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Dorf's Reply:
Michael Dorf has posted a reply Can't We All Just Get Along? to my earlier defense of the compatibility of a correct version of originalism and a correct version of living constitutionalism. Because he eschews "academic esoterica" it is difficult to fully understand his position. As near as I can tell, his entire argument appears in this passage:
Either the domain of construction is large relative to interpretation, in which case originalism is a largely indeterminate theory, or the domain of construction is small relative to interpretation, in which case a jurisprudence of original understanding would look very different from the living constitutionalism that we have. And if that's so, then originalism remains susceptible to the criticism that it leads to morally odious results (e.g., the 14th Amendment doesn't forbid most forms of official sex discrimination) or results that would be enormously disruptive of our legal/political order (e.g., much of the federal administrative state is invalid).
I have two responses to this. First, however large or small is "the domain of construction" is to be decided after we decide what meaning is conveyed by the text. I believe (a) that a great many cases would be decided by this meaning, (b) choices within the remaining domain of construction would still be bounded by this meaning, and (c) a good deal of constitutional law would still be required to put the meaning of the Constitution into effect. For example, the doctrines of "content neutrality" and "time, place and manner" regulations are not in the Constitution itself, but are doctrines that may be justified as putting into effect the freedoms of speech, press, and assembly.

Second, Dorf's main point is his references to interpretations that would either be "morally odious" or "enormously disruptive of our legal/political order." Although these appear to be two different criteria, only the first really counts. In the the 1920's, for example, the rejection of separate-but-equal would have been REALLY disruptive of the political/legal order, but I am sure that Dorf would say this should have been done anyway to avoid morally odious results.

So in practice moral odiousness is really doing all the work. The problem is the existence of disagreement over moral odiousness. While a consensus about the moral odiousness of racial apartheid exists today, it did not exist in the 1920s when President Wilson segregated the federal government for the first time. And it did not even exist through the 50s and 60s. So if we follow Dorf's apparent methodology, courts should have upheld Plessy v. Ferguson until the late 1960s when a consensus about its moral odiousness had emerged.

UNLESS, Dorf really means that courts should avoid results that HE and those who agree with him believe are morally odiousness, though many Americans may disagree. In other words, judges should follow their own moral views (if they agree with Dorf's) regardless of how widely accepted those views may be. But this methodology simply places the moral views of judges above whatever independent meaning the text of the Constitution may have. And you will remember from my last post that this is indeed Dorf's position: "[C]ontrary to conventional wisdom," he wrote, "constitutional doctrine typically trumps constitutional text -- at least absent arguments of sufficient strength to overcome the principle of stare decisis."

This is a prescription for what Larry Solum has called the "downward spiral" of judicial nominations. If the Constitution has no meaning independently of a judge's own views of moral odiousness, then everything depends on getting judges who share your views of moral odiousness. But when there is substantial disagreement about what is or is not morally odious at any given time (as there always is about some matters but not others) then this becomes an ugly fight to the death where anything goes, which is exactly what has happened.

I think Dorf is being completely open and honest about his views about constitutional interpretation and, for that, I commend him. For him it is all about results. If the text and precedent reach the right results, follow the text and precedent. If the precedent reaches the right results and the text does not, follow the precedent and trump the text. But if the precedent reaches the wrong results, then come up with whatever "interpretation" of the text reaches the right result and discard the precedent.

This approach is everyone's first choice if they and those who agree with them are in power. But is is their last choice if those who disagree with them are in power. Everyone's second choice should be to follow the meaning of the Constitution and construe it in ways that do not contradict that meaning even where this may lead to some results of which you object AND expect your political opponents to do the same.

