophistry and your inability to stay on topic.

I'm not arguing for interpretation based on the internal views of the framers, blah blah blah. I believe constitutional provisions should be interpreted as they were understood at the time of ratification, yadda yadda yadda.
5.15.2007 4:13pm
AK (mail):
I would not have a problem with him at all. What I do have a problem with is his self-righteousness, acting as though all who do not cave in the face of his personal point of view regarding interpretative methodology are somehow disregarding the Constitution itself.

You seem like a pretty sharp guy, capable of using Westlaw or Lexis or Google. It would be helpful if you provided examples of Scalia saying these things.
5.15.2007 4:17pm
andy (mail) (www):
Viscus, how is it possible that the rejection of legislative history is an invention of Scalia? Criticisms by the Court regarding the use of legislative history go far back, see, e.g., Aldridge v. Williams, 3 How. 9, 24 (1845) ("In expounding this law, the judgment of the court cannot, in any degree, be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself."); Dubuque &P.R. Co. v. Litchfield, 64 U.S. 66, 82 (1859) ("What we have been contending for is, that in the construction of this statute the court should confine itself to the language of the law."); U.S. v. Trans-Missouri Freight Ass'n 166 U.S. 290, *318, (U.S.1897) ("All that can be determined from the debates and reports is that various members had various views, and we are left to determine the meaning of this act, as we determine the meaning of other acts. from the language used therein. There is, too, a general acquiescence in the doctrine that debates in congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body.").

That took me about 15 minutes to find. I am sure there are hundreds more instances of the Supreme Court, in the 1800s, telling us that it is inappropriate to psychoanalyze legislators. How is this an "invention" of Scalia?
5.15.2007 4:26pm
andy (mail) (www):

You just can't handle the truth. Scalia is an usurper trying to shove his vision down our throats, all the while asserting that his vision is somehow Constitutionally required when it emanates from himself and not the Constitution.


Also, I suppose you are going to argue that Scalia is actually just a reincartation of various Justices/courts who have rejected the use of legislative history over the past 200 years (so he also "plain made up" the statements of the Court in the 1800s), so let me pre-empt you by saying do not believe in reincarnation. I agree that, if one believes in reincarnation, then Scalia might have just "plain made up" the distinction between a statute and legislative history.
5.15.2007 4:32pm
Viscus (mail) (www):
andy,

Invention of Scalia and others. =)

It isn't in the Constitution. It is merely one view of interpretation advanced by some Supreme Court justices from time to time.

And yes, Supreme Court justices have been advancing views not in the Constitution from the very beginning. (i.e. For example the opinions of Justices refusing to write advisory opinions.)
5.15.2007 4:34pm
A.C.:
I'm not going to argue with Viscus here, but I'll restate my original question for anyone who wants to chime in.

How visionary are judges supposed to be in times of relative social and economic stability? I don't have a clear-cut definition of "visionary" in mind here, but I think it definitely involves some departure from whatever the status quo is at the time.

I guess my underlying notion is that law goes through periods of rapid change when social conditions change, but that the phase after that is naturally one of working out the details and possibly pruning back areas where the law got too far ahead of itself. We seem to be in the latter kind of phase at the momement, but that doesn't strike me as a bad thing. If we happen to find ourselves back in the other kind of phase some time soon, well, it'll be interesting, but I don't think those phases are always nice to live through.
5.15.2007 4:54pm
Viscus (mail) (www):

And yet the common law survives to this day. Apparently the Revolution wasn't as effective as I thought, because we still have strong remnants of English law in our law.


And there are also major differences. Maybe the Revolution mattered more than you think. =)


I think the prevailing view is that the common law is about enforcing existing expectations. It isn't about enshrining judges as "little legislatures" to create new laws based on the personal preferences.


When a judge makes a new rule in the common law system, is he enforcing the existing expectations of the plaintiff or the defendant? =)


Nothing in the Constitution explicitly forbids such a means of deciding cases, just as nothing requires the judges to use any other means of interpretation. That doesn't mean that all means of interpretation are equally valid.


Thank you for conceding my major point. I will make one modification to your concession, and then we will be in agreement. When choosing between different methods, it is not about the validity of different approaches, it is about the wisdom. Just because you disagree about the wisdom of an approach, that does not render the approach invalid or illegitimate.


Tell that to the Warren court, which in Miranda v. Arizona traced the history of the privilege against self-incrimination from its English origins to enshrinement in the fifth amendment.

Our Constitution is a product of its times, written by men educated in the English legal system. If we want to understand what certain words and phrases in constitution mean, we have no choice but to look to English law.


I would no more enshrine the Warren courts approach to interpretation into the Constitution than Scalia's approach.

