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Living Constitutionalism:
Michael Dorf has a new Findlaw column up on Who Killed the "Living Constitution"? in which he argues that " that the living Constitution is a problematic metaphor, but only because originalists like Justice Scalia either misunderstand or mischaracterize what it stands for." According to Dorf:
If the "living Constitution" metaphor is understood in the way that Rehnquist and Scalia understand it, then it is easy to see why the metaphor--if taken as a jurisprudential roadmap--would be bad for democracy. When judges rely upon the Constitution itself to hold a legislative act invalid, they serve the higher law, duly adopted pursuant to the rigorous ratification process. However, when judges "substitute" their own values for the Constitution's values, and then use those substituted values as the basis for invalidating legislative action, they illegitimately take important decisions away from the people's elected representatives.

Yet the foregoing is a valid critique only if champions of the living Constitution really think that they have a warrant to substitute their views for those of the Constitution. In fact, however, no serious judge, lawyer or academic argues for that.

Originalists and living-Constitutionalists both agree that where the constitutional text is clear, it controls. For example, Article II states that no person under the age of 35 can be President, and no champion of the living Constitution would argue that nonetheless an especially precocious 32-year-old should be deemed Presidency-eligible simply because she dislikes the textual limit.

Originalists and living-Constitutionalists part ways over how to interpret ambiguous provisions of the constitutional text. Originalists say that judges should resolve textual ambiguity by consulting the prevailing views of the Founding generation. (I explored the relation between this formulation of originalism and the more traditional focus on "framers' intent" in an earlier column, but we can put aside these nuances here.) The act of ratification by that earlier generation of Americans gave the text its power as law, and therefore, that earlier generation's understanding should prevail, originalists say.

By contrast, living-Constitutionalists believe that while the original understanding has some bearing on the Constitution's contemporary meaning, it is not the whole story. For living Constitutionalists, the act of ratification by people who are long dead, and whose numbers did not include any women or enslaved African-Americans, does not suffice to make the Constitution effective today. For us living-Constitutionalists, the Constitution's current authority derives at least in substantial part from the fact that we the living people accept it as authoritative. And if our acceptance validates the Constitution, then, as Justice Powell said in the Rummel case, the way in which contemporary Americans understand the Constitution's language should play a substantial role in how the courts interpret that language.
There is much that can be said about Dorf's column. Larry Solum has a nice response on his Legal Theory Blog. There he notes that Dorf has confused the problem of ambiguity with that of vagueness, and failed to take into account the degree to which the New Originalism allows, indeed requires, nonoriginalist constitutional construction when the language of the Constitution is vague. This is why Jack Balkin thinks that originalism is compatable with "living constitutionalism" and why back on 1999, I dubbed my approach to be "an originalism for nonoriginalists." Here is how Solum explains this distinction:
But the contemporary theoretical landscape is a lot more complicated than that. (Dorf is writing a short column and certainly isn't obliged to do a literature review in that context.) Dorf is assuming a theoretical move that might be called "incompatibilism"--the view that originalism and living constituitonalism are incompatible. But this view has been challenged, most prominently by Jack Balkin, who argues for "compatibilism"--the view that adherence to original public meaning is consistent with "living constitutionalism" in what we might call the "zone of construction" (relying on the Whittington-Barnett distinction between "interpretation" and "construction").

There is, however, a much deeper problem with Dorf's description of the theoretical landscape. Dorf says "Originalists and living-Constitutionalists both agree that where the constitutional text is clear, it controls," but "clarity" is itself a poor term to describe what is going on here. There are two distinct sources of constitutional "underdeterminacy": vagueness and ambiguity.

Ambiguity occurs when a constitutional unit of meaning (term, phrase, or clause) has more than one sense. When original public meaning (conventional semantic meaning at the time of constitutional utterance) is ambiguous, context usually resolves the ambiguity. Living constitutionalism is usually irrelevant in cases of ambiguity. The constitution uses the phrase "domestic violence" to refer to insurrection or revolt within the territory of the United States. No one sensible thinks that the fact that "domestic violence" has now acquired a new sense, referring to spouse and/or child abuse creates an ambiguity that should be resolved by reference to "living constituitonalism". Originalists and living constitutionalists should be agreed that when the context of constitutional utterance resolves an ambiguity, the disambiguated semantic content of the constitution has the force of law.

Vagueness occurs when a constitutional unit of meaning has borderline cases. For example, phrases like "executive power" or "freedom of speech" are vague. The central insight of the "New Originalism" is that the original public meaning of the Constitution can just be vague--original meaning can run out. When the constitution is vague, resolution of the vagueness (line drawing) requires what Keith Whittington calls "constitutional construction." But precisely because construction operates in the zone of vagueness where "original public meaning" (conventional semantic meaning at the time of constitutional utterance) runs out, there can be no deep disagreement between originalists (qua originalists) and living constitutionalists on the proper method of construction. Of course, particular originalists can disagree among themselves and with living constituitonalists about methods of construction. But when originalists turn their attention to methods of construction, they move beyond the core commitment of originalism to the proposition that the semantic content of the constitution wax fixed at the time of constitutional utterance. That is, the views of particular originalists about proper methods of constitutional construction are outside the core of originalism as a theory.
The phrase "natural born citizens" is ambiguous. It could be a term of art at the time of the Founding that refers in part to persons born in the United States and subject to its jurisdiction (or something even more particular as described here), or it could have the modern meaning of someone born naturally, i.e. not by cesarean section or in vitro fertilization. No one thinks, including Dorf, that we make this choice based on which meaning we like best. Everyone thinks we must ascertain the original public meaning of this term, whatever it may be. Most of the words and sentences in the Constitution mean the same today as they did then but sometimes the meaning of a specific phrase like "natural born citizen" is no longer part of our lexicon and is archaic. We then need to investigate and discover its original public meaning. By the same token, the original meaning of whole passages of the Constitution, like the Privileges or Immunities Clause of the Fourteenth Amendment, are now ignored because judges thought they got in the way of government power. These passages are now "dead" or, to switch the metaphor, they are "lost."

In contrast to ambiguity, as Solum notes, any word can be vague depending on the context, and so can the original meaning of a term in the Constitution. For instance, while the meaning of "search" has not changed since the founding, whether a particular activity is a search or not cannot be decided historically. Is the thermal image of a house to detect increased heat emanating from grow lights a search? All modern courts can do is apply the original meaning of "search" and then decide whether this activity is sufficiently close to the core or paradigm meaning of the term to be included. And judicial opinion on this question can evolve as part of a "living" constitutional law.

Moreover, Dorf is correct to note that some originalists might try to answer the question of construction by asking what the framers would have intended, but this is a residual carry over from the prior original intentions originalism that, at least in the abstract, has been largely abandoned. To ask how the framers would have decided a question is to pose a counterfactual not a factual question, and one that has no historical answer. Dorf would be right to criticize such originalists as back-sliders from original public meaning originalism, but he is wrong to tar all originalists, especially the New Originalists, with the same brush.

Similarly, I also think he he wrong to deny that some who famously used the term "living constitution" did so to justify the judicial alteration of the Constitution, especially by eliminating the parts they deem to be archaic. Consider Dorf's own views on the Second Amendment in which he posits that Supreme Court precedents should trump the original meaning of the text:
Although eclectic interpretive theories customarily list authoritative text as the first consideration in ascertaining meaning, I shall defer consideration of the Second Amendment's text as such until Part II. I do so not simply because the Second Amendment lacks a "plain meaning," but because, contrary to conventional wisdom, constitutional doctrine typically trumps constitutional text -- at least absent arguments of sufficient strength to overcome the principle of stare decisis.
Notice that he does not repeat this formulation of his approach in his Findlaw column probably because it would tend to conform to, rather then undermine, the stereotype of living constitutionalism. In his article, Dorf is careful to allow some role for precedent to be deemed mistakenly in conflict with the text when such conflicts are "clear." But, as typically practiced, the (selective) use of and adherence to precedent to "trump" an inconvenient original meaning of the text works precisely to substitute the judges meaning for that which was originally enacted. As practiced, therefore, this is "living constitutionalism" in its bad sense.