Ultimately, this is what a written constitution is for, provided that what the constitution actually says is good enough to follow. Sometimes I suspect that, in their hearts, "living constitutionalists" (in the bad sense) do not believe that what the U.S. Constitution says is good enough so they advocate methods of "interpretation" that enable them to avoid rather than follow what they believe is its morally odious meaning. In other words, these living constitutionalists substitute their preferred meaning for that of what they view as the morally odious Constitution.
Tracy Johnson (www):
It would be darn funny after a few hundred years, someone "discovers" the Constitution like King Josiah and the nation has some sort of epiphany.
3.12.2008 3:28pm
ejo:
as long as the results are in my favor, by god I love the "Living Constitution".
3.12.2008 3:43pm
A.W. (mail):
Of course the living constitution theory is bunk. Look, if Congress passed a bill, but it was vetoed by the president and congress couldn't override the veto, no one would be crazy enough to say that we should interpret the terms of Article II in a living manner to say it is still a law. It is only done, then, in the case of fuzzy terminology (i.e. cruel and unusual). And why? Because then the court can pretend they are not doing what they are actually doing--substituting their judgment for that of the framers. They only do it there because they want to maintain the illusion they are doing the originalist thing.

In a republic, if a public official cannot do a thing while being honest and open about his/her motivations, that person just shouldn't do it, period.
3.12.2008 3:54pm
Chris 24601 (mail):
I don't really understand what Dorf means when he says that it's "morally odious" that "the 14th Amendment doesn't forbid most forms of official sex discrimination." The Fourteenth Amendment is what it is. It might be morally odious not to have a constitution that forbids sex discrimination, but it seems pretty weird to contend that it's morally odious to say that the Fourteenth Amendment doesn't forbid sex discrimination, if in fact that Fourteenth Amendment doesn't forbid it.

For the record, I think the Fourteenth Amendment does forbid second-class citizenship for women, but it does so through the Privileges or Immunities Clause (the Carpenter-Chase-Bradwell theory), not the Equal Protection Clause, which is an entitlement to the "protection of the laws," i.e., law-enforcement and remedial services. See here and here. But I don't think it's morally odious to speak the truth about the Constitution. The Constitution might be morally odious, but if so, we shouldn't respond by pretending it isn't.
3.12.2008 3:54pm
TruePath (mail) (www):
Umm, of course the *ultimate* test is about results. The argument for 'principled' constitutional interpretation is that the expected benefits of instituting a tradition of viewing the constitution as inviolable is larger than the expected benefits of changing it willy nilly.

I mean this is the only sense it really makes to even talk about what is the 'correct' interpretational approach to the constitution. I happen to believe that creating at least some resistance to easy interpretational change of constitutional provisions is a good thing since it increases the chance of avoiding the harms of transient passions, e.g., hopefully avoiding scare based violations of rights. However, insisting on a too literal approach runs the risk of lowering people's respect for the constitution and thus encouraging a 'fuck what the constitution says let's just appoint judges who do what's right.' In other words there is a continuum of approaches here and which one is right is an empirical matter not one that can really be determined by the sort of argument you give here.

Of courses you can just bang your fist and insist that interpreting the constitution a certain way is directly built into your moral theory but that's not an argument it's just an assertion and Dorf and others can equally well do the same.

Or to put the point as a question: What sorts of things do you take to be compelling arguments that one variety of interpretational philosophy is better than another?
3.12.2008 3:59pm
Thoughtful (mail):
The problem is that 230 years ago we had our lives and, in a very small corner of them, was the government dealing with important, basic issues that nonetheless did not impact significantly on most people most of the time.

Now we have a leviathan government that makes decisions that impact directly on most of us most of the time, and, over in a very small corner, we have what remains of our lives untouched by the government.

As a result, most people cannot even begin to comprehend how the daily problems of life could be handled if the Constitution didn't allow the government to handle it.

So OF COURSE the Constitution, properly interpreted, MUST allow the government to handle all these problems.

Very intelligent legal theorists have no more imagination in this regard than the man on the street. What is "morally odious" to Dorf are likely simply social problems he cannot conceive a solution to without government intervention.
3.12.2008 3:59pm
Gino:
I think the importance of interpretations that would be "enormously disruptive of our legal/political order" should not be ignored. If an interpretation is so disruptive, but is consistent with the text of the Constitution and the intent of the Framers, that it causes politicians and the people to pursue the amendment process, then the interpretation has served an important purpose and the integrity of the Constitution is strengthened, not weakened. Avoiding disruptive interpretations is one of the forces that leads to "living constitution" interpretations and renders the amendment process, which is right there in the Constitution, the unreasonable legal/political approach. In other words, some interpretations may be extremely disruptive of the legal/political order, but we have a process available to correct the situation, assuming a correction is indeed in order. Avoiding such interpretations results in "living constitution" interpretations (like the delegation doctrine in the area of administrative law), which changes the whole legal/political landscape by softening the force of the Constitution's words and intentions.
3.12.2008 4:16pm
Ralph Phelan (mail):
The argument for 'principled' constitutional interpretation is that the expected benefits of instituting a tradition of viewing the constitution as inviolable is larger than the expected benefits of changing it willy nilly.
Which is in fact the whole point of having one at all.