One might convincingly argue that, Madison, being a creature of a particular time and place, was inspired by English law in the drafting of the Fifth Amendment. Does this mean we must look to English tradition in interpreting the Amendment, instead of just the text or our own traditions? That an approach that didn't look to English tradition would be illegitimate? I don't think so!

I am not making the argument that looking to English law is illegitimate. I am not an Anglophobe! I am making the argument that their is nothing in the Constitution that compels one to look at that particular source. Furthermore, there is nothing in the Constitution that tells you what weight to put on historical sources that lean in different directions.


No, but again I return to the coin flip: no where does it say "you can't decide cases based on coin flips."


You have addressed this in response to someone else above. You are right, the Constitution doesn't say that judges cannot decide by coin flips just as it doesn't say that judges can't give advisory opinions. These issues, if they are resolved at all, will or have been resolved by Supreme Court decisions, not the Constitution. The Constitution does not prevent every practice we may wish it did. Deal with it. (Although, I don't see why Congress could not simply impeach a Justice that decided cases by coin flips. But, on the other hand, there is nothing in the Constitution that would require Congress to impeach.)


I never said that a perusal of Blackstone will reveal the answer to every question one could possibly have about constitutional interpretation. It's one source among several.


Not only is it one source among several. It is on optional source among several. Nothing in the Constitution requires that one reference Blackstone. =)


Your argument is that judges are bound by nothing in deciding cases and interpreting the constitution. I counter that coin flips and ouija boards are suspect methods, and ones that the framers would not have approved of, despite an absence of textual support.


No doubt, the framers would disapprove of judges deciding cases with coin flips and ouija boards. So would I. That doesn't mean it is forbidden by the Constitution! Nothing in the Constitution requires us to consider the opinions of the framers, but you citing their opinion suggests otherwise.


it's fair to look to English law to determine what those powers and duties should be


It is also fair not to look to English law.


I'm not arguing for interpretation based on the internal views of the framers, blah blah blah. I believe constitutional provisions should be interpreted as they were understood at the time of ratification, yadda yadda yadda.


Funny, you just said that the framers would disapprove of coin flips and oija boards. Sounds like you care what their intentions are. Oh wait! I know. Their intentions determine meaning! I mean, the framers understood English. Surely they would not have written anything they disapproved of. Therefore, the meaning must match their intentions! =)

No? Maybe they just didn't write it down because they didn't think it would be a problem and they thought that impeachment would check unreasonable judges. =) Or maybe what they would approve of or disapprove of isn't relevant at all!

Once again, nothing in the Constitution says we must go with original meaning or any other approach. Not only that, originalists cannot even figure out what they believe (or was the shift from original intent to original meaning itself required by the Constitution. If you stare at it long enough, maybe it will says "In the late 20th century, though shall shift from original intent to original meaning!"


You seem like a pretty sharp guy...


Yes. That is where I get my massive ability to engage in sophistry and stray off topic. =)


It would be helpful if you provided examples of Scalia saying these things.


The self-righteous acidic venom that Scalia directs towards his colleagues is well-known. Read A Matter of Interpretation. Scalia doesn't think that his method is merely convenient or another way of looking at things. He has a my way or the highway attitude.
5.15.2007 5:04pm
Pendulum (mail):
I think coin flipping to decide cases would be such a bad approach, I actually think it would be just as bad as Scalia's interpretative methodology. Does the Constitution forbid it? No. Should we pretend it does? No.

Would you apply that same approach to a lower court judge enforcing a contract between a landlord and tenant? Or in that case, does the statuatory text actually begin to mean something?

Viscus, what's your theory of constitutional interpretation? You seem very critical of textualism/original meaning, so I'm hoping you can provide something else which is nonetheless consistant, systematic, and not arbitrary.
5.15.2007 5:27pm
andy (mail) (www):

Once again, nothing in the Constitution says we must go with original meaning or any other approach.


My problem with your style of argument is that it does not tend to prove anything at all. Yes, you are right, the Constitution does not explicitly say "don't use legislative history" or "use legislative history." And yes, the Constitution does not explicitly say, "these words are written in English," rather than "these words are not written in English." Further, the Constitution does not say "these words should be interepreted to mean what they mean," rather than "these words should be interpreted to mean the exact opposite of what they mean."

No matter which method of interpretation you use, of course you must use a legal fiction. But that doens't render the whole enterprise invalid, and it surely does not mean that one method of interpretation does not fit within the structure of the Constitution better than another. All it means is that there are no absolute truths, but nihilism is not a very useful way to go about judging.

