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The Constitution and the Golden Calf - A Response to Randy:
Based on his comment below, I worry that Randy might misunderstand my view on his exchange with Professor Jost. In light of that, I wanted to explain my position a bit more clearly.

  I really don't care whether we label what the Supreme Court says as what the Constitution "is," or whether we use that label for what Randy Barnett thinks, or what Pam Karlan or anyone else thinks. My first post noted the common convention of referring to what the Supreme Court has said as what the Constitution "is," but that is just a convention: I pointed it out only to avoid the confusion that results when we mix conventions without saying so. I am just as happy if we call the Constitution as described by the courts as "Larry," the Constitution as construed by Randy as "Moe," and the Constitution as construed by Pam Karlan as "Curly." They are just labels, and my primary interest is in avoiding confusion among them.

  Of course, Randy is welcome to use his label, in which his vision of the Constitution is "the real Constitution," while the Constitution that others believe in are false idols. I envision Randy coming down from Mt. Sinai with a copy of Restoring the Lost Constitution, as the Israelites look up from their worship of the golden calf of the United States Reports. My point is only that the choice of label is a rhetorical move, not a jurisprudential one. I recognize it is an important rhetorical move: the believers-in-the-true-God-versus-the-heathens meme has worked for millenia, and I gather from what Randy says that it is a key part of trying to popularize his view of how the Constitution should be construed. But I think it's important to recognize the rhetorical move.

  Why is it important? I think it's important because so many people have such different visions of what the true Constitution really is. By and large, those visions tend to match the ideologies of their holders: libertarians envision a libertarian Constitution, progressives a progressive Constitution, conservatives a conservative Constitution. Each group, in good faith, sees its vision as the true Constitution. Given the wide range of views, I think it's confusing to use labels like "the real Constitution" in a way that avoids recognizing the good faith disagreement about what that real Constitution means.
Pyrrhus (mail) (www):
There is no god constitution?
9.22.2009 12:07pm
Ari Taz:
A little too obnoxious, but point taken.
9.22.2009 12:09pm
StevenG:
Orin, I'm not sure you're going to be persuasive without rampant overuse of bold, underlining, and all caps. I wonder if Randy uses crayon when he's not confined to this medium.

(On a less sarcastic note, a brief comparison of this post with Randy's last clearly shows how an overuse of emphasis is detrimental to making your point. Randy has good points that can be seriously advocated; instead, he looks crazy.)
9.22.2009 12:11pm
Rhode Island Lawyer:
Once again, Professor Kerr, you do yourself proud.
9.22.2009 12:16pm
DavidBernstein (mail):
In the early 20th century, the Progressives of the time quite refreshingly acknowledged that their vision of the Constitution was completely contrary to the text and accepted meaning of the document, and therefore explicitly argued that the Constitution should be either amended, ignored, or replaced with something else called the "Living Constitution."
9.22.2009 12:16pm
tvk:
Well said. Not knowing Randy personally, I don't know whether it is just his way of expression, but his post comes off slightly unhinged. The key being that he completely denies the legitimacy of other points of view and the good faith of others. In his world, Randy's interpretation of the constitution is the "real constitution" but the justices' interpretation is just their personal and illegitimate policy preferences. I am sure Randy believes this, and I am sure he has plenty of fellow travelers, but it is still just one point of view about what the constitution really means. One that just happens to largely match Randy's political preferences. There is nothing more off-putting than that kind of arrogant self-righteousness.
9.22.2009 12:17pm
DavidBernstein (mail):
I should have said "their vision of what the Constitution should allow the government to do."

And I should add that no one at the time pretended that the "Living Constitution" was the same as "the Constitution."
9.22.2009 12:17pm
Careless:

My first post noted the common convention of referring to what the Supreme Court has said as what the Constitution "is," but that is just a convention

A convention among lawyers, surely. As Randy pointed out, not a common convention in the public
9.22.2009 12:23pm
Steve:
Randy makes an interesting point about what was said and not said at the Sotomayor confirmation hearings. He takes this as proof that the people insist on judges who adhere to the Constitution as opposed to just making it up as they go.

But I think he overlooks the possibility that "the people" actually want two sets of inconsistent things: (1) judges who adhere to the Constitution, and (2) judges who reach a certain set of policy outcomes, such as upholding New Deal policies.