However, insisting on a too literal approach runs the risk of lowering people's respect for the constitution and thus encouraging a 'fuck what the constitution says let's just appoint judges who do what's right.'

Or else it increases the public's pressure on their elected representatives to use the existing amendment procedure to change the constitution to be more to their liking.

That approach is frustrating only to people who find it harder to persuade voters than judges that the changes they desire are good ones.
3.12.2008 4:37pm
T. Gracchus (mail):
Is it "what the constitution actually says" or "what the constitution actually said"?
3.12.2008 4:43pm
MarkField (mail):

While a consensus about the moral odiousness of racial apartheid exists today, it did not exist in the 1920s when President Wilson segregated the federal government for the first time.


Pedantic factual point: Wilson was President in the 1910s, not the 1920s.
3.12.2008 4:48pm
McGrath (mail):
A.W. -- "Cruel and unusual" is a standard that necessarily asks you to make a value judgment about the definition of cruelty. If the framers wanted us to simply not allow certain punishments of which they disapproved, rather than making independent value judgments, they would have just listed the disallowed punishments, right?

If they couldn't do that because they didn't agree on exactly what was allowable, then they didn't have a coherent collective intent. If they didn't want to limit the application to a given list, then they must have wanted the standard to be applied on a case by case basis, which requires defining cruelty. There are phrases in the Constitution that you can insist have an "original meaning," but the 8th Amendment is not where you should hang your hat.
3.12.2008 5:13pm
CDU (mail) (www):
Pedantic factual point: Wilson was President in the 1910s, not the 1920s.
Pedantic perhaps, but not factual. Wilson was President in both the 1910s and the 1920s. He was sworn in on March 4, 1913 and didn't leave office until March 4, 1921.
3.12.2008 5:45pm
Bruce:
If the Constitution has no meaning independently of a judge's own views of moral odiousness

This may be where you think the slippery slope ends, but it's not what Dorf said.
3.12.2008 6:14pm
AF:

The problem is the existence of disagreement over moral odiousness. While a consensus about the moral odiousness of racial apartheid exists today, it did not exist in the 1920s when President Wilson segregated the federal government for the first time. And it did not even exist through the 50s and 60s. So if we follow Dorf's apparent methodology, courts should have upheld Plessy v. Ferguson until the late 1960s when a consensus about its moral odiousness had emerged.


But that's precisely Professor Dorf's point: the consensus exists today. Whether it existed in the past is irrelevant. Morally odious results -- according to presently existing consensus -- are disqualifying for a theory of the Constitution.
3.12.2008 6:25pm
CDU (mail) (www):
Morally odious results -- according to presently existing consensus -- are disqualifying for a theory of the Constitution.
Why? If there is a consensus that the results are morally odious, then surely there is enough of a consensus to amend the constitution.
3.12.2008 6:32pm
Ralph Phelan (mail):
Morally odious results -- according to presently existing consensus -- are disqualifying for a theory of the Constitution.

Now how do we determine what is the currently existing consensus definition of "morally odious."

Do we go with Dorf's unsupported assertion that "not forbidding most forms of official sex discrimination" must be morally odious? Do we go with the Supreme Court's guesses as to what "the consensus" is?

Or do we go with the fact that the nation's elected representatives, given a chance to pass the ERA, declined to do so?

I'd say the latter is obviously the right answer - the amendment process is the built in means of keeping the Constitution in step with the national consensus. I'm going to be cynical now and assume that Dorf doesn't like this answer because the national consensus as understood by our elected representatives is not what Dorf thinks it should be.
3.12.2008 6:33pm
Brett Bellmore:
It's not just a matter of thinking that what the Constitution actually says is too odious to permit. If the Dorfs of the world thought that, and only that, they'd pursue constitutional amendments to fix the problem.