I just cannot see any good argument for using legislative history as an authoritative expression of Congressional intent (as opposed to reviewing committee reports as, say, the equivalent of law review articles). The argument that statutes mean whatever a committee staffer thinks it means does not seem to fit into the structure or history of the Constitution. The document was ratifed by "the People"; shouldn't the laws be interpreted in the way that the People would understand them (that is, according to their ordinary, natural meaning), and not in the way the legislators may have secretly understood them?

You will undoubtedly retort that "the Constitution doesn't say that we must interpret law by the way that a reasonable member of the public would understand them, rather than by the way that a legislator would understand them." I just don't see why that matters -- I understand that we can take a nihilistic approach, but that just doesn't take us very far. No matter what interpretive approach you take, you must invoke some type of legal fiction; the question is which legal fiction better fits the constitutional structure.
5.15.2007 5:27pm
Viscus (mail) (www):

Or in that case, does the statuatory text actually begin to mean something?


I never said that statutory text was unimportant.


Viscus, what's your theory of constitutional interpretation? You seem very critical of textualism/original meaning, so I'm hoping you can provide something else which is nonetheless consistant, systematic, and not arbitrary.


First, in a situation where the Constitution is ambigious, you are not going to be able to avoid the exercise of discretion. Second, in a system with multiple interpreters who all have their own philosophies, jurisprudence will never be consistent or systematic. Scalia doesn't value systematic consistency when he talks about overturning precedent.

These features (consistent, systematic, and not arbitrary (which I take to mean not based on the discretion of the judge)) while possibly desirable in the abstract, simply cannot be implemented in a system with multiple interpretators who all take their own permissable approaches to interpretation. Furthermore, to focus on these values alone would mean neglecting other important values. (Such as flexibility and justice in the individual case.)

My point is not that there is a superior approach to originalism/textualism. My point is that these approaches are not required by the Constitution. The best argument one can muster is merely that these create more preferred results, from your own perspective. But that argument certainly lives or dies based on what our heterogeneous preference functions are.

Here is what an economist might say and what I would say. Each interpretative methodology has its own costs and benefits. Which one is "best" is determined by the objectives one wishes to advance. As is typically the case, focusing on one feature one wishes to maximize will have costs. An absolute determination to be consistent, for example, would mean never overturning Dred Scott. An absolute determination to advance one owns (uncertain) coneption of original meaning would mean disregarding precedent and destabilizing society.

My argument is that there is not an objectively best method of interpretation. If I were to attempt to satisfy your request, by providing my own "best" method of interpretation, that would not only enable you to shift the burden to me to defend my method thereby distracting from my objective of showing that the embrace of originalism itself is discretionary, that would contradict my argument that their is no best or required method of interpretation.

Note. That there is no best method of interpretation does not mean that their are not better methods in particular contexts if and when you fix the objectives you want to maximize and what you are willing to sacrifice to obtain other desirable attributes.
5.15.2007 5:59pm
Viscus (mail) (www):

I just cannot see any good argument for using legislative history


Thank you for conceding my point. All you have is that you can't see any good. Well, I can see good in it. Because it sometimes can clarify the problem that was the object of the legislation in question. Yes sometimes legislative history is ambigious, just like statutes. But sometimes it is not as ambigious as the statutes one is interpreting, especially with respect to how they should be applied in a particular context.

The only thing you have is your (1) point of view and (2)your desire to impose your point of view on those who disagree.

That desire to impose your point of view, if you are like Scalia, transforms into rhetoric that paints those who disagree with you as somehow unfaithful to the Constitution and their interpretative methodology as illegitimate compared to your own.

When, as you concede, you are relying on "legal fictions" you should be much more humble about presenting a point of view. I don't have a problem with the argument that legislative history is not useful in a particular context. I don't agree with the assertion that legislative history is never useful, but I don't have a problem with someone making the argument. However, I do have a problem with an argument that those who use it are somehow involved in an illegitimate endeavor. This is coming from someone who is relying on "legal fictions" themselves?


I just don't see why that matters -- I understand that we can take a nihilistic approach, but that just doesn't take us very far. No matter what interpretive approach you take, you must invoke some type of legal fiction; the question is which legal fiction better fits the constitutional structure.


It matters because the question of what "legal fiction" better "fits" the constitution is not an objective one and therefore you have no justification in doing anything more than suggesting the wisdom of your intepretative approach as opposed to the alternatives. I am arguing for a position of greater humility (not unlimited humility!) in our interpretative endeavors -- humility that is sorely lacking in the likes of Scalia and other hardcore originalists who condemn the views of others as illegitimate even as their approach finds no more endorsement in the Constitution.
5.15.2007 6:16pm
andy (mail) (www):
So bascially your argument is that there is no one method of interpretation that is required, but since Scalia follows one, he must be wrong, even though you cannot point to any better approach?