If you come in with the belief that Medicare is unconstitutional, then you're probably not going to be able to reconcile the inconsistent views of a majority of the populace. But Randy is making a logical leap by assuming that, if people came to understand Medicare is unconstitutional, their belief that the Constitution should be enforced as written would lead them to want the courts to strike down Medicare. But it's also plausible that people would change their minds about whether the Constitution should be interpreted as written, if interpreting it as written means we get unacceptable outcomes like striking down Medicare. I tend to think the latter is the more likely outcome.
9.22.2009 12:24pm
Jon Roland (mail) (www):
There is a problem with choosing labels that carry merit judgments, and "is" and "ought" do that. "Larry", "Moe", and "Curly" perhaps less, but those labels do not carry much useful information. What works better is "law" and "legal practice":

"Law" = commands from a lawgiver to the public that the public has a duty to obey.
"Legal practice" = what legal practitioners do, which includes judicial decisions.

Then we have a clean and usable classification. The Constitution (whatever it means) is the "law". What judges think it means is "legal practice". If we make that distinction consistently, then we can go on to debate whether the opinions of judges concerning what the law means are accurate, which is the way the debate needs to be framed if we are to get anywhere.
9.22.2009 12:27pm
Tracy Johnson (www):
Reminds me of the Bible story of when Judah 'found' a copy of the the law after a period of what, a few hundred years of ignoring it? Then all the priests said (figuratively): "Oops, we were supposed to be doing THAT?" I think there was much fasting and repentance following that incident.
9.22.2009 12:27pm
Brett Bellmore:
The problem is, what's being omitted from that list is, "the Constitution as ratified and formally amended". Seems THAT Constitution, the written one so many people own pocket copies of, is just off the table. But that constitution is the one that's the "real" Constitution. All the others are just glosses on it.

And the point of declaring the "Constitution as interpreted by the Supreme court" as the real constitution, is just precisely to privilege it over the Constitution as ratified and formally amended, when people noticed discrepancies, and start complaining.
9.22.2009 12:27pm
Cornet of Horse:
Ah, life in the post-modern Babel. Here's hoping we get post the post- without too much horror.

Randy, thanks for being willing to take the slings and arrows. Orin's usual prudence is not evident.
9.22.2009 12:28pm
ShortStack:
This debate is pedantic even for law school professors.
9.22.2009 12:28pm
OrinKerr:
Cornet,

Perhaps you could elaborate on where you think I am erring? That would be helpful, if you have the time.
9.22.2009 12:29pm
Jack R (mail):
"the Constitution as described by the courts" ... "the Constitution as construed by Randy" ... "the Constitution as construed by Pam Karlan" ... "[Randy's] vision of the Constitution" ... "libertarians envision a libertarian Constitution, progressives a progressive Constitution, conservatives a conservative Constitution"...

Nowhere does Orin mention the actual Constitution - the actual document with actual words. Only a "description" or a "constu[ction]" or a "vision". It appears to me that the difference between the approaches here is that Orin seems to believe that there isn't an actual Constitution (instead, there are only descriptions or constructions or visions), and Randy does.

Do words mave meanings apart from the reader's construction or vision of such words?
9.22.2009 12:32pm
Commentor (mail):
Basic principle: No matter how many constitutions or statutes we pass, our judges are common law judges who employ deductive reasoning. Their rulings are just as much the "law" as a statute is, or the Constitution is. So there.
9.22.2009 12:34pm
Pyrrhus (mail) (www):
@JackR That's the impression I got as well. Orin seems to be making essentially a statement of agnosticism. Agnosticism seems somewhat more appropriate for a god that cannot be seen than for a document readily available to all men.
9.22.2009 12:37pm
yankee (mail):
Of course, Randy is welcome to use his label, in which his vision of the Constitution is "the real Constitution," while the Constitution that others believe in are false idols.

I don't think this is an accurate portrayal of the distinction Randy is trying to make. As I read him, Randy is saying that "interpreting the Constitution" is applying a textualist interpretive theory to the text of the Constitution with no deference to what the Supreme Court or anybody else has said. Consider the following interpretive debate:

Randy: The commerce clause severely restricts what the Federal government can do, because blah blah blah late-18th century dictionaries and ratification debates demonstrate that a reasonable person would have understood "commerce among the several States" to mean "business transactions that actively involve crossing state lines right then."