It's actually a matter of thinking that what the Constitution actually says is unacceptably odious, and that their fellow Americans could never be persuaded to agree.

IOW, it's contempt not just for the idea of a written constitution, but for their fellow citizens, as well.
3.12.2008 6:36pm
ejo:
BB pretty much calls it-the LCer's know that they can't reach politically what they want, so there only hope is to use the Courts to impose their will. it's much easier to do if the Constitution is the equivalent of toilet paper to be used by one of the chosen for whatever they will. societal consensus is a red herring-if a consensus existed, they wouldn't need to use the courts.
3.12.2008 6:48pm
Milhouse (www):
Judges' entire authority comes from the constitution. If they don't obey it, why should anyone obey them?
3.12.2008 6:52pm
Another Kevin (mail):
Hmm, I find the word, 'odiousness,' to be awkwardnessful. Is there something wrong with 'odium?'
3.12.2008 7:00pm
Mourad Fleming (mail):
The problem I have is that originalism is a novelty in the common law tradition and puts the USA out of line with all the many other common law traditions. One NZ judge likened it to a "quaint form of ancestor-worship".

When giving a lecture at the Inner Temple, even Mr Justice Scalia, felt he would have problems with holding that the branding of thieves with a hot iron would be constitutionally permissible on the footing that it would not have been considered "cruel and unusual" at the time of the founding fathers.

Yes, the "living document" process involves a court in considering how society's standards evolve, but it is always an incremental process which lags behind the latest fads. Look at the evolution of Privy Council decisions on Commonwealth death penalty statutes.

The common law has always involved an incremental approach to construction and interpretation of precedent - evolution rather than revolution. Box in the development of the law for long enough and the law falls into disrepute and one ends up with the massacre of the judiciary. With the present Supreme Court Bench, one gets the feeling that the death watch beetles are ticking away in the wood of the Courtroom.
3.12.2008 7:02pm
AF:
Now how do we determine what is the currently existing consensus definition of "morally odious."

The Constitution answers this question:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law . . . .

If a judge holding a particular view of the Constitution can't be nominated by the elected President or confirmed by an elected Senate, that view cannot be the officially sanctioned interpretation of the Constitution. By design.
3.12.2008 7:17pm
Thoughtful (mail):
It seems to me there is a significant difference between interpreting in any given era what "cruel and unusual" means, a necessary interpretative act, but one based in Constitutional text, and wholly ignoring and redacting large sections of the written Constitution, as Barnett argues has occurred.
3.12.2008 7:50pm
MarkField (mail):

Pedantic perhaps, but not factual. Wilson was President in both the 1910s and the 1920s. He was sworn in on March 4, 1913 and didn't leave office until March 4, 1921.


Touche. However, I was responding to the assertion that Wilson segregated the federal government in the 1920s. He did do that, but it was in his first term (1913-17).
3.12.2008 8:09pm
juris_imprudent (mail):
The problem I have is that originalism is a novelty in the common law tradition and puts the USA out of line with all the many other common law traditions.

A written Constitution, requiring super-majority approval of amendment, is also a novelty in the common law tradition. It was meant to be. That those not bound by such would view it as an anchor and anachronism is not surprising. The problem is when those who ARE bound by it have the same damn view.
3.12.2008 9:41pm
R:
I wonder if during the framing of the constitution, one framer said to the other framers, "Hey, guys, you think maybe we should add a line saying something like, 'we tried our best to be clear, but no one's perfect, so if you're ever wondering what the intention of the framers was in regards to interpreting the vague parts of this document... here it is: please interpret it to mean what you think we meant it to mean.'"?

Do you think the other framers laughed at that guy?
3.12.2008 10:02pm
Jay Myers:
Mourad Fleming:

The problem I have is that originalism is a novelty in the common law tradition and puts the USA out of line with all the many other common law traditions.

The federal courts are not common law courts and thus are outside the common law tradition.

"Courts which originate in the common law possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied. The reasoning from the bar, in relation to it, may be answered by the single observation, that for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law."
Ex parte Bollman, 8 U.S. 75, 93-94 (1807) (Marshall, C.J.)


One NZ judge likened it to a "quaint form of ancestor-worship".