But Balkin's reconciliation of original meaning and living constitutionalism subtly alters the term "living constitution" to one that should be acceptable to originalists. So too has former Attorney General Ed Meese who initiated the modern debate over originalism with a series of speeches in the 1980s. I once heard Meese say something like this: Only a constitution that is still followed is still alive. A constitution whose terms are ignored because times have changed is a dead constitution.

That would be the whole Constitution. Even the "lost" parts like the Ninth Amendment and Privileges or Immunities Clause of the Fourteenth Amendment that restrict the powers of the federal and state governments, despite the fact that the Supreme Court in all its wisdom has decided these provisions of the text are meaningless.

Update: I think this exchange from the comments is worth adding to the original post:

Commenter: So what do originalists propose in the situation in which the Constitutional text is vague such that neither the text nor its history provides any clear answer? Such cases seem to me to be quite common among the tiny sliver of cases that reach the Supreme Court.

Me: There is no consensus "originalist" answer to your question. This is something originalists should be debating respectfully among themselves. What originalists should not do is default to "framers intent" without a serious defense of that method of constitutional construction. A lot will depend on your theory of constitutional legitimacy. If you think the legitimacy of the Constitution rests on (someone's) consent, you may do it one way. (But you had better have a reasonably well worked out theory of consent.) If you reject consent theories, as I do, and think the Constitution's legitimacy rests on the justice of the government it establishes coercively imposing laws on those persons who do NOT consent, then you may do it another way. In this spirit, I propose the adoption of a "presumption of liberty" to replace the current "presumption of constitutionality" as currently qualified by the Supreme Court doctrine of "fundamental rights."

Be this as it may, any constitutional construction must stay within the "frame" provided by original meaning. Just because original meaning cannot completely handle a particular case and controversy does not mean it does not limit the range of possible constitutional constructions available to a conscientious interpreter. An originalist rejects contradicting or overriding what original meaning there is with something the "interpreter" likes better. While this leaves considerable room for an evolving constitutional law, that is one reason why the Constitution is still useful after all these years. It is a feature not a bug.
I should also add that there are a great many "easy" cases resolved by original meaning, including some that the Supreme Court has long gotten wrong. Gonzales v. Raich is one recent example. In Raich only one justice even purported to apply original meaning, and that was Justice Thomas. Justice Scalia's concurring opinion was squarely within the New Deal Court's misreading of the "living" Constitution. The existence of hard cases of constitutional construction is no good reason to wrongly decide cases that are easily handled by original meaning, even if such a decision cuts against the grain of the four "liberal" justices' preference for strong federal power.

Cornellian (mail):
So what do originalists propose in the situation in which the Constitutional text is vague such that neither the text nor its history provides any clear answer? Such cases seem to me to be quite common among the tiny sliver of cases that reach the Supreme Court.
3.10.2008 3:03pm
John (mail):
Oversimplification is always risky, but if I could summarize the problem with many "living constitution" proponents, it is in this phrase from Dorf: "However, when judges "substitute" their own values for the Constitution's values..."

The problem is not that judges substitute their own values for the Constitution's values, but that they substitute their own values for the Constitution's WORDS.
3.10.2008 3:09pm
Randy Barnett (mail) (www):
John:

Very nice point.

Cornellian:

There is no consensus "originalist" answer to your question. This is something originalists should be debating respectfully among themselves. What originalists should not do is default to "framers intent" without a serious defense of that method of constitutional construction. A lot will depend on your theory of constitutional legitimacy. If you think the legitimacy of the Constitution rests on (someone's) consent, you may do it one way. (But you had better have a reasonably well worked out theory of consent.) If you reject consent theories, as I do, and think the Constitution's legitimacy rests on the justice of the government it establishes coercively imposing laws on those persons who do NOT consent, then you may do it another way. In this spirit, I propose the adoption of a "presumption of liberty" to replace the current "presumption of constitutionality" as currently qualified by the Supreme Court doctrine of "fundamental rights."

Be this as it may, any constitutional construction must stay within the "frame" provided by original meaning. Just because original meaning cannot completely handle a particular case and controversy does not mean it does not limit the range of possible constitutional constructions available to a conscientious interpreter. An originalist rejects contradicting or overriding what original meaning there is with something the "interpreter" likes better. While this leaves considerable room for an evolving constitutional law, that is one reason why the Constitution is still useful after all these years. It is a feature not a bug.
3.10.2008 3:18pm
Ben P (mail):

The problem is not that judges substitute their own values for the Constitution's values, but that they substitute their own values for the Constitution's WORDS.


But that's also exactly the converse argument against the originalists in many circumstances.

The "evolving standards of decency" phrasing came out of a cruel and unusual punishment context, so that example works as well as any.

When determining if something is cruel and unusual punishment, Originalism and Textualism can only take one so far. The text is somewhat vague, and while there is some evidence as to what the founders considered cruel and unusual, it's certainly not determinative.

I think it's very arguable then that some founders certainly didn't intend to create a document that would forever lock the United States into 18th Century norms of punishment. So a judge is well within his power to find something cruel and unusual that might not have been so in 1789.

But it's also equally arguable that these standards should be legislative.

But what happens when nearly all or most accept something as cruel and unusual, but a small minority don't? At the time the court almost certainly would have invalidated something that was "by long practice" cruel and unusual, but that a local government had decided to enact anyway.


I wouldn't necessarily say either is right, but I think there is far to much of the "This is what the constitution says and anyone who says otherwise is wrong"
3.10.2008 3:27pm
loki13 (mail):
John,

The problem, of course, is that words have meaning. Anyone who has dealt with a monstrously explicit contract or statute knows that no matter how well-drafted, no matter how precise, there will be ambiguities within the language itself, and situations will arise that could not have been planned.

The Constitution, while brilliant in some ways, and awful (most of the compromises dealing with slavery, including apportionment of the Senate) in others, is certainly not explicit. The vagueness of the Constitution has been a saving grace (the more specific, the longer), but it also requires a great deal of interpretation.

Is there anything in the Constitution that is not ambiguous? That is not to say that there are not clear cases either way, but is there any part of the Constitution in which you cannot imagine a case that brings two good-faith interpretations coming out with opposite conclusions?

Try this:
"neither shall any person be eligible to that office who shall not have attained to the age of thirty five years"

1. 80 yr. old- obvious.
2. 14 yr. old- obvious.
But... when do you have to turn 35? When (be *eligible* for the position) nominated? When elected by the electors? What if Congress changes the date of the electors meeting to before your 35th birthday? Is it upon swearing in? I can think of more outrageous scenarios, but even the most obvious language can give rise to difficulties.
3.10.2008 3:33pm
John McCall (mail):
Dorf's statement that "constitutional doctrine typically trumps constitutional text" is, in fact, unarguably true. I haven't read the article, but if his Part I is merely describing the present impact of the Second Amendment on American law, then it would be inappropriate to bring up normative questions of how the amendment ought to be interpreted; the important question is how it has been interpreted in established caselaw. Whether one believes it ought to be interpreted more broadly or narrowly, that's clearly a separate topic.
3.10.2008 3:59pm
Bad (mail) (www):
"Originalists say that judges should resolve textual ambiguity by consulting the prevailing views of the Founding generation."

This, of course, assumes that the judges in question are any good at all as historians, even of legal history. I would rate that assumption as questionable at best, and thus hope that originalists would take this principle with a considerable dose of self-skepticism, especially given the ideologically warped revisionist history judges on both sides of the political fence sometimes by into.
3.10.2008 4:01pm
Cornellian (mail):
In Raich only one justice even purported to apply original meaning, and that was Justice Thomas. Justice Scalia's concurring opinion was squarely within the New Deal Court's misreading of the "living" Constitution.