Sonia Sotomayor: "Commerce among the several states" means "anything that has any effect on interstate commerce in any way, no matter how tenuous," because the Supreme Court said so in Wickard v. Filburn.

Liberal textualist: Late-18th century dictionaries and ratification debates blah blah blah demonstrate that a reasonable person would have understood "commerce among the several states" to mean "anything that has any effect on interstate commerce in any way, no matter how tenuous."

Marxist humanities professor: By applying Foucaultian poststructuralist hermeneutics, we see that "commerce among the several states" means "the federal government shall be a dictatorship of the proletariat."

As I read Randy, both he and the liberal textualist are "interpreting the constitution," while Justice Sotomayor is not. The liberal textualist has reached the wrong conclusion, but is "interpreting" because they are making an effort to follow the proper methodology (de novo textualist-originalist interpretation).

I am not sure whether Randy thinks the Marxist humanities professor is "interpreting" the Constitution.
9.22.2009 12:39pm
Recovering Law Grad:
Is there a conservative out there who can clearly articulate what the difference is between being a "conservative" and being a "libertarian"?

I certainly understand how Bush cannot be construed as a libertarian. My question is more fundamental: what are the guiding principles of "conservatism" that are at odds with or that reject various principles of "libetarianism"?

To be frank, I ask because the distinction seems bogus to me. It strikes me as an attempt to justify what appear to be unprincipled positions, like the opposition to gay marriage.

In all sincerity, I'd like to hear the argument, because I'd like to be as charitable as I can in understanding those who evoke the distinction.
9.22.2009 12:41pm
ChrisTS (mail):
I did not find Orin's post even slightly 'obnoxious.' Clear and, perhaps, pointed, but not offensive. My only conern with it is that three names may not suffice.

As to Brett's point: I think Orin and others have made it abundantly clear that they do no believe the words of the Constitution are impervious to interpretation. Indeed, many people think such texts demand interpretation, particularly when novel issues and cases arise.

One can insist on being an originalist, but that is only one aproach to understanding the Constitution or any other legal text. Perhaps the orignalist conception of the Constitution [assuming there is only one] could be named 'Harpo.' But, there are still other, plausible and defensible, visions of the same text. Orin is simply trying to make that point and to request a bit of intellectual honesty from those whose views differ from his.
9.22.2009 12:41pm
Guesty:
The Constitution doesn't say anything about how it is interpreted. Under even the strictest interpretations, the constitution requires some interpretation and implementation.

How you end up with a "correct" means of interpretation is beyong me. The document doesn't mention strict contruction; Marshall noted that it should be construed liberally.

So of course the literal wording of the text doesn't change, but how that wording is interpreted is subject to many interpretation, none of which is demonstrably correct.
9.22.2009 12:42pm
Anderson (mail):
I envision Randy coming down from Mt. Sinai with a copy of Restoring the Lost Constitution, as the Israelites look up from their worship of the golden calf of the United States Reports.

I am struck jealous with admiration.
9.22.2009 12:43pm
Careless:

Of course, Randy is welcome to use his label, in which his vision of the Constitution is "the real Constitution," while the Constitution that others believe in are false idols. I envision Randy coming down from Mt. Sinai with a copy of Restoring the Lost Constitution, as the Israelites look up from their worship of the golden calf of the United States Reports. My point is only that the choice of label is a rhetorical move, not a jurisprudential one.

Ask Randy for a list of things he believes the Constitution allows which he does not like and a list of things he believes the Constitution does not allow which he does like. Repeat with people of other beliefs on the nature of the Constitution.

I'm going to guess you'll find major differences, particularly with the second question
9.22.2009 12:47pm
Jon Roland (mail) (www):
tvk:

Not knowing Randy personally, .... The key being that he completely denies the legitimacy of other points of view and the good faith of others. In his world, Randy's interpretation of the constitution is the "real constitution" but the justices' interpretation is just their personal and illegitimate policy preferences. I am sure Randy believes this, and I am sure he has plenty of fellow travelers, but it is still just one point of view about what the constitution really means. One that just happens to largely match Randy's political preferences.