It is ancestor worship to follow the law unless and until that law is changed according to the procedures set forth for doing so? Or is it ancestor worship to maintain that the meaning of a law doesn't change unless some action is undertaken by the legislature to change it? What that judge calls ancestor worship I call the rule of law.


Yes, the "living document" process involves a court in considering how society's standards evolve, but it is always an incremental process which lags behind the latest fads. Look at the evolution of Privy Council decisions on Commonwealth death penalty statutes.


If society's standards had truly evolved, then there shouldn't be any trouble in getting a Constitutional amendment passed using one of the two legal methods, right? Thus there is no need to illegally amend the constitution by judicial fiat.


The common law has always involved an incremental approach to construction and interpretation of precedent - evolution rather than revolution.


Again, the federal courts, including SCOTUS, owe their existence and authority to written law, not the common law. State and local courts are common law courts. We would do well to remember the distinction.
3.12.2008 10:37pm
Justin (mail):
Randy missed a serious (and obvious - I'm actually really concerned that Randy missed this) point that Dorf was making. If the SCOTUS was actually serious about what Dorf calls the narrow originalism, it loses any sort of political legitimacy. If the Constitution mandated gay marriage, people might grumble, quite a bit. If the Constitution outlaws the administrative state, it gets scrapped. The Constitutional experiment ends, and we have to craft another Constitution.

To re-interpret Dorf's secondary point as simply "rulings I don't like" completely misses the point.

PS: I don't necessarily agree with Dorf - I actually don't think I agree with him at all, as I am more aboard Balkin-styled originalism - but I think Randy's response is extremely weak.
3.12.2008 11:01pm
Calvin John TerBeek (mail):
What is interesting is that Barnett accuses Dorf of being concerned only with results, but if one reads Barnett's scholarship, it is clear that, "despite all its eloquence and sophistication, Barnett's version of originalism seems suspiciously concerned with a significant reconstituting of constitutional law toward a libertarian reading of the document."

Barnett is a libertarian. How is this any different from say, Tribe (albeit 20 yrs ago), arguing that the 13th Am's involuntary servitude clause prohibits abortion restrictions/bans. (Tangentially: I know Koppelman subscribes to this view (or did) but would this be considered an "off the wall" constitutional argument" today???).

This is *shameless* (shameless!) self promotion, but I recently posted a paper on SSRN (and am shopping it for publication) entitled "The Cognitive Dissonance of the New Originalsim"

3.12.2008 11:17pm
MarkField (mail):
Jay Myers, your quote from Bollman defeats your whole argument. Marshall specifically said "for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law." IOW, he limited his rejection of the common law to the issue of jurisdiction.
3.12.2008 11:21pm
randal (mail):
McGrath has it right. If you don't like the way the constitution is getting interpreted, elect a president and senators who will appoint people that interpret it more to your liking.


Also - you sound silly when you make claims like "originalism or bust." "Ultimately, this is what a written constitution is for, provided that what the constitution actually says is good enough to follow." Wrong. The written constitution is there to provide a common conceptual framework. Violating its spirit is politically impossible. Violating its letter is hard. Violating what historians and lawyers say was in the framers' minds at the time is less hard. It's ridiculous to intimate that if we don't channel the framers, we might as well throw it away.
3.12.2008 11:26pm
Mourad Fleming (mail):
Jay Myers:-

1. You appear to be confusing both "inherent jurisdiction" and with "interpretation". The Supreme Court of England and Wales has "inherent jurisdiction" because its authority descends lineally from the curia regis. An English County Court has no inherent jurisdiction because it is a creature of statute. Likewise many Supreme Courts in common law jurisdictions.

2. Nor is "interpretation" to be confused with "illegal amendment by judicial fiat". In the citation you yourself give, the learned Chief Justice points out that resort may be had to the common law on matters of interpretation.