Pardon me if I'm not convinced...
5.15.2007 6:21pm
andy (mail) (www):

"Thank you for conceding my point. All you have is that you can't see any good."


for someone who rejects textualism, you have an interesting tendency to interpret statements very literally.



"I am arguing for a position of greater humility (not unlimited humility!) in our interpretative endeavors -- humility that is sorely lacking in the likes of Scalia and other hardcore originalists who condemn the views of others as illegitimate even as their approach finds no more endorsement in the Constitution."


Well, if you are saying that rhetoric and exaggerations don't have anything to do with the debate, sure, fair enough. But i find your ultimate conclusory:

"I can see good in it. Because it sometimes can clarify the problem that was the object of the legislation in question."

Well, who says that it can "clarify the problem"?

That is what we are debating over -- whether it can be used to clarify the problem, or, instead, if it's an illegitimate source to consult. If your argument is that LH should be used to clarify problems because it can "clarify problems," you have just begged the question. *Why* does a statement of a lobbyist or committee staffer or a single congressperson clarify the problem of determining what the collective body enacted?
5.15.2007 6:37pm
Sebastian Holsclaw (mail):
"You are right that the Constitution does not forbid deciding cases by flipping a coin. But, if that is how a particular justice decided his vote, it would be a stretch to say he or she would be subject to impeachment."

People, Viscus says that there would be nothing unconstitutional about deciding cases by coin flip. No further argument is needed. His position has internal logic, even if though it is completely nonsensical as applied.
5.15.2007 6:41pm
andy (mail) (www):

People, Viscus says that there would be nothing unconstitutional about deciding cases by coin flip. No further argument is needed. His position has internal logic, even if though it is completely nonsensical as applied.


Yeah, I guess that puts the discussion in perspective. It's still interesting to discuss.
5.15.2007 6:58pm
David M. Nieporent (www):
Your point? Where in the Constitution is Scalia's method of intepretation mandated? Does it emanate from the "penumbra" of the Constitution? Or did Scalia make it up? Does the shift from original intent originalism to original meaning originalism also emanate from the "penumbra" of the Constitution, or do you think that shift is more a product of human discretion?
No, it doesn't emanate from the penumbra of the Constitution, and no Scalia did not make it up. No. It emanates from the nature of a constitution -- any constitution. The purpose of a constitution is to bind future polities to a specific set of substantive and/or procedural rules. If one adopts an interpretive philosophy that fails to accomplish this, then one has negated the entire raison d'etre of that constitution.

The switch from original intent to original understanding comes from something you ought to try -- people listening to criticism of their views and realizing that they were mistaken.

As for the alleged contradiction between citing the Federalist Papers and not citing legislative history, there is none -- precisely because of that switch. The Federalist Papers are evidence of original understanding; legislative history is evidence only of original intent. (What's worse is that it's very poor evidence of original intent, because there's no evidence that the people who voted on the bill ever saw most of the "history" that judges cite.)

I am not critical of Scalia because he is a visionary. I am critical of Scalia because with great stealth he wraps the Constitution around his own views and then castigates others in a self-righteous manner who do not follow his own view, which is not Constitutionally required.
Viscus having a problem with someone because of self-righteousness would be like George Steinbrenner complaining that another baseball team spends too much money on their player payrolls. (And at least Scalia has the guts not to be anonymously self-righteous, unlike Viscus!)
5.15.2007 7:52pm
Viscus (mail) (www):

It emanates from the nature of a constitution -- any constitution. The purpose of a constitution is to bind future polities to a specific set of substantive and/or procedural rules. If one adopts an interpretive philosophy that fails to accomplish this, then one has negated the entire raison d'etre of that constitution.


And Roe v. Wade emanates from the "nature" of the Bill of Rights. =) Nice try. But you have just conceded my point.

You can take the "nature" of the Constitution and fill it up with your particular biases all you want. But don't act like your biases have anything to do with the Constitution.


The switch from original intent to original understanding comes from something you ought to try -- people listening to criticism of their views and realizing that they were mistaken.


Mistaken about what exactly? About what a Constitution is? Or mistaken about what brings about the best results? The fact that their was a shift proves that originalism isn't required in the first place. It is nothing more than the subjectively desired approach of conservatives who want to tilt things in an ideologically preferred direction.


The Federalist Papers are evidence of original understanding; legislative history is evidence only of original intent.


Word games will not save your intellectually bankrupt point of view. This distinction does not come from the Constitution. Period.

Are the Federalist Papers really evidence of the "meaning" of words in the Constitution? Not any more than legislative history is evidence of the meaning of the words in a law.

The Federalist papers tended to talk about what was intended by the words and structure of the Constitution. I suppose one might think one can go from intent to "meaning" but it is not exactly a focus on the meaning of particular words, narrowly considered.