As one who does know Randy personally, and who has made a similar journey of discovery of what the Constitution means by the study of its historical background, I can testify that his views and mine are not just shaped by our policy preferences. My study of the Constitution has compelled me to abandon or reverse many of my policy preferences, to some of which I had become fervently attached, and I get a sense Randy has had a similar experience. So his opinions, and mine, on what the Constitution means, are not just casual exercises in idiosyncrasy. The historical evidence drives them, and it drives others to similar conclusions who take the time to honestly and competently investigate it.

As for the good faith of judges in making constitutional decisions, we have plenty of evidence that they actually make political decisions and deceptively dress them as constitutional interpretations. I cited the speech of Justice Scalia at the Federalist Society Convention Nov. 22, 2008, as an admission contrary to interest, which, back in the days when "perjury" included any violation of any oath, could have been enough to convict and hang him. The evidence is there for all to see who are willing to honestly look. Judges are not interpreting the Constitution. They are making political decisions. They are not acting in good faith. Let's stop pretending they are, or treating their "opinions" on "what the Constitution means" as worthy of the same respect due to diligent historians.
9.22.2009 12:47pm
John (mail):
The problem here is at the very end of your point--good faith. Most advocates who are really into the fight do not, I think, truly believe that their opponents are acting in good faith.
9.22.2009 12:48pm
Sara:

Do words mave meanings apart from the reader's construction or vision of such words?


What do you think? According to Barnett, we are suppose to construct how a hypothtical reasonable 18th century person would have read the text and thought about the 21st century.
9.22.2009 12:52pm
Adam Kamp (mail):
Here's my question about originalism: What does one do in the situation where the words on the page don't exactly mean what the crafters of the document thought they meant? And I don't mean this to talk about the way that words change in meaning over time, but rather how the words the Founders used were at the time so vague that, as the concepts became more clearly understood, reasonable interpretations of the phrases would lead to laws at odds with the Founders wanted the country to be?

I was arguing in an earlier post that the regulation of commerce falls into this category: the Founders used a term that, in order to be consistently understood, had to be much broader than they intended. Another example, one that blew up almost immediately in their face, was the Necessary and Proper Clause, where even the Founders didn't agree on what their words meant!

What do we do when our founding documents were simply poorly drafted? Do we hew to the letter of the law, which can yield very broad results (and very flexible ones), or do we hew to the spirit of the law, even though it's not found in the text? That's the point at which our personal preferences show up--Professor Barnett would have us use what he imagines to be the spirit of the law, at least in part because that is how he wants the world to be. A progressive might say the opposite--that we should use the interpretive method to avoid being encumbered by traditions. But I'm not sure there's an a priori correct answer.
9.22.2009 12:52pm
Floridan:
Those who argue in favor of the "real" constitution remind me of the seagulls in the movie Finding Nemo: "Mine!" "Mine!" "Mine!"
9.22.2009 12:52pm
tbaugh (mail):
I think referring to the "real" constitution is to suggest that there are some answers (constructs) that are correct and some that are wrong---"It is not silly to maintain that the Constitution can mean one thing in a classroom, another in the legislature, still another in civic debate, and yet another in a courtroom. But each means of understanding the Constitution has implications. Judicial review came from a theory of meaning that supposed the possibility of right answers--from an originalist theory rooted in text." Easterbrook, "Textualism and the Dead Hand," 66 Geo. Wash. L. Rev. 1119, 1126 (1998)
9.22.2009 12:52pm
Eph Unell (mail):
Professor Kerr,

The point you make in the above post - that it's important to use labels that acknowledge the "good faith disagreements" about the Constitution's meaning and to eschew using labels as a rhetorical device to obscure reasonable differences of opinion - makes an assumption which I believe Professor Barnett does not share: That none of those different visions of the Constitution is objectively correct. But if one could be called correct and the others wrong, than using (accurately) the labels "true" or "correct" becomes very jurisprudentially significant.