2. The proper approach to constitutional interrpetation is, I contend, set out in the Judgment of the Privy Council in
Reyes v. R (Belize)[2002]2 AC 235 at para 26:-
"When (as here) an enacted law is said to be incompatible with a right protected by a constitution, the court's duty remains one of interpretation. If there is an issue (as here there is not) about the meaning of the enacted law, the court must first resolve that issue. Having done so it must interpret the constitution to decide whether the enacted law is incompatible or not. Decided cases around the world have given valuable guidance on the proper approach of the courts to the task of constitutional interpretation: see, among many other cases, Weems v United States (1909) 217 US 349 at 373; Trop v Dulles (1958) 356 US 86 at 100-101; Minister of Home Affairs v Fisher [1980] AC 319 at 328; Union of Campement Site Owners and Lessees v Government of Mauritius [1984] MR 100 at 107; Attorney-General of The Gambia v Momodou Jobe [1984] AC 689 at 700-701; R v Big M Drug Mart Ltd [1985] 1 SCR 295 at 331; State v Zuma 1995 (2) SA 642; State v Makwanyane 1995 (3) SA 391; Matadeen v Pointu [1999] 1 AC 98 at 108. It is unnecessary to cite these authorities at length because the principles are clear. As in the case of any other instrument, the court must begin its task of constitutional interpretation by carefully considering the language used in the constitution. But it does not treat the language of the constitution as if it were found in a will or a deed or a charterparty. A generous and purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the constitution, but it is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society (see Trop v Dulles, above, at 101). In carrying out its task of constitutional interpretation the court is not concerned to evaluate and give effect to public opinion, for reasons given by Chaskalson P in State v Makwanyane, 1995 (3) SA 391, in para. 88:

"Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society.""

I suspect that like most people who propound "originalism" your real motivation is to seek to abrogate as far as possible the ability of a written constitution to trump a legislative enactment and so weaken the protections afforded by the constitution - the antithesis of the intent of your Founding Fathers.
3.12.2008 11:49pm
EIDE_Interface (mail):
Either the Constitution means what it says, or it means nothing. No negotiations on this! Give me liberty or give me death!
3.13.2008 1:58am
EIDE_Interface (mail):

ejo:
as long as the results are in my favor, by god I love the "Living Constitution".
3.12.2008 2:43pm


Exactly! I don't like that the 1st amendment gives my political enemies unlimited right to spew their venom, but I will defend their right to do so because of the larger principle.
3.13.2008 2:01am
Oren:
Either the Constitution means what it says, or it means nothing. No negotiations on this! Give me liberty or give me death!
Nobody in their right mind denies that the Constitution means what it says. Oftentimes what it says, however, is either vague, ambiguous or referential. In all three of those cases, someone has to step and make a judgment. . . I'm sure there's some profession somewhere that can handle the task.
3.13.2008 2:40am
eric (mail):
<blockquote>
One NZ judge likened it to a "quaint form of ancestor-worship".

</blockquote>

Someone remind why I should give a shit what this NZ judge thinks?
3.13.2008 2:58am
eric (mail):
<blockquote>
I suspect that like most people who propound "originalism" your real motivation is to seek to abrogate as far as possible the ability of a written constitution to trump a legislative enactment and so weaken the protections afforded by the constitution - the antithesis of the intent of your Founding Fathers.
</blockquote>

Oh I see, like those pesky originalist who think that the D.C. statute in <i>Heller</i> should be struck down because it violates the Second Amendment.

Conflating advocates of originalism with advocates of extremely limited judicial review is inaccurate. I seem to remember some liberal law professors claiming that Thomas was the most activist judge because he would strike down the most legislative enactments.

Your argument also begs the question by assuming that founders intended the "protections afforded by the constitution" to change over time outside of the amendment process. I do not think you can prove they intended judicial fiat.
3.13.2008 3:15am
Brett Bellmore:

Oftentimes what it says, however, is either vague, ambiguous or referential.


The problem is, not nearly AS often as people like Dorf insist. It's a two step process:

1. I can read what I want into ambiguous clauses.

2. EVERY clause is ambiguous.

I mean, let's be honest about this: The commerce clause isn't ambiguous enough to admit it's current 'interpretation'. It simply isn't.
3.13.2008 7:31am
Justin (mail):
Wouldn't it be nice if people addressed Dorf's points? Instead of addressing strawmen (ie "people like Dorf?"). If I recall, its Dorf, and not "people like Dorf," who wrote that reply, and he used actual words to convey actual arguments. You should have the decency to actually engage those arguments.
3.13.2008 9:51am
Ralph Phelan (mail):
Nobody in their right mind denies that the Constitution means what it says.