Likewise, legislative history tends to talk about what is intended by the words in a law. And also about the meaning of particular words used by a law.

Face. This distinction, if it can survive, only survives on the basis of an arbitrary distinction that people like Scalia find convenient. This distinction is found nowhere in the Constitution and Scalia has no right to criticize the use of legislative history as illegitimate.


What's worse is that it's very poor evidence of original intent, because there's no evidence that the people who voted on the bill ever saw most of the "history" that judges cite.


That is funny. Most of the framers never got to see the Federalist papers until long after they voted for the language of the Constitution (if at all). Most of the ratifiers never saw the Federalist papers at all before voting for or against the Constitution. It is nearly like the sneaky Hamilton and Madison were sort of inserting their own piece of "legislative history" into the record without the consent of their colleagues, who surely would deserve to have a right to vote on it if they had known the extent that the papers would be relied on in interpreting the Constitution. =) Or how about those ratifiers who knew nothing at all about these papers (that would be a majority of the ratifiers) when they cast their vote?

Sorry. The idea that we should stretch to include the Federalist Papers as an authority for Constitutional interpretation is laughable, given the view that legislative history should not be considered. But most importantly, the central point here, is that this distinction between using these legislative history on one hand and the Federalist papers on the other has no more Constitutional authority than your artifical an unpersuasive claim that the Federalist papers are only about "meaning" while legislative history is only about "intent." Nice try though.

But go right on ahead making stuff up that has no Constitutional authority whatsoever. The more you do so, the more I get to snicker whenever you complain about Roe v. Wade or legislating from the bench or judicial activism. =)


And at least Scalia has the guts not to be anonymously self-righteous, unlike Viscus!


As soon as I am appointed to the Supreme Court, I will not use anonymity as I rip into Scalia in my judicial opinions. I swear!
5.15.2007 9:00pm
Viscus (mail) (www):

People, Viscus says that there would be nothing unconstitutional about deciding cases by coin flip. No further argument is needed. His position has internal logic, even if though it is completely nonsensical as applied.


Of course. What could be more nonsensical than having a position that the Constitution doesn't address an issue that it doesn't address in the face of a bizarre hypothetical that not only has never happened, but will never happen. =)

You wishing that the Constitution addresses the "problem" of Supreme Court justices using coin flips to decide cases is no different than someone else wishing that the Constitution addressed abortion.

There is a democratic way to stop coin-flipping Justices, by the way. (And believe me, I really do believe that coin-flipping justices are a major problem. And that our Constitution is a mockery and a joke if it doesn't address it!) The democratic way to address such a bizarre occurrence is called impeachment. =)
5.15.2007 9:05pm
Viscus (mail) (www):

That is what we are debating over -- whether it can be used to clarify the problem, or, instead, if it's an illegitimate source to consult. If your argument is that LH should be used to clarify problems because it can "clarify problems," you have just begged the question. *Why* does a statement of a lobbyist or committee staffer or a single congressperson clarify the problem of determining what the collective body enacted?


Legislative history can also be about the debate of both sides. What if both sides, those for and against a piece of legislation agreed in their argument that the legislation would have a particular effect, and their only disagreement was about whether that effect was good or bad.

Surely, that legislation is meant to have a particular effect could be quite informative in interpretation. To use Neiporent's rhetoric, it could shed light on the "original meaning" of the words used in the law. =)

I am not saying that legislative history will always be helpful. I am saying that it is sometimes helpful in certain contexts. Anyone who is says that legislative history never has the potential to be helpful is full of it. Just as one would be foolish to think that it is always helpful. Sometimes it will be helpful, but we have to look and see. If something was inserted by a lobbyist and not part of debate, that is certainly significant.

But regardless of whether it is helpful or not, using legislative history in interpretation does not violate the Constitution and is not illegitimate.
5.15.2007 9:11pm
Viscus (mail) (www):

So bascially your argument is that there is no one method of interpretation that is required, but since Scalia follows one, he must be wrong, even though you cannot point to any better approach?


My argument is not that Scalia is especially "wrong." My argument is that he is not especially "right."

Say you have two people who appear to be exactly equal height, A and B.

Say that X argues that B is actually taller.

If I argue that there is no evidence that B is actually taller, such an argument is not geared towards establishing the opposite, that A is taller. If my goal is to establish that A and B are probably the same height, I need not argue that A is taller, but can instead concentrate on explaining why the argument that B is taller is unreliable.
5.15.2007 9:23pm
David M. Nieporent (www):
That is funny. Most of the framers never got to see the Federalist papers until long after they voted for the language of the Constitution (if at all).
Which would be relevant if the question were intent, rather than understanding. But it isn't, so the "framers" don't matter; the ratifiers do. The Federalist Papers were published publicly, before the Constitution was ratified.