Yep, the words "original meaning" or variants thereof (original understanding, original intent etc.) don't even appear in Scalia's opinion in Raich, so remind me again why he should be considered an originalist?
3.10.2008 4:16pm
Brett Bellmore:

Is there anything in the Constitution that is not ambiguous?


Not when examined by somebody who doesn't like what it says. To my mind, that's always been the chief problem with living constitutionalists claiming the doctrine only applies to parts of the Constitution which are "ambiguous": They always follow it up by finding "ambiguous" language in the Constitution no native speaker of the language should have such trouble with.
3.10.2008 4:16pm
Chris 24601 (mail):
Solum does a good job distinguishing ambiguity from vagueness. But I don't think that vagueness and ambiguity are the only ways in which the historically-situated constitutional text can fail to produce outcomes that are fixed. A text that is perfectly clear might depend on particular changing facts to produce outcomes. If the framers' views about the referent of constitutional language depend on facts that have changed, or about which the framers made mistakes, then the referent of constitutional language can properly change even while the historic textually-expressed sense stays fixed.
3.10.2008 4:40pm
Andy Freeman (mail):
> I think it's very arguable then that some founders certainly didn't intend to create a document that would forever lock the United States into 18th Century norms of punishment.

They didn't - there's an amendment process.

> So a judge is well within his power to find something cruel and unusual that might not have been so in 1789.

Nope.

If the Constitution's terms and definitions are open to interpretation, why should anyone consider it binding?
3.10.2008 4:56pm
Chris B:
One question about the "life" of the Constitution is about what should happen when the Court makes a mistake.

At the time of ratification, did the public understanding of "the judicial power" include the understanding that the Court would have the ability/responsibility to apply stare decisis--upholding prior decisions even when the current Court believes the prior Court misunderstood or misapplied the Constitution?

My question is not whether the Court can place an independent policy of stare decisis above the Constitution, but it is instead whether the Constitution itself--as the supreme law of the land--can reasonably be understood as including stare decisis within "the judicial power" even for Constitutional cases?
3.10.2008 5:06pm
Clayton E. Cramer (mail) (www):

When determining if something is cruel and unusual punishment, Originalism and Textualism can only take one so far. The text is somewhat vague, and while there is some evidence as to what the founders considered cruel and unusual, it's certainly not determinative.
I completely agree with you. When in doubt (and there are circumstances where it is impossible to be sure what was intended), the courts need to defer to the people.

I think it's very arguable then that some founders certainly didn't intend to create a document that would forever lock the United States into 18th Century norms of punishment. So a judge is well within his power to find something cruel and unusual that might not have been so in 1789.
The Constitution doesn't lock us into 18th century norms. It sets certain standards. In the example you give, it is pretty clear that some practices that were regarded as cruel (such as drawing and quartering) were unacceptable. Hanging clearly wasn't. For punishments that were unknown in 1789 (say, the electric chair, or poison gas), a judge would have to say, "The Framers didn't know what this was."

You might make the argument that the electric chair was, in the words of Mark Twain, a new fangled form of burning at the stake--and look for evidence that burning at the stake was something the Framers found cruel.

Unles there's clear evidence that the Framers understood a clause to require or prohibit X, the courts need to defer to the legislative branch--the one that represents the people.
3.10.2008 5:23pm
EIDE_Interface (mail):

If the Constitution's terms and definitions are open to interpretation, why should anyone consider it binding?
3.10.2008 3:56pm


Exactly. Either it's a binding contract or it's nothing.
3.10.2008 5:27pm
Prufrock765 (mail):
I would very much like to see a response to Andy Freeman's comment.
How do these various schools of interpretation deal with the fact that in the amendment provisions, the framers of the Constitution appear to have explicitly countenanced the notion that the document they were propounding will eventually become dated or confusing?
3.10.2008 5:39pm
ejo:
those who support the "living constitution" are fine with it being living as long as those deciding have it living with decisions in their direction. can someone help me with an area where constitutional law where the livers are happily seeing it move in a direction they don't want it to move? they are happy with abortion, while not being mentioned, is apparently a right which triumphs over all. suppose the next five have it living in a way that restricts abortion in the entirety-will they still be pleased?
3.10.2008 5:40pm
KRS (mail):
Scalia's "Dead Constitution" is like the tax resisters' "voluntary" income tax. He creates a bogey-man to divert attention from his systematic dismantling of constitutional principles.

"Living" and "dead" are not in the Constitution, just as "voluntary" is not in the tax code. Engaging in that irrelevant argument plays into Scalia's hands. When we let him frame the question that way, we've lost before we begin, because he's diverted the discussion from a real question to an imaginary one.
3.10.2008 5:53pm
Sebastian (mail) (www):
Unless there's clear evidence that the Framers understood a clause to require or prohibit X, the courts need to defer to the legislative branch--the one that represents the people.

I don't know if I can go along with that Clayton. The amendment is there for a reason. I have a difficult time believing the founders devoted 1/10th of the Bill of Rights to something that they simply intended to be under the purview of the legislature. Clearly they were trying to restrain the government in some way, weren't they? What meaning does it have if you can get around the limitation by thinking up creative ways to be cruel or unusual in a manner the founders wouldn't have anticipated?
3.10.2008 6:00pm
Latinist:
So a judge is well within his power to find something cruel and unusual that might not have been so in 1789.

Nope.


If the framers meant to say "the things we now consider cruel," they could have said so, right? They weren't fools. They could have listed particular examples to provide a basis for judgement, or provided some other more specific guidelines.
So maybe they believed that it should depend on what really was cruel. That is, that there actually existed (and exists), regardless of the opinion of any person or group of people, something called "cruelty," and that that term was properly applied to some things and improperly to others. Thus, anyone deciding whether a punishment is forbidden by the eighth amendment should first decide (as the text of the amendment implies) whether that punishment is, in fact, cruel -- not whether it was believed so by Thomas Jefferson, or whether it is believed so by a majority today, but whether it really is so.

Now there may be a lot of problems with this sort of decision-making, but I don't really see how any other sort conforms to the text of the amendment; and I don't see how anyone who says that "cruel" really means "cruel according to the standards, good or bad, of a hypothetical 'average framer of the constitution'" can call himself an originalist.
3.10.2008 6:15pm
Greg D (mail):
or living Constitutionalists, the act of ratification by people who are long dead, and whose numbers did not include any women or enslaved African-Americans, does not suffice to make the Constitution effective today. For us living-Constitutionalists, the Constitution's current authority derives at least in substantial part from the fact that we the living people accept it as authoritative. And if our acceptance validates the Constitution, then, as Justice Powell said in the Rummel case, the way in which contemporary Americans understand the Constitution's language should play a substantial role in how the courts interpret that language.

Hmm, I wonder. Who do we think is going to be better at figuring out what "contemporary Americans" believe? Elected politicians, who can get voted out of office if they get it wrong? Or unelected, unaccountable "judges" who have little contact with "contemporary Americans", outside their inbred "elite" to which they belong?

So, logically, what he's arguing is that, in case of ambiguity, "Living Constitution" judges should leave the law alone, since it was passed by people who are directly accountable to "contemporary Americans" if they got it wrong.

Funny, that's not what the "living Consitutionalists" actually do. I wonder why?
3.10.2008 6:15pm
ejo:
is the living constitution, as Scalia suggests, meaningless. if you have no norm or basis for your interpretations other than your own values, that's a lot like what it sounds like to me-it seems to me it gives a lot more power to judges than would be warranted under our system of law.
3.10.2008 6:16pm
dearieme:
The problem with the the "Living Constitution" is that it seems usually to be living in sin.
3.10.2008 6:23pm
Dilan Esper (mail) (www):
Please don't draw distinctions between ambiguous and vague. Almost everyone uses them interchangebly, so whatever distinction they had were lost. And I can't stand it when lawyers object on the ground that a question is "vague and ambiguous", as if they are waiving something if they use only one of the synonyms.
3.10.2008 6:27pm
Cornellian (mail):
When in doubt (and there are circumstances where it is impossible to be sure what was intended), the courts need to defer to the people.