Then explain Roe vs. Wade, McCain/Feingold, and U.S. v. Miller. There's a long history of people successfully arguing that the Constitution means things it doesn't say, and doesn't mean things it does say.
3.13.2008 12:42pm
Ralph Phelan (mail):
If the SCOTUS was actually serious about what Dorf calls the narrow originalism, it loses any sort of political legitimacy.... If the Constitution outlaws the administrative state, it gets scrapped.


Another way of saying this is that there's a huge backlog of poor decisions out there (mostly traceable to crap like Wickard v. Filburn) and that bringing our constitution and our actual practice back in line with each other is gonna be a bunch of work requiring either a lot of amending or a lot of change in how the Federal government does its work, and probably both. Remaining temporarily agnostic as to whether the regulatory state is a good idea, I think that the way it came about is illegitimate, and it should be either democratically legitimized or removed.


I'm in the midst of an ISO push in a manufacturing plant and there's a distressingly large number of instances where what's in the documentation is not what's actually happening out on the shop floor. In the course of fixing the mess, I have to look at each instance and decide which one is correct, and either tell the operators to follow the documentation or change the documentation. I don't always get it right the first time, either. But either one is better than having them ignore the documentation. When people ignore the documentation you have to depend on tradition and inertia to keep them from doing whatever the hell they want and screwing things up. Fortunately tradition and inertia can hold things together for a while, but they're not infallible and don't last forever.
3.13.2008 12:57pm
Ralph Phelan (mail):
If the Constitution outlaws the administrative state, it gets scrapped.

Or amended, which is not the same thing (even if were to turn out that I was appalled by the amendments my fellow citizens chose to ask their representative to enact.)
3.13.2008 1:00pm
Mark Bahner (www):

As a result, most people cannot even begin to comprehend how the daily problems of life could be handled if the Constitution didn't allow the government to handle it.


But the Constitution doesn't allow the federal government "to handle it." The Tenth Amendment forbids a majority of what the federal government does, e.g. Social Security, Medicaire, Medicaid, the Department of Education, the federal mininum wage, etc.

It's exactly like The Emperor's New Clothes. Everyone-- including even the authors on VC--pretends we're following the Constitution. But I doubt any of the Founders would recognize our government, beyond the mechanics that there is a House, Senate, President, etc.

The Constitution the Founders wrote was one of a limited federal government, of enumerated powers. That was the federal government that was practiced throughout their lifetimes (i.e., to the 1830s or so). Our current federal government is not one that is limited, or possessed only of enumerated powers.

"I consider the foundation of the Constitution as laid on this ground: That 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.' [10th Amendment] To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition."


Welcome to the 21st century, Mr. Jefferson.
3.13.2008 1:12pm
Mark Bahner (www):

In other words, judges should follow their own moral views (if they agree with Dorf's) regardless of how widely accepted those views may be.


???

I agree that he's saying that. But I disagree that's even relevant to the law.

In my opinion, judges should follow the law. That's their job. If the Constitution requires that people of one state return escaped slaves back to the place from which they escaped, that is what a judge should find.

It is irrelevant whether the judge personally considers slavery an abomination. It is irrelevant whether opinion polls show an overwhelming majority of people consider slavery an abomination. It is even irrelevant whether a recently passed Congressional resolution or law proclaims that slavery is an abomination.

If a law--or the Constitution--needs changing, then there are procedures for doing so. It is not the job of a judge to insert personal morality or some view of where public opinion stands. Follow the law.
3.13.2008 1:54pm
Ralph Phelan (mail):
Mark - I'm not sure I agree with you about what the judge should do. SOmetimes following your conscience and breaking the law is the right thing to do. Obviously the bar for when to do it is a lot higher if you're a judge, but I don't think it's infinitely high.

But if a judge is going to follow his conscience and break the law, he should admit that that's what he's doing.
3.13.2008 3:02pm
A.W. (mail):
McGrath

You wrote:

> A.W. -- "Cruel and unusual" is a standard that necessarily asks you to make a value judgment about the definition of cruelty. If the framers wanted us to simply not allow certain punishments of which they disapproved, rather than making independent value judgments, they would have just listed the disallowed punishments, right?