And Roe v. Wade emanates from the "nature" of the Bill of Rights. =) Nice try. But you have just conceded my point.
Nope; you simply are unable to understand the issue. There's nothing inherent in a Bill of Rights that mandates the ability to terminate a pregnancy. It is inherent in a constitution that it be interpreted as it was when it was enacted.

Mistaken about what exactly? About what a Constitution is? Or mistaken about what brings about the best results?
No. Mistaken about how to correctly implement originalism.
5.15.2007 9:24pm
Viscus (mail) (www):

The Federalist Papers were published publicly, before the Constitution was ratified.


I think you should acquaint yourself with history better.

(1) The Federalist Papers were not very well distributed outside of New York.

(2) Many states ratified before the Federalist Papers were very far into publication. The papers were started at the end of October, Pennsylvania, New Jersey, and Delaware ratified in December.

(3) New York, where the Federalist Papers had the most influence, was not even needed to ratify.

(4) Most of the ratifiers were not very familiar with the Federalist Papers (if at all) when they voted to ratify.

Maybe you should take a couple of courses on U.S. History. It might help you get some basic facts (and presumably your Constitutional theory) straight.


you simply are unable to understand the issue


Your right. Your simplistic point of view is like rocket-science to me.


It is inherent in a constitution that it be interpreted as it was when it was enacted.


How was the Constitution interpreted when it was enacted? If I recall, Hamilton and Jefferson and many others had some nasty arguments over meaning. I guess they just didn't "understand" either.

But, assuming your right, who told you this? God. It must be, or your a dirty heathen! Ahh.. the self-righteousness so typical of Federalist Society members is beginning to emerge... =)

You want to know the truth. What is "inherent" in a Constitution is what mere mortal human beings decide is inherent. You can try to smuggle your personal views into the "nature" of the Constitution, but you will only fool the less intelligent among us.


Mistaken about how to correctly implement originalism.


That's funny. It seems that originalists themselves cannot even figure out how to correctly implement originalism. But I thought it was "inherent" in the "nature" of a Constitution? I don't understand why originalists have had so much trouble figuring out how to implement originalism when originalism is just sitting right there, inherent in the document itself!

Look, you aren't going to win this one. It is obvious that the selection of any particular interpretative methodology is not required by the text of the Constitution. The "natural law" mumbo-jumbo that you are spewing about the "inherent nature" of all Constitutions is not worth the electronic bits that you have corrupted in expressing this obviously and blatantly wrong point of view.

But, if you insist on suggesting that I am "unable" to understand your natural law theories, that is fine. A lot of crazy people feel misunderstood. =) The tendency, of course, is to blame "others" for not understanding them, rather than reflecting on whether they are coherent in the first place.

But please, do spare me your very own version of history. How is a document that is not well-distributed conclusive evidence of the meaning that the ratifiers thought the Constitution had when they didn't even read it!!??
5.15.2007 10:31pm
andy (mail) (www):

"What could be more nonsensical than having a position that the Constitution doesn't address an issue that it doesn't address in the face of a bizarre hypothetical that not only has never happened, but will never happen."


I would think that the judicial power, if anything, meant the power to apply the Laws of the land, not coin flips.

But, I agree with another poster -- if you think the judicial power extends to the power to decide cases by coin flips, rather than by applying the Law, this debate will not go anywhere.
5.15.2007 11:20pm
Viscus (mail) (www):

I would think that the judicial power, if anything, meant the power to apply the Laws of the land, not coin flips.


I think there is an excellent argument that if a judge decided a case by flipping a coin, he would have deprived one of the litigants of life, liberty, or property without due process of law.

This qualification does not come from Article III, however.

But more importantly, the Constitution is not a perfect document. It does not cover everything that it might be thought desirable to cover.

That you wish the Constitution explicitly forbid coin flipping as judicial decision making does not make it so. Anymore than someone elses wish that the Constitution forbids laws against arbortion does not make it so.

That you all are harping on this point actually is a concession to my argument. Your reason for saying that the Constitution must address coin flipping as a method of adjudication is because you think it is highly desirable that it do so, and nothing more.

The argument seems to go like this:
(1) Banning judicial decision-making by coin flipping is highly desirable.
(2) Therefore, the Constitution must forbid it.