How does this apply to federalism questions where the issue is which set of people (state or nation) to which to defer?
3.10.2008 6:31pm
Clayton E. Cramer (mail) (www):


Unless there's clear evidence that the Framers understood a clause to require or prohibit X, the courts need to defer to the legislative branch--the one that represents the people.

I don't know if I can go along with that Clayton. The amendment is there for a reason. I have a difficult time believing the founders devoted 1/10th of the Bill of Rights to something that they simply intended to be under the purview of the legislature.
Uh, X for the unknown--not the Tenth Amendment.
3.10.2008 6:55pm
Clayton E. Cramer (mail) (www):

I would very much like to see a response to Andy Freeman's comment.
How do these various schools of interpretation deal with the fact that in the amendment provisions, the framers of the Constitution appear to have explicitly countenanced the notion that the document they were propounding will eventually become dated or confusing?
As an originalist would say that the amendment process is how the Constitution is supposed to live. Living, breathing, constantly mutating Constitutionalists claim that the amendment process is too hard. I look at the list of changes, and it doesn't look that hard--it does require something more than 51% to agree--and even that would be an improvement over their approach, which is, "What do five Supreme Court Justices think?"
3.10.2008 6:57pm
Clayton E. Cramer (mail) (www):

those who support the "living constitution" are fine with it being living as long as those deciding have it living with decisions in their direction. can someone help me with an area where constitutional law where the livers are happily seeing it move in a direction they don't want it to move?
Maybe with respect to unlawful combatants? After all, the Framers didn't have to worry about dirty bombs or airliners crashing into skyscrapers. Things change.
3.10.2008 6:58pm
Clayton E. Cramer (mail) (www):

So maybe they believed that it should depend on what really was cruel. That is, that there actually existed (and exists), regardless of the opinion of any person or group of people, something called "cruelty," and that that term was properly applied to some things and improperly to others. Thus, anyone deciding whether a punishment is forbidden by the eighth amendment should first decide (as the text of the amendment implies) whether that punishment is, in fact, cruel -- not whether it was believed so by Thomas Jefferson, or whether it is believed so by a majority today, but whether it really is so.
This sounds like you believe that there are absolute definitions of things like "cruelty." I can't imagine any living, breathing, constantly mutating Constitutionalist believing in anything so terribly primitive.
3.10.2008 7:01pm
Sebastian (mail) (www):
Uh, X for the unknown--not the Tenth Amendment.

1/10th was the fraction of the Bill of Rights that the eighth amendment would make up. I wasn't referring to the tenth amendment.
3.10.2008 7:07pm
Cornellian (mail):
How does this apply to federalism questions where the issue is which set of people (state or nation) to which to defer?


Or, for that matter, separation of powers questions where it's a matter of choosing the President's position or Congress's position - either decision is "deferring" to the elected branches.
3.10.2008 7:08pm
Clayton E. Cramer (mail) (www):
Cornellian asks:


When in doubt (and there are circumstances where it is impossible to be sure what was intended), the courts need to defer to the people.

How does this apply to federalism questions where the issue is which set of people (state or nation) to which to defer?
1. Does the Bill of Rights or treaties to which the U.S. is a signatory have any explicit relevance? Congress (and through the 14th Amendment's privileges and immunities clause, the states as well) can't prohibit freedom of speech, give special privileges or grants to particular religious institutions, prohibit gun ownership by law-abiding adults, among others.

2. If not protected by the Bill of Rights or later amendments, is there a clear statement of authority granted to the federal government? As an example, interstate commerce regulation is clearly a federal government power--but I would argue that to be subject to federal regulation, the commerce or good involved needs to be, you know, engaged in interstate commerce. Not because it might move in interstate commerce; not because the iron ore moved in interstate commerce from which some steel was made from which a spring was made which went into a handgun--but actual interstate commerce.

3. If there is no clear statement of federal authority, and no issues connected to item #1, then the states have authority to pass laws that do not conflict with their own state constitutions. Such laws may be stupid, but I'll take my chances with the jackasses over the jackals.

This seems clear enough.
3.10.2008 7:09pm
Brett Bellmore:
<blockquote>
it does require something more than 51% to agree
</blockquote>

Not really. It requires more than 51% of the <i>states</i> and <i>members of Congress</i> to agree, but 51% of the population, if evenly distributed, will easilly generate supermajorities of legislators and states given winner take all elections.

What won't cut it is 51% <i>who happen to be geographically concentrated.</i>
3.10.2008 7:17pm
Brett Bellmore:
You know, it's really annoying that, if you forget to close your html, the software gives you a chance to fix it, and then defiantly refuses to USE that fixed html.
3.10.2008 7:18pm
Clayton E. Cramer (mail) (www):
Now that I know that Sebastian is referring to the Eighth Amendment:


The Constitution doesn't lock us into 18th century norms. It sets certain standards. In the example you give, it is pretty clear that some practices that were regarded as cruel (such as drawing and quartering) were unacceptable. Hanging clearly wasn't. For punishments that were unknown in 1789 (say, the electric chair, or poison gas), a judge would have to say, "The Framers didn't know what this was."

You might make the argument that the electric chair was, in the words of Mark Twain, a new fangled form of burning at the stake--and look for evidence that burning at the stake was something the Framers found cruel.

Unles there's clear evidence that the Framers understood a clause to require or prohibit X, the courts need to defer to the legislative branch--the one that represents the people.
It is pretty clear that the Framers intended "cruel and unusual punishment" to prohibit certain barbarous punishments. I remember reading a very persuasive journal article some years ago that made the claim that the Framers misunderstood the meaning of the equivalent clause in the English Bill of Rights as prohibiting unnecessary cruelty in punishments, such as drawing and quartering.

The Bloody Assizes of 1685 was widely seen as an example of how the defendants were persuaded to plead guilty by being promised life in prison--and were executed anyway. Drawing and quartering was such an awful way to die that the plea bargain seemed reasonable.

You could argue that any form of punishment that involved unnecessary suffering, relative to what was considered acceptable in 1789, would qualify as cruel. Hanging was acceptable. I rather doubt that lethal injection is more cruel than hanging. Beating someone to death with a hatchet is more cruel than hanging. If in doubt, trust the people.
3.10.2008 7:18pm
DrGrishka (mail):
There are several problems with Dorf's argument.

1. He is wrong that "no serious judge, lawyer or academic argues for" substituting his values for those found in the Constitution. Harry Pregerson does precisely that. When asked during his confirmation hearings if he is willing to follow the law when said law conflicted with his conscience, he stated that he would follow his conscience over the law.

2. If living Constitutionalists believe that "the way in which contemporary Americans understand the Constitution's language should play a substantial role in how the courts interpret that language," then it follows that almost all statutes recently enacted by various legislatures must be upheld. There really is no better evidence of what "the way in which contemporary Americans understand the Constitution's language" then the very statutes those people enacted.

3. Living Constitutionalist like Justices Marshall, Blackmun, Douglas, and Brennan were not fighting over "ambiguous" language. The Constitution's language on death penalty is not at all "ambiguous." The Justices simply wished to write that language out of the Constitution simply because they believed it outlived its usefulness.
3.10.2008 7:20pm
Asher Steinberg (mail):
If the framers meant to say "the things we now consider cruel," they could have said so, right? They weren't fools. They could have listed particular examples to provide a basis for judgement, or provided some other more specific guidelines.
So maybe they believed that it should depend on what really was cruel.