But that question could be turned on its head. If they intended for future judges to call anything they want "cruel and unusual" then couldn't they have said "no punishments that are cruel and ususual in the eyes of the federal judiciary shall be allowed."

By comparison, a comprehensive list of punishments that are both cruel and unusual would be almost impossible to compile. But the fact is the framers could have explicitly handed it over to the judiciary and chose not to, so the judiciary shouldn't just make crap up, but should try to determine its meaning by the mores of the time.

I always find it strange that people want to imply rules into the constitution which could have been easily written. Like here, i will annoy my libertarian friends. They love to argue that the constitution implies a right to do whatever you want, so long as it doesn't harm another. They further claim the founders felt exactly this way--that this is true originalism. But if that's the case, why didn't the founders actually write those words in? Indeed, i have repeatedly challenged libertarian orginalists to even find statements of philosophy by the founders, or even by influential philosophers to that effect. no one has met the challenge so far.
3.13.2008 5:46pm
Mark Bahner (www):
Mark - I'm not sure I agree with you about what the judge should do.


Ralph - That's OK...I'm not sure I agree (100 percent) with myself about what the judge should do. ;-)

That's why I should never comment at lunchtime. ;-)

SOmetimes following your conscience and breaking the law is the right thing to do. Obviously the bar for when to do it is a lot higher if you're a judge, but I don't think it's infinitely high.

But if a judge is going to follow his conscience and break the law, he should admit that that's what he's doing.


Well, I agree with that 100 percent. (And only disagree about 1 percent. ;-))

The huge difference between a judge and the rest of us is that (I assume!) they take some sort of oath of office to follow the law.

I'll relate the one time I was ever on a jury. It was a civil suit. A medical malpractice case. And it was a decade or more ago, so my memory of it is probably fuzzy. But all parties--the judge, the plaintiff's lawyer, and the defendant's lawyer--asked me about 30 times in 30 different ways, whether I considered myself capable of rendering a verdict on the basis of North Carolina law, as explained to me by the judge.

That is, I was (repeatedly) asked whether I could ignore any sympathies I had with either side, or any opinion about what the laws should be, and follow the law

as the judge explained it.


I
promised
them that I could. And I did.

If, for example, I was instead interviewed as a potential juror in a federal case for medical marijuana, I would have told them that I had absolutely no intention of following the supposed federal law, as I think the federal law is not only blatantly unconstitutional, but profoundly immoral. (So I assume the prosecution would never allow me to sit on such a jury!)

So it all has to do whether one has made some sort of promise to follow the law. If one has done so...geez, the bar ought to be very, very high. (As you wrote.) And, as you wrote, the person breaking his or her oath should have the honesty and courage to acknowledge it.
3.13.2008 10:19pm
Mark Bahner (www):
One more thing about not commenting at lunch. I apologize to Professor Barnett for quoting him out of context. At the end of his post, he writes:


Everyone's second choice should be to follow the meaning of the Constitution and construe it in ways that do not contradict that meaning even where this may lead to some results of which you object AND expect your political opponents to do the same.


I basically agree with the first part of the sentence. The second part...it's frightening. (I know it's the situation as it currently exists, but it's still frightening.)
3.13.2008 10:42pm
NickM (mail) (www):
Dorf's logic completely fails here.
Why must the Constitution prohibit everything that is morally odious?
If the Constitution mandated something that is morally odious, there would be a problem with the Constitution, but since the Constitution is not the only law and was never conceived of as the only law, why must the Constitution forbid even things that are generally agreed to be morally odious? Is it bad that the Constitution does not forbid stomping on puppies and kittens for amusement?

Nick
3.14.2008 4:06pm
Jason D. (UA) (mail):
Justin, I don't think Randy misses the point. If the result of a correct interpretation of the Constitution is the creation of a new one, then we should create a new constitution. At least that way, there is a document that will limit the government, the very thing a Constitution should do. Instead, Dorf doesn't argue for a new Constitution if the old current one creates bad results. He argues judges, the very people limited by the Constitution, should ignore it. Thus, Randy is correct. Dorf doesn't want a Constitution that avoids immoral results, but a judicial philosophy that justifies his preferred results.
3.15.2008 4:09am