In light of that I think your analogy is a good one - because (within the context of the Biblical narrative) the Golden Calf was a false god.
9.22.2009 12:55pm
jnet (mail):
Orin, that's a very helpful observation. I think there are different rhetorical strategies. The "Is" Camp is wants to enlist broad public and political support of a particular interpretive method to be the imprimatur of a valid exercise of judicial power. But that is a "gatekeeper" kind of argument. Everyday life is full of real world equivalents of the "multifactor balancing test," so I doubt one would choose, say, the jurisprudential equivalent of just a hammer, to solve a complex problem instead of a 10-blade swiss army knife.
9.22.2009 1:01pm
frankcross (mail):
Jon Roland, I can't for the life of me conceive how you know that your and Randy's position is not shaped by political preferences. Nearly all this shaping (outside of politicians) is subconscious. I can believe that your positions are not shaped by partisan politics in any way, but it's hard to believe that subconscious ideologies do not affect them.

Why does Steve Calabresi disagree so vigorously with Randy on what the Constitution means? Is he dumb or corrupt? Or perhaps just subject to different subsconscious ideological leanings?

Ultimately, unless you believe yourself an omniscient God, you should be cautious about claiming that it is you who know what the "law" is in distinction to legal practice
9.22.2009 1:04pm
ChrisTS (mail):
That none of those different visions of the Constitution is objectively correct.

I read this in light of years of struggling with post-modern colleagues and 'it's all relative' students. If the implication assumes that our options are either (a) a fixed and determinate truth or (b) no standards for reasoning and comparison, then it is too simple [false, even].
Objectivity does not require a single right answer to any and all questions; it simply requires standards of assessment that are not simply a matter of individual's opinions.

With a text as broad in its intent as any constitution must be, we can expect the need to do a fair amount of interpretation. Of course, some minor claims about the text will be easily affirmed or dismissed. But this does not mean we only have objectivity in the latter case.
9.22.2009 1:05pm
yankee (mail):
I cited the speech of Justice Scalia at the Federalist Society Convention Nov. 22, 2008, as an admission contrary to interest, which, back in the days when "perjury" included any violation of any oath, could have been enough to convict and hang him.

What did he say? All I could find is a 50-minute audio recording, and I am not going to listen to the whole thing in an effort to figure out which bit you are talking about.
9.22.2009 1:05pm
ChrisTS (mail):
Anderson:
I am struck jealous with admiration

of Orin's cleverness in likening Randy to Moses or of Randy's getting to play Moses? :-)
9.22.2009 1:06pm
Cornet of Horse:
Orin Kerr,

Thank you for your response. I'm not sure yet that you have erred in your reasoning, but this being the internet, of course that hasn't stopped me from jumping in with two feet into the debate.

You're usually more prudent than that. I don't get the sense that you've fully digested what exactly it is that Randy is saying as opposed to what you're used to his saying. I think he's surprised at the level of disagreement and attempting to backpedal to a point at which agreement can be found (i.e. that the words of the Constitution itself have some salience apart from the Magisterium of the Court), while his interlocutors are still hearing him make the long familiar argument about the meaning of those words.

There are those who make such arguments only because they have to, others who make them appreciating the value of the words themselves, and some even who deny that they have to at all, given political realities. I had thought you joined Randy in the second category, and I think Randy did too. Were we mistaken?
9.22.2009 1:10pm
martinned (mail) (www):

With a text as broad in its intent as any constitution must be, we can expect the need to do a fair amount of interpretation. Of course, some minor claims about the text will be easily affirmed or dismissed. But this does not mean we only have objectivity in the latter case.

There's a bit of tradeoff possible here. If you want more precision, you have to write a constitution that is longer, more detailed. Instead of having one commerce clause, you could have ten, each covering a different aspect of commerce, and together covering exactly the sum total of what the drafter thinks the feds should be able to do.

The problem with that, however, is that the result is a consitution that is more difficult to understand by those whose consent its legitimacy ultimately depends on. (Cf. European Constitutional Treaty, 474 pages, including all the annexes.)
9.22.2009 1:12pm
Jon Roland (mail) (www):
Recovering Law Grad:

Is there a conservative out there who can clearly articulate what the difference is between being a "conservative" and being a "libertarian"?

Why are you asking only "conservatives" to offer their views of what is a "libertarian"? All that is likely to get you is "a libertarian is a conservative with a drug problem". As one who is commonly labeled a "libertarian", I offer a better one:


A "liberal" is someone who got arrested.
A "conservative" is someone who got mugged.
A "libertarian" is someone who got arrested for shooting the mugger.