I entirely agree. Moreover, though an objective standard of cruelty may seem unworkable, it's probably better than a community standard, for the following reason. If that which a majority of the nation believes is cruel is what falls under the Eighth Amendment's prohibition of cruel and unusual, and nothing more (except, perhaps, for methods of punishment which even the framers thought were cruel), it follows that, as long as a majority of the nation thinks something is okay, it can't violate the Eighth Amendment. But that seems odd. Because from that it would follow that as long as a majority of states institutes some mode of punishment, however cruel it may seem to some, it probably doesn't violate the Eighth Amendment. So I think you're left, however unhappy the prospect may seem, with the moral intuitions of nine judges.
3.10.2008 7:26pm
Clayton E. Cramer (mail) (www):

I entirely agree. Moreover, though an objective standard of cruelty may seem unworkable, it's probably better than a community standard, for the following reason. If that which a majority of the nation believes is cruel is what falls under the Eighth Amendment's prohibition of cruel and unusual, and nothing more (except, perhaps, for methods of punishment which even the framers thought were cruel),
Gee, what a concept: that the Framers wanted to prohibit methods of punishment that they considered cruel.
it follows that, as long as a majority of the nation thinks something is okay, it can't violate the Eighth Amendment. But that seems odd. Because from that it would follow that as long as a majority of states institutes some mode of punishment, however cruel it may seem to some, it probably doesn't violate the Eighth Amendment.
However: the Eighth Amendment originally was a limit on the federal government alone. Therefore, since Congress would be defining the penalties for various crimes, and these would be uniform through the United States, the goal was not to prevent regional variation as to what constituted cruel or unusual punishment.

So I think you're left, however unhappy the prospect may seem, with the moral intuitions of nine judges.
And these are somehow superior to the moral intuitions of the people's elected representatives?
3.10.2008 7:35pm
ReaderY:
When the living elected representatives of a majority of living people enact a law they find consistent with an oath to support the consititution they took when they entered legislative office, what exactly is the basis for "living constitutionalists" to claim that "living people" think it inconsistent with the Constitution.

The Republican Form of Government clause guarantees the right of voters and legislators to determine what living people think. The fact that a law has been passed by a legislature ends any legitimate discussion as to whether currently think it consitutional, one must conclude they do.
3.10.2008 7:47pm
Cornellian (mail):
The fact that a law has been passed by a legislature ends any legitimate discussion as to whether currently think it consitutional, one must conclude they do.

So what conclusion are we to draw from President Bush declaring his view that McCain-Feingold is unconstitutional, then signing it into law anyway?

I think the underlying premise - that elected politicians would never vote for a law they considered unconstitutional - is simply wrong.
3.10.2008 8:01pm
Oren:
<blockquote> Unles there's clear evidence that the Framers understood a clause to require or prohibit X, the courts need to defer to the legislative branch—the one that represents the people. </blockquote> The entire point of much of the Constitution is to prevent 'The People' from enacting certain sorts of laws (bills of attainder, bills establishing a state religion, cruel and usual punsihments . . .) <i><b>despite</b></i> the majority's desire to do so. The notion that judges should defer to the legislatures or executives in these cases essentially makes hash out of these Constitutional provisions.
3.10.2008 8:20pm
Oren:
Unles there's clear evidence that the Framers understood a clause to require or prohibit X, the courts need to defer to the legislative branch—the one that represents the people.


The entire point of much of the Constitution is to prevent 'The People' from enacting certain sorts of laws (bills of attainder, bills establishing a state religion, cruel and usual punsihments . . .) despite the majority's desire to do so. The notion that judges should defer to the legislatures or executives in these cases essentially makes hash out of these Constitutional provisions.
3.10.2008 8:21pm
Oren:
And [the moral intuition of judges] are somehow superior to the moral intuitions of the people's elected representatives?
Yes, because making the moral judgment is often profoundly unpopular. The idea of a majoritarian moral order doesn't make any sense to me - what is right isn't always popular.
3.10.2008 8:29pm
Jim at FSU (mail):
What is "right" in a community is usually so popular that no one perceives it on the right-vs-wrong spectrum. It is more often a choice between "the way things are supposed to be done" and "the strange behavior some stranger is engaging in." People behaving outside these norms are made to feel unwelcome and either adapt or leave.

When courts attempt to impose new orthodoxies from outside a community, the backlash is strong because people resent having alien norms imposed upon them. This is one of the main benefits of federalism- "one size fits all" is a poor approach to settling contentious social issues.

Issues upon which there is not enough agreement to pass a constitutional amendment should not be "settled" through any federal policy making powers, whether real or usurped. Any vagueness about the breadth of a federal power should be resolved in favor of the narrowest possible grant of power. We should always require an additional constitutional amendment if there is any doubt as to the power of the federal government. Such powers, once assumed, are very difficult to retract.
3.10.2008 10:03pm
Jim at FSU (mail):
Of course the best way to see when the supreme court has overstepped these bounds is the relative volume of the protests that follow such overstepping. I can't really find any simple rule to determine how far they should go in determining what is on one side or the other of long-established constitutional principles.
3.10.2008 10:13pm
Clayton E. Cramer (mail) (www):

The entire point of much of the Constitution is to prevent 'The People' from enacting certain sorts of laws (bills of attainder, bills establishing a state religion, cruel and usual punsihments . . .) despite the majority's desire to do so. The notion that judges should defer to the legislatures or executives in these cases essentially makes hash out of these Constitutional provisions.
What you seem to be missing is that I was saying that if the Constitution is explicit that something is prohibited to the government, then certainly, a judge is supposed to rule against popular will. But if there is nothing that prohibits the people from doing something, why in the world does an unelected judge have the right to overturn the majority?
3.10.2008 11:10pm
Clayton E. Cramer (mail) (www):


And [the moral intuition of judges] are somehow superior to the moral intuitions of the people's elected representatives?


Yes, because making the moral judgment is often profoundly unpopular. The idea of a majoritarian moral order doesn't make any sense to me - what is right isn't always popular.
No question, what is right isn't always popular. But what makes it okay for judges to overturn the majority in some cases, but not others? The Constitution sets some limits on governmental power--and therefore some limits on what the majority may do. But not everything that the majority wishes to do is therefore wrong. Otherwise we could just skip this whole voting thing, and let the guys in black robes make all the decisions.
3.10.2008 11:13pm
Clayton E. Cramer (mail) (www):

So what conclusion are we to draw from President Bush declaring his view that McCain-Feingold is unconstitutional, then signing it into law anyway?

I think the underlying premise - that elected politicians would never vote for a law they considered unconstitutional - is simply wrong.
Page Smith's book on the Constitution some years back made the interesting point that the Constitution and judicial review, by putting certain areas off limits, may have made democracy in America a bit more rambunctious than it otherwise would have been--that the judiciary acted as something of a safety catch for democracy run wild.

Bush signed McCain-Feingold because he was so sure that it was going to be struck down by the Court. I was sure of it, too, because it was so obviously contrary to freedom of speech. Of course, I wouldn't have signed it, no matter how much it upset the liberal press. Bush, unfortunately, is just a bit too focused on making the liberal media happy.
3.10.2008 11:17pm
Clayton E. Cramer (mail) (www):

Yes, because making the moral judgment is often profoundly unpopular. The idea of a majoritarian moral order doesn't make any sense to me - what is right isn't always popular.
So if a judge overturned the majoritarian moral order in California, and decided that the 1975 legislative act repealing the laws against oral and anal sex was only popular, not right, you wouldn't be upset?
3.10.2008 11:18pm
Oren:
What you seem to be missing is that I was saying that if the Constitution is explicit that something is prohibited to the government, then certainly, a judge is supposed to rule against popular will. But if there is nothing that prohibits the people from doing something, why in the world does an unelected judge have the right to overturn the majority?
Remember that you and I have vastly different notions of what the Constitution prohibits and does not prohibits (mandating red shirts, I believe, chief among them). You seem to be asserting that if a state passes a law banning guns (flag burning, red shirts) then somehow there is a deference to the legislature that the law is constitutional which sounds like putting the fox in charge of the hen-house (or at least adopting a deferential standard of review regarding the fox's authority over the hen-house).