That is pure judicial activism! And suggesting that I am unreasonable for not instantly agreeing that the Constitution bans coin-flipping, you demonstrate that you are nothing more than judicial activist and further that you have no basis for criticizing judicial activism in others. Go ahead and complain about the Warren court, but your going to have to cry on another shouldier when you defy the very principle (no judicial activism!) upon which you criticize that court.
5.16.2007 3:38am
David M. Nieporent (www):
As usual, Viscus, you don't understand the topic under discussion. It's not that the Constituion "bans" coin-flipping; it's that it doesn't authorize it. The "judicial power" is not the power to dress in black robes and write stuff down. It's the power to decide cases according to the law. Sheesh, why don't you stick to a topic you get, like pro wrestling or something?
5.16.2007 6:00am
Sebastian Holsclaw (mail):
"Of course. What could be more nonsensical than having a position that the Constitution doesn't address an issue that it doesn't address in the face of a bizarre hypothetical that not only has never happened, but will never happen."

Considering it was YOUR hypothetical from the previous thread, it is surprising that you have such problems with it now.

"I think there is an excellent argument that if a judge decided a case by flipping a coin, he would have deprived one of the litigants of life, liberty, or property without due process of law."

Now we see that you don't really believe what you have been saying before. Under your theory if taken seriously, we don't know what 'depriving someone of life, liberty, or property without due process of law' IS. It could be anything. You have specifically denied the ability to discriminate between different methods of analysis. Your understanding of jurisprudence has completely undercut the force of an appeal to the text.
5.16.2007 1:26pm
andy (mail) (www):

That you wish the Constitution explicitly forbid coin flipping as judicial decision making does not make it so. Anymore than someone elses wish that the Constitution forbids laws against arbortion does not make it so.


I still cannot believe that you think that the "judicial power" extends not to interpreting the Laws, but to deciding cases by coin flips as well -- the People never granted the judiciary that power.

Of course, you will just retort that the judicial power was not actually granted to the courts by the people, but that i only "wish" it were the case; and that the legislative power was not vested to the legislature, but only that i "wish" it were so.

Just a hint, if you want to persuade others (rather than just use your cloak of anonymity to make outlandish statements), it might be better to accept the possibility that not everything everyone says (except you, of course) reflects his own private wishes, but might instead reflect a good-faith attempt to understand the law.
5.16.2007 1:46pm
Viscus (mail) (www):
Sebastian Holsclaw,

This is ridiculous. Obviously, flipping coins can be done independently of content of law. Thus, depriving someone of a property based on a coin flip would not provide due process of law.

But note. This is not an Article III restriction.

David M. Nieporent,


The "judicial power" is not the power to dress in black robes and write stuff down.


Recognize this. While I think that this interpretation you advance is entirely sensible, you should recognize that it is not completely derived from the text of Article III, but is also a function of what you think is sensible. In this case, our sensibilities point in the same direction. The difference is that I recognize when my normative sensibilities are being invoked and you apparently do not.

andy,


I still cannot believe that you think that the "judicial power" extends not to interpreting the Laws, but to deciding cases by coin flips as well -- the People never granted the judiciary that power.


I think that people cannot be deprive of property without due process of law. Flipping a coin to decide a civil case would deprive someone (the plaintiff or the defendant) of property without due process of law under any interpretation (unless coin flips were written into a specific law as the way a dispute was to be resolved) since flipping a coin would allow decision-making without reference to any law. Thus, I do not believe it would be permissable. You don't need to stretch the words in Article III to go there.

In fact, I am fine with stretching the words "judicial power" in Article III to exclude deciding cases coin-flipping. But I am not going to pretend that what I am doing is interpreting the Constitution, as opposed to assigning a normatively attractive meaning to the words "judicial power." In the abstract, the words judicial power could include decision by coin-flipping or it might not. (The "Executive power" plausibly includes the power to make decisions by flipping a coin! A President who did this probably wouldn't get a second term, but there is nothing to stop him or her from doing this once elected.)

My point is this. An inevitable part of interpretation is assigning normatively attractive meanings to words. There is nothing inherent in the words "judicial power" that makes it mean anything more than the power of judges to make decisions regarding cases and controversies. There is nothing in the term "judicial power" that compels the adoption of a any particular methodology. There is nothing inherent in the words that excludes a methodology that includes coin flipping.

I agree that coin flipping would be an extremely distasteful and unprincipled means of deciding cases. But I recognize that just because I would strongly seek


if you want to persuade others...


I am uninterested in persuading you or anyone else of anything. You can believe what you want to believe. Your electoral significance is nil. More importantly, what you believe is independent of the truth. What I am interested in is the truth and the only reason I express myself is to gather insights that may or may not bring me closer to the truth. Your reactions may or may not help me formulate a more nuanced and more true point of view.

In fact, this discussion has led me to a more nuanced view. Examining the precise language of Article III. "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." I noted my initial instinct to think that coin flipping cannot be used to resolve a case "arising" from such laws, but rather must instead be resolved with reference to the law under which the case arises. I think, in fact, that this is the only interpretation of Article III that I find "reasonable" (as long as "arising" includes any laws that are relevant to the case and not merely those mentioned by the plaintiff in his pleadings). At the same time, I recognize that this is in fact an inference which is based on my own sensibilities, because it is logically possible for a case to arise under law A and then be resolved by something other than law A (say based on unrelated law B or a coin flip or on the pure unfettered discretion of the judge).