The word "libertarian" doesn't have quite the same meaning within the legal community that it has in the world at large. I don't come to my constitutional views starting from my policy preferences. I come to my constitutional views from a study of history and the language of the Founders, and my policy preferences have had to be adjusted based on what I found. Those policy positions are commonly called "libertarian", but that is because the positions of the founders were.
9.22.2009 1:13pm
einhverfr (mail) (www):
I think there is more to this than meets the eye though. The Constitution in at least one place incorporates "the principles of common law" by reference.

If we accept common law as a part of our Constitution, then some of Randy's points go away.

The second issue has to do with whether Obamacare exceeds Congress's interstate commerce authority. I think here it most certianly does. If you stop the inquiry there, then it looks unconstitutional. However, if we start looking at it under tax and spend (general welfare) powers, those areas where it diverges don't seem to be so great and the whole act may well be Constitutional.

It is very hard to ground a program like social security or medicare in interstate commerce powers. These however can be grounded in general welfare tax/spending powers much more easily. Whether an act falls outside those powers relating to Obamacare, however, it could probably be rewritten rather trivially to avoid exceeding Constitutional authority (for example, by changing tax structures).
9.22.2009 1:18pm
CJColucci:
Since no one else has mentioned it, I just want to commend Orin for having opened comments on his posts.
9.22.2009 1:19pm
Joseph Slater (mail):
I agree with Orin on this, and I have a question for those who don't. Does the opposing claim -- that Con law is what the "correct" interpretation is, not what precedent says it is -- apply to other areas of law, say statutory law?

For example, I'm a labor law guy. I can point out several examples of Supreme Court precedent interpreting the National Labor Relations Act (NLRA) in which my informed, sincere, professional opinion is that the text of the NLRA commands an answer exactly the opposite of the answer the Supreme Court gave. Not, "I don't like that result as a matter of policy," but rather, "the rule announced is directly contrary to statutory language." I can provide examples on request.

But if somebody asks me what labor law "is" these days, am I supposed to answer with what I think the correct interpretation is / would ahve been? Because my approach has been to describe what Supreme Court precedent holds.

For those taking Prof. Barnett's side, apparently you don't like that approach in Con Law. Should I change my approach for labor law? If so, do you think my answers might confuse some people? Or is Con Law special? If so, why?
9.22.2009 1:21pm
MCM (mail):
Those policy positions are commonly called "libertarian", but that is because the positions of the founders were.


Some of the Founders.
9.22.2009 1:21pm
Cornet of Horse:
Recovering Law Grad,

"Conservatism" is a rough name for one of the diverse ways people may choose to order their lives in a more liberal order. Libertarians believe that order should be as liberal (i.e. free, including free to be diverse) economically as socially, as opposed to forces which seek other values (unity, putative equality) via enforced conformity. When "Progressives" are in the ascendant, conservatives naturally gravitate to support of the more liberal order to protect themselves, and vice versa.
9.22.2009 1:23pm
AnthonyJ (mail):
I think the point might be that the only thing you can unmistakably call the real constitution is just a couple of pages of poorly defined text which must be interpreted; the text is too vague to be usable without interpretation. Once you're adding a layer of interpretation as to what that text means (and originalism is most certainly an interpretive layer) you can no longer lay claim to talking about what the constitution is.
9.22.2009 1:25pm
Cornet of Horse:
OK,

"I really don't care whether we label what the Supreme Court says as what the Constitution "is," or whether we use that label for what Randy Barnett thinks, or what Pam Karlan or anyone else thinks."

There's an option missing from that list. Why would you not care?
9.22.2009 1:26pm
ChrisTS (mail):
martinned:

The problem with that, however, is that the result is a consitution that is more difficult to understand by those whose consent its legitimacy ultimately depends on.

Right. And there might be other reasons for not attempting such specificity. I do not understand when people seek to elevate our founders to the level of omniscient beings. They had pressing problems - like getting a new country off the ground in the face of opposition and under world scrutiny - and they did not have unlimited time to work out all the details they might have.
I think they showed wisdom in choosing the 'looser' model, rather than assuming they could see into the future and dot every i adhead of time.
9.22.2009 1:26pm
David E (mail):
The discussion is way over my head (I'm not a lawyer), but it seems to me that Randy is saying:
1) Individual mandates are not strongly supported by precedent
2) They are expressly forbidden by the written constitution
3) Taking (1) and (2) together suggests they should be ruled unconstitutional by the SC, but
4) they won't be ruled unconstitutional for reasons largely irrelevant to the constitution.