The Constitution grants individuals broad rights, made applicable to the states by the 14A. Absent enforcement by the federal judiciary, they are just words on paper.

So if a judge overturned the majoritarian moral order in California, and decided that the 1975 legislative act repealing the laws against oral and anal sex was only popular, not tight, you wouldn't be upset?
Absolutely, provided you can somehow reason that an individual has the right to have sodomy prohibited to him. I don't know how in the world anyone could ever come around to such an absurd position (the right to have something prohibited to oneself?!) but, hey, I'm listening.

Bush, unfortunately, is just a bit too focused on making the liberal media happy.
Laugh riot.
3.10.2008 11:41pm
Mark Bahner (www):

That would be the whole Constitution. Even the "lost" parts like the Ninth Amendment...


In my opinion, the really lost part of the Constitution is the Tenth Amendment. And I agree with Thomas Jefferson that the Tenth Amendment is the very foundation of the Constitution.

That's why I find it ironic when people talk or write about how wonderful the Constitution is. Since we don't follow it, the fact that it's a wonderful document is irrelevant.
3.10.2008 11:46pm
Oren:
Yes Mark, everyone that doesn't agree with your interpretation of the document isn't following it and has nothing but contempt for its content.
3.10.2008 11:53pm
Craig R. Harmon (mail):

any constitutional construction must stay within the "frame" provided by original meaning


So did Miranda's ruling stay within the "frame" provided by original meaning when it mandated not only that defendants have a "right...to have the Assistance of Counsel for his defence" (sixth amendment) in the context of a trial in the sense that the state cannot deny a defendant such counsel but in the sense that he must (a) be expressly informed of his right before questioning, (b) have a lawyer provided at state expense if he cannot afford one, (c) that the above provision of the sixth amendment means that he has a right to have a lawyer present at all questioning?

Or were the Justices substituting their own ideas of justice for the original meaning of the sixth amendment? I mean to say, was the original meaning of the sixth amendment so vague, obscure, or ambiguous that the Justices could have supposed that the result in Miranda was intended, supposed or imagined by either the authors of the amendment, the ratifiers of the amendment, or those educated, informed readers at the time of the ratification of the BOR?

Was Miranda good living constitutionalism or bad living constitutionalism? And if it's good living constitutionalism, why?
3.11.2008 12:23am
Oren:
Miranda was a procedural rule and did nothing to change the fundamental nature of the 5&6A rights. Americans always had the rights you've listed but the court felt (and on solid factual grounds) that a more strict procedural rule was necessary to enforce those rights.

Your question, therefore, has about as much sense as asking if Fed Crim Pro rule 32e(2) is "bad constitutionalism".
3.11.2008 1:39am
Craig R. Harmon (mail):
Sorry, Oren, I'm not a lawyer so I ask questions. If my question makes no sense, it's because I'm trying to make sense of a highly specialized field of knowledge in which I have no formal training.

Are you saying that those rights were always understood to exist or that Americans ALWAYS had those right whether they were recognized and enforced or not? Was any defendant, in the 18th-19th century actually ever provided with a lawyer, paid for by the state, prior to questioning? And if not, how or in what sense can it be said that Americans always had those rights or that inventing new procedural rules to protect them did nothing to change the fundamental nature of the 5&6A rights? If rights are not recognized to exist and therefore are not enforced, can those rights really be said to exist?

I'm not ashamed to plead ignorance, by the way. This is how I learn.
3.11.2008 2:36am
Oren:
The right to counsel is, like Miranda, procedural and not fundamental itself. The fundamental right is that of a free and fair trial as required by due process. Prior to Gideon v. Wainwright, the state had wide latitude to conduct trials provided that it could show that they did not depart from the general notion of a fair trial (see Powell v. Alabama for instance). Wainwright (along with Miranda and Massiah) got rid of that presumption in favor of the state (see my earlier post about the fox) in favor of strict set of procedural safeguards to protect criminal defendants.

As to the philosophical question of whether those rights existed before Earl Warren got around to making sure they were actually respected, I have no idea so I defer to the other great minds of the VC. I will only add that I'm quite thankful, both personally and politically, that he did so.
3.11.2008 3:24am
Craig R. Harmon (mail):
Oren,

Thanks for the details and case cites.
3.11.2008 4:26am
Brett Bellmore:

The right to counsel is, like Miranda, procedural and not fundamental itself.



From the 6th amendment:

... and to have the Assistance of Counsel for his defense.


I'm sorry, but I'm going to have to insist that any right explicitly mentioned in the Bill of Rights must, in America at least, be considered a "fundamental" right.
3.11.2008 11:09am
Mark Bahner (www):

Yes Mark, everyone that doesn't agree with your interpretation of the document isn't following it and has nothing but contempt for its content.


OK, let's talk about some programs I think are violations of the Tenth Amendment:

1) Social Security,

2) Medicare,

3) Medicaid,

4) Department of Education

5) The federal minimum wage.

Do you agree that any of them are violations of the Tenth Amendment? If not, what part(s) of the Constitution do you think authorize them?
3.11.2008 1:12pm
Oren:
Brett, you are correct. I was imprecise (and therefore incorrect) - I meant to refer to the right to counsel at no expense to the defendant. Prior to Wainwright, Federal courts would look holistically at the trial to see whether it comported with due process.

Mark, I'll answer a question with a question:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;
What does the bolded phrase mean (i.e. How would the Constitution be different without it)?
3.11.2008 2:33pm
Mark Bahner (www):

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;



What does the bolded phrase mean (i.e. How would the Constitution be different without it)?


I think it means what James Madison (and Thomas Jefferson) wrote that it meant. James Madison wrote:

"With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

He also wrote: "For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?"

In other words, I think the words you bolded are merely an introduction to the specific powers in Article I, Section 8, just as Madison wrote. For example, these are specific ("enumerated") powers that are authorized to Congress that fall in the "general welfare" category (as distinguished from "common Defence"):

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads,

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;


I don't think there are any powers authorized to Congress beyond those specific, enumerated powers.

Thomas Jefferson apparently agreed, when he wrote:

"Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."

Regarding how the Constitution would be different without that phrase, I don't think it would be different at all. With or without that phrase, I think all 5 items that I listed are unconstitutional, under the Tenth Amendment. I think item #5--the federal minimum wage law—is particularly blatantly unconstitutional, under the Tenth Amendment.

But that's not just my opinion. According to witnesses, FDR himself told Frances Perkins to go to her desk and pull out the "nice unconstitutional bill [that had been] tucked away."

http://www.unc.edu/~andrewsr/ints092/etheridge.html

Now, how about answering a question with an answer? Do you agree that any of the 5 items are violations of the Tenth Amendment?

For example, if you don't think the federal minimum wage law was (and is) unconstitutional, why do you think FDR said what he did? Or do you think he didn't characterize the federal minimum wage law as a "nice unconstitutional bill"?

And regarding all 5, how do you address Madison's and Jefferson's comments? Do you think they were simply uninformed? Or mistaken? Or do you think their words are somehow ambiguous? Or do you think that the Constitution has somehow changed since the passage of the Tenth Amendment, in a way that makes those 5 items constitutional?
3.11.2008 6:37pm
Oren:
First off, I'm not in favor of any doctrine of Constitutional construction that does not change when words are removed - the Constitution is not an inkblot - all of the words there mean something. It was not the intent of the founder to add any superfluous words.

Whether or not FDR considered it a proper exercise of Congressional authority under the commerce clause, as it stands today, the minimum wage clearly regulates commerce between the various states. In order to understand this, I think its important to see that the commerce itself (the actual referent, not the word) has changed significantly since the 18th century. In Jefferson's time, one could reasonably be employed and have ones business end in that state. Today, however, I defy you to point at anyone whose commerce is not inextricably intertwined with the national economy. Hint: it's impossible. As the economies of the various states became intertwined, the authority of the commerce clause increased.