I recognize that to say that a case must be resolved based on the laws it arises under is an inference, based on the assumption that this is what is normatively desirable and sensible.

But at the end of the day, there is no escaping from normative judgments when it comes to interpretation. And the Constitution does not say how those normative judgments should be made. The Constitution does not dictate any particular ideological approach, whether it be one of the many variations on originalism or a Warren-court style.

I have not been arguing that Article III should be interpreted to allow coin flips. In fact, I believe the opposite. I have been arguing that the question of how Article III should be interpreted is in fact critical. That is, there is no escaping normative judgment when engaging in interpretation if one wants to arrive at sensible and reasonable results. The question then, is how those normative judgments should be formed -- that is, what interpretative methodology or methodologies should one adopt. But, as should be clear, the Constitution has nothing to say about what interpretative methodologies we should adopt or how we should make our normative judgments. Given this, there is no higher authority to appeal to when arguing for, say, originalism, or pragmatism, or any other approach. Thus, a pragmatist may criticize an originalist, but is no position to question the legitimacy of originalism as compared to their own approach. And vice-versa. At best, we are left arguing about the wisdom, not the legitimacy, of our different interpretative approaches.
5.16.2007 7:34pm
Brian K (mail):

I believe constitutional provisions should be interpreted as they were understood at the time of ratification


Whose understanding? How do you determine understanding? If we can't even agree on a common meaning today, why would people 200 years ago have a universally held idea of meaning?
5.17.2007 2:05am
Brian K (mail):

for someone who rejects textualism, you have an interesting tendency to interpret statements very literally.


For someone who embraces textualism, you have remarkably poor reading comprehension.
5.17.2007 2:18am
Brian K (mail):

It's not that the Constituion "bans" coin-flipping; it's that it doesn't authorize it.


Where does the constitution authorize originalism? That is Viscus's entire argument. At no point does the constitution affirmatively say "thou shalt interpret me using X methodology". Ironic how you accuse Viscus of not understanding the argument....
5.17.2007 2:33am
Sebastian Holsclaw (mail):
"Obviously, flipping coins can be done independently of content of law. Thus, depriving someone of a property based on a coin flip would not provide due process of law."

Says who?

On what basis do you derive your understanding of what is and is not "due process of law"? You have rejected the most obvious method--looking at the words and how they were understood when passed.

You have forcefully denied that there is any objective method to discriminate between ANY method of jurisprudence. Having done so, you need to find an alternate method if you are going to rely on "due process of law" as a legally meaningful phrase. So far you have offered nothing more than "because I want the phrase to outlaw coin flipping" which is what you accuse the rest of us of doing.
5.17.2007 12:36pm
andy (mail) (www):

On what basis do you derive your understanding of what is and is not "due process of law"? You have rejected the most obvious method--looking at the words and how they were understood when passed.


"No coin flipping" does not appear in the DPC; he just wishes that it did.
5.17.2007 1:04pm
Viscus (mail) (www):
Sebastian and andy,

Whatever the phrase "due process" means, the phrase "due process of law" indicates a relationship between due process and law.

So, if you are going to deprive someone of property, there must be a relationship between that deprivation and the law.

The outcome of a case determined by flipping a coin would have no relationship to the content of law. Thus, depriving someone of property by flipping a coin would not be "due process of law." No matter how the phrase "due process" is interpreted, "due process of law" implies that there is some relationship between "due process" and "law." Even if coin flipping could be considered a sort of "due process," it would not be a "due process of law."

I do not think that interpretation is ever entirely objective. If you two wish to argue that there is something a little bit normative here, I am actually fine with you making that argument. In fact, that is precisely the sort of argument I want you to make!

That is, in fact, my point. For interpretation to occur, we must employ normative judgments about how things should be.


So far you have offered nothing more than "because I want the phrase to outlaw coin flipping" which is what you accuse the rest of us of doing.


Yes, indeed. I am doing precisely what I "accuse" you of doing. Because what I "accuse" you of doing is inevitable and unavoidable when it comes to interpretation.

The ultimate point is that you have no basis to claim the normative judgment of others is illegitimate (though you might argue it is unwise) when you yourself in fact employ normative judgment in your competing interpretations.

So, as you can see, that I employ normative judgment in my own interpretations in no way detracts from my argument. Because my argument is that, in fact, such normative judgment is required in all sensible interpretations of the Constitution. You are playing into my hand when you accuse me of using normative judgments here. =)
5.17.2007 2:22pm