Similarly for the rest of the bunch - having uneducated young folks or destitute sick old folks is a drag on the entire country and not only on the state in which they reside. The era of Jeffersonian agriculture has long since past and we owe it ourselves, at the very minimum as an exercise in intellectual honesty, to acknowledge that.
3.11.2008 6:57pm
Andy Freeman (mail):
> In Jefferson's time, one could reasonably be employed and have ones business end in that state. Today, however, I defy you to point at anyone whose commerce is not inextricably intertwined with the national economy.

"commerce inextricably intertwined" is not inconsistent with "one's business end in that state".

The former involves other people while the latter doesn't.

If you're going to argue that doing biz, however indirectly, with someone who is engaged in interstate commerce is the same as being engaged in interstate commerce yourself, then all biz has been interstate commerce since the first act of interstate commerce.

In other words, the "doing biz with" definition eliminates the "interstate" restriction.
3.11.2008 9:24pm
Oren:
Alright Andy, please cite an example of a business that is wholly intrastate.
3.11.2008 9:27pm
Andy Freeman (mail):
A lot of people believe that prison is cruel.

If we're always using what some judge says is today's definition of "cruel", how many of them do we need to get prison banned by judicial fiat as "cruel"?

If the meaning of the words wrt constitutional interpretation can drift at the whim of language change, the constitution isn't a binding agreement.
3.11.2008 9:30pm
Mark Bahner (www):

First off, I'm not in favor of any doctrine of Constitutional construction that does not change when words are removed - the Constitution is not an inkblot- all of the words there mean something. It was not the intent of the founder to add any superfluous words.


So I give you Madison and Jefferson, and you give me Bork! ;-)

The words you quoted are an introduction. An introduction to the *enumerated* powers in Article I, Section 8. I wrote that removing them would not change the meaning of the Constitution, because I don't need any introduction to what the Founding Fathers were trying to do.

Suppose I'm with co-worker, and I meet a neighbor from outside work. I might introduce the two as: "This is my colleague, Firstname, Lastname. And this is my neighbor, Firstname2, Lastname2."

I'd introduce them that way, so that they wouldn't be confused (by references to work on one hand, or the neighborhood on the other). And I'd include last names, particularly if either one had a common first name. Again, it would be to avoid confusion. But if I did *not* include in the introduction how I knew them, or what their last names were, it wouldn't change who they are!

And please have the "intellectual honesty" not to pretend that you're attempting to preserve what the Founders were intending! I quoted from *James Madison* (aka, the "Father of the Constitution"). He was quite clearly REJECTING the very interpretation you're promoting! If you wish to completely ignore him, at least have the "intellectual honesty" to admit it.


Whether or not FDR considered it a proper exercise of Congressional authority under the commerce clause, as it stands today, the minimum wage clearly regulates commerce between the various states.


So the federal minimum wage was unconstitutional in 1938, but has become constitutional by 2008? How did that come about? I'm not aware of any changes to the words of the Constitution that would cause that change in status. What other changes caused the change in constitutional status?


The era of Jeffersonian agriculture agriculture has long since past...


When did I mention anything about agriculture? What does agriculture have to do with Social Security?


...and we owe it ourselves, at the very minimum as an exercise in intellectual honesty, to acknowledge that.


Again, please don't lecture me about "intellectual honesty"...particularly if you're going to ignore the very explicit words of James Madison.

If you think that Social Security, Medicare, Medicaid, and the Department of Education are now constitutional, but they weren't when James Madison wrote what he wrote, when did they become constitutional? Was it at the moment Congress signed them into law?
3.11.2008 11:05pm
Craig R. Harmon (mail):
From what I've heard and read, I think prison is cruel (though, obviously, not unusual) punishment. However, I think it unlikely that any set of judges would ban prisons. More likely is that they would ban specific practices or conditions within prisons, say, more than two cellmates to a cell; quartering non violent offenders with hard core violent offenders; require closer observation of prisoner interaction to prevent fights, rapes, murders, etc.; more careful oversight of guard behavior toward prisoners to prevent beatings, deliberately looking the other way to allow prisoner on prisoner fights, rapes, murders, etc.

Except for involuntary commitment to certain asylums, I can't think of anything more cruel than being incarcerated.

That doesn't mean that I would ban prisons; it means that I'd like to see better conditions for those incarcerated. Were I a judge, I'd do my darndest to make sure that happened. I might even use the eighth amendment to do it. I wouldn't be particularly concerned about whether others thought that the founding generation would have found my actions outside of their understanding of the reach of the eighth amendment's cruel and unusual clause.

Can anyone point to one judge who has given any indication that he or she would ban prisons based upon how cruel life in prisons might be?

I don't even believe one would need to alter the meaning of the word 'cruel' to do so. Just because a person finds, say, capital punishment to be cruel in all circumstances does not mean that that person is defining the word 'cruel' any differently than the people of the founding era defined it.

What has changed is not the definition of the word but a disagreement with the people of the founding era as to what sorts of state sanctioned acts fall within that definition. One does not normally define a word, an adjective for example, by the acts that one thinks define the word but one defines the word and then decides what acts may best be described by that word. For example, in my high school, we had certain runners that would, by our school's standards, fit the definition of 'fast' but by the standards of all the schools in the state, they would not fit those standards. By the standards of the Olympics or World Championships, they would not even fit the definition of 'average speed' for the distances in which they competed. So adjectives are often of a sort that are, by definition, relational. The very fact that, as Andy says, a lot of people believe that prison is cruel, implying that others do not, shows how relational the word 'cruel' is. That is, the application of the word to a given situation varies with the individual applying the word. But that's not because different people define the word in vastly different ways but, I believe, because different people have different ideas about what conditions meet the definition. For example, some people think spanking -- a slap to a child's bottom -- is cruel; others do not.

But now take the same definition over time. How about a word like 'artistic'. What late 18th century people considered to be or not to be artistic is not likely to be what early 21st century people think is artistic. Their definitions have not necessarily changed but their standards have. Who in the world of art would suggest that no one should consider any art produced since the late 18th century to be artistic? And even if they did, why should their standards rule 21st century tastes? Back to cruelty. I've read that, at the time of the ratification of the BOR, children as young as seven could be executed. I can't vouch for the truth of this but it sounds about right -- if someone can correct this, please do.

Does this mean that, by the definition of 'cruel' in the late 18th century, an originalist must support the execution of seven year olds as constitutional? I would hope not. Would even a Justice Thomas or Scalia vote to uphold a state statute allowing the hanging of seven year olds as constitutional? I don't know but I would hope not. You see our standards of humane versus cruel treatment have changed since the late 18th century, not necessarily the definition of the word 'cruel'.

Then there is the word 'unusual'. Does anyone contend that what was usual at one point in history cannot be categorized at another time as unusual? Certainly, the execution of seven year olds by hanging, however usual or humane the practice might have once been considered, a state statute calling for executions of children offenders would be considered unusual today, even if some (I would hope not many) might consider such executions to be humane.

My point is that, even if the dictionary definition of 'cruel' has changed over time, I doubt that the meaning of 'unusual' has changed all that much. What has changed is the infrequency with which a given action, once common, has come to be practiced (or even considered by people to be appropriate practice, even if the action is not practiced).

My point is that words like 'cruel' and 'unusual' are relative to the people and to the times and to the evolving cultural mores and to insist that any action not considered cruel and unusual in late 18th century America must, therefore be constitutional today seems, to me, to be wrong.
3.11.2008 11:43pm
Latinist:
Clayton Cramer:
This sounds like you believe that there are absolute definitions of things like "cruelty." I can't imagine any living, breathing, constantly mutating Constitutionalist believing in anything so terribly primitive.

Damn; I wish I'd responded to this earlier. Anyway, if you look back at my post you'll see that I never claimed (a) that I was a living-constitutionalist, or (b) that I believed in an absolute definition of cruelty (who cares what I believe?). I was saying that the text of the constitution (which, as I understand it, you approve of reading) seems to imply that the framers believed in an absolute definition of cruelty.

Your view (the framers didn't find hanging cruel, so the Eighth can't ban it) seems to rest on the assumption that the framers were a bunch of ignorant savages who had never heard of changing moral standards. Again, if they wanted the deciding factor to be eighteenth century standards of cruelty, they could have said so. They could, again, have specifically mentioned hanging as acceptable, the rack as unacceptable, etc. Instead, they just mentioned punishments that were "cruel," which on any normal reading refers, not to the authors' standards, but to the truth of the matter.
3.12.2008 10:47am
Andy Freeman (mail):
> Alright Andy, please cite an example of a business that is wholly intrastate.

Which defn are we using?

If we're using the "does biz across state lines", lots aren't. If we're using the "does biz across state lines or with a biz that qualifies", none are.

It's an interstate transaction when a CA farmer buys a tractor directly from a MN manufacturer, but does that mean that all of that farmer's biz is interstate?

Is it an interstate transaction when a CA farmer buys a tractor from a CA dealer who bought it from a MN manufacturer?

In both cases, I'd say no, but the supremes disagree. As a result, all commerce is interstate.

My point is that the supreme's definition means that all commerce in the US has been interstate since the first interstate transaction. According to the supremes, that transaction made all transactions by those parties, folks that those parties dealt with, and so on, into interstate transactions.
3.12.2008 11:33am
Andy Freeman (mail):
> to insist that any action not considered cruel and unusual in late 18th century America must, therefore be constitutional today seems, to me, to be wrong.

You're confusing "the 18th century definition of cruel is wrong" with "it's wrong to use the 18th century definition of cruel".

The 18th century definition is the one agreed to. If we don't like it (we've decided that it's wrong), we can change to a different definition via the amendment process.

My point is that if the meaning of the terms isn't fixed, subject to modification only by amendment, it isn't reasonable to consider it a binding agreement. There's no meeting of minds. There's no agreement. There's just "what do we want today?".
3.12.2008 11:44am
Andy Freeman (mail):
> Alright Andy, please cite an example of a business that is wholly intrastate.

Oren seems to believe that there were biz that were intrastate but none qualify now.

Perhaps he can tell us how a biz can be considered wholely interstate under the current defn. He's free to set that biz in the 1800s in thes state of his choosing.

My point is that if a biz does biz with anyone, there's a chain to an interstate transaction.

And, in answer to the circumstances that I discussed previously, the tractor purchase across state lines is interstate commerce. However transaction doesn't imply that other transactions by the parties involved are interstate. And, once the tractor is in a state, further transactions involving it are not interstate.

The supremes disagree.
3.12.2008 11:53am
Andy Freeman (mail):
Note that the supremes's rule for "interstate commerce" is broader than what I've stated. If anyone sells a tractor across state lines, all tractor sales come under federal jurisdiction.

In other words, even if a community stays behind a wall and trades nothing with the outside world, they're engaged in interstate commerce as soon as they start trading things internally that are like things that other people trade across state lines.
3.12.2008 12:05pm
markm (mail):
Oren, please cite an example of a business that was purely intrastate in 1787.
3.12.2008 12:26pm
Oren:
If you think that Social Security, Medicare, Medicaid, and the Department of Education are now constitutional, but they weren't when James Madison wrote what he wrote, when did they become constitutional? Was it at the moment Congress signed them into law?
Obviously it was a gradual process (unless you want to play theseus ship here).

When did I mention anything about agriculture? What does agriculture have to do with Social Security?
My mistake, I was imprecise. I was referring to Jefferson's desire for a republic of small, independent farmers and his dislike for industry and trade (as opposed to Hamilton, say). To say the least, Jefferson's conceptions of the ideal American economy have gone completely out the window.

Those who labor in the earth are the chosen people of God, if ever He had a chosen people, whose breasts He has made His peculiar deposit for substantial and genuine virtue. Iris the focus in which he keeps alive that sacred fire, which otherwise might escape from the face of the earth. Corruption of morals in the mass of cultivators is a phenomenon of which no age nor nation has furnished an example. It is the mark set on those, who, not looking up to heaven, to their own soil and industry, as does the husbandman, for their subsistence, depend for it on casualties and caprice of customers. Dependence begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition. (Jefferson 1781-1785, 678)


At any rate, it has a lot to do with social security because, at the founding, it was a reasonable proposition that farmer Joe lived in Western MA, bought all his supplies in MA and sold all his product in MA (mark, there is you example of purely intrastate commerce). Baker Bob could live down the road from Joe, buy all his wheat in-state, have his oven forged in-state and sell his bread to the townfolk. Today, Joe buys farm equipment from China, seed from Monsanto, diesel from the Saudis and sells his wheat 6 months in advance on the Chicago merc. Bob works at Panera Bread with locations in 38 states and advertisements on national media.

It's an interstate transaction when a CA farmer buys a tractor directly from a MN manufacturer, but does that mean that all of that farmer's biz is interstate?
If you are going to insist on seeing the trees but not the forest, I don't know what to tell you. It's not just the tractor but there are doubtless dozens of other supplies bought from other states and products sold to other states. I don't know about you, but I can't walk down the street and get a sandwich without that sandwich, chips and a drink without that lunch coming from 5 or 6 states.

The 18th century definition is the one agreed to. If we don't like it (we've decided that it's wrong), we can change to a different definition via the amendment process.
No, we agreed to a document in the 18th century with words that are, by their very nature, relational. To think that the founders intended to define, for all time, the meaning of the phrase 'cruel and unusual' is quite bizarre. At the very minimum, your bizarre conception is going to have serious trouble with Kyllo since presumably the word 'search' is frozen in time as well.

My point is that if the meaning of the terms isn't fixed, subject to modification only by amendment, it isn't reasonable to consider it a binding agreement. There's no meeting of minds. There's no agreement. There's just "what do we want today?".
There are plenty of binding agreements that have terms whose meaning is determined by reference. Somehow, they work.
3.12.2008 1:42pm
Chris 24601 (mail):
Oren: "To think that the founders intended to define, for all time, the meaning of the phrase 'cruel and unusual' is quite bizarre."

I think there's an ambiguity here in the term "meaning." I think the textually-expressed sense of the constitutional term was permanently fixed at the founding, but the reference--the set of things that is, in fact, cruel--requires the assessment facts about which the founders could be ignorant, or even wrong. See here.
3.12.2008 4:28pm
Chris 24601 (mail):
Assessment of facts. Sorry about the temporary prepositional blindness.
3.12.2008 4:30pm
Oren:
I think there's an ambiguity here in the term "meaning." I think the textually-expressed sense of the constitutional term was permanently fixed at the founding, but the reference--the set of things that is, in fact, cruel--requires the assessment facts about which the founders could be ignorant, or even wrong. See here.
Yuy, you nailed it (and once again, I was imprecise).
3.12.2008 6:26pm
Oren:
s/yuy/yup/ my last.
3.12.2008 6:26pm
Mark Bahner (www):
Hi,

I don't have time to address everything. Particularly since my mind is blown by this first exchange:

If you think that Social Security, Medicare, Medicaid, and the Department of Education are now constitutional, but they weren't when James Madison wrote what he wrote, when did they become constitutional? Was it at the moment Congress signed them into law?


Obviously it was a gradual process (unless you want to play theseus ship here).


So we agree that all 5 (Social Security, Medicaire, Medicaid, the Department of Education, and the federal minimum wage) were unconstitutional when Madison and Jefferson were alive...?

...but you think they gradually became constitutional? And it's such a gradual/obscure process that you can't even briefly identify when they changed from unconstitutional to constitutional?

Wouldn't it be better to just amend the Constitution to get rid of the Tenth Amendment?
3.13.2008 12:22am