I guess Prof. Kerr agrees with (4). Does he agree with (1), (2), and (3)?
9.22.2009 1:27pm
martinned (mail) (www):
@ChrisTS: You're right, I forgot to mention that aspect of greater detail: It requires easier and more frequent amendment.
9.22.2009 1:28pm
Sara:

Judges are not interpreting the Constitution. They are making political decisions. They are not acting in good faith. Let's stop pretending they are, or treating their "opinions" on "what the Constitution means" as worthy of the same respect due to diligent historians.


I won't defer to historians because at least "judges" are mentioned in the Constitution and according to at least one founder are suppose to say "what the law is." Marbury v. Madison.

Where is the council of diligent historians mentioned in the constitution? No where. Where is the certfying body of the council of diligent historians mentioned in the constitution? No where.

Do you think that even dilgent historians are infalliable? Have they no biases? Do they have perfect information? Do you imagine that historians can even think like an 18th century person not only about the possible meanings of text but about the world today?
9.22.2009 1:31pm
Off Kilter (mail):
Two quick points:

1. For those wondering if it is possible for Professor Barnett to list things he prefers as policy yet he believes are not allowed by the Constitution (a proxy for the view that one's Constitutional interpretations are not mere covers for one's policy preferences), it is clear from Barnett's writings that he is a proponent of anarchocapitalism, including a polycentric legal system. Yet clearly he does NOT believe that is allowable under the Constitution as HE interprets it.

2. Despite the voluminous discussion so far, I've seen nothing about the fact the Constitution--one one under glass in DC--has an explicit amendment process. It follows that the Founders themselves did NOT think judicial interpretations of the Constitution alone were sufficient for future societal desires. They did not, for example, think that if the people wanted Social Security they could just interpret the Constitution as allowing Social Security. Perhaps they felt that if future generations desired a different type of Constitution they could either rebel and set up a new government, as the Founders had, or they could amend the Constitution they were given using the amendment process. Why would they include a conceptually easy though practically difficult amendment process if the Constitution was simply "whatever Supreme Court justices choose to read it as being"?

Some see the Supreme Court as 9 old men who opposed Roosevelt's New Deal, presumably on policy grounds. But it seems more reasonable to interpret them as saying, "If you want this legislation, please use the amendment process."

Given the fact their is an explicit amendment process, Orin's position strikes me as making less sense than Randy's.
9.22.2009 1:34pm
Jon Roland (mail) (www):
Guesty:

The Constitution doesn't say anything about how it is interpreted. Under even the strictest interpretations, the constitution requires some interpretation and implementation.

Actually, in the Seventh Amendment it does: "according to the rules of the common law". Now admittedly that was in the context of reviewing jury verdicts, but it does indicate a commitment to a method of interpretation that was almost taken for granted at that time. That provides the hook for then investigating what the "rules of the common law" were for purposes of interpreting laws in general, and constitutions in particular.

Now, any message, whether it be a command from a lawgiver or a comment from your spouse, has to be "interpreted", which is just the mental process of assigning meanings to symbols, lacking which they would just be perceived as incomprehensible gibberish. However, that doesn't make it arbitrary or a matter of taste. Misinterpreting what your spouse is telling you could get you divorced or shot. Misinterpreting what a lawgiver meant can have similarly adverse consequences. Interpretation is a art, something that can be done well or badly, that can be learned if one has the aptitude for it, and if you don't have the aptitude you are in trouble.

How do we learn to accurately interpret anything said by others? If they are still around, we can ask them questions, and by their answers improve on our interpretations until we get to the point where we are assured we are "getting" their meanings without having to continually interrogate them. If they are no longer around, then it becomes more difficult. We have to turn to supporting evidence of other things they said under similar circumstances, to things they read or heard, and what people who knew them wrote or said.

The possibility of accurate communication is that most of a large population of people who honestly and competently go through this process of trying to understand will in fact tend to come to similar conclusions. If we have evidence that some of them are not honest or competent, we can disregard their interpretations.

As one of many who has made a sincere effort to understand the Constitution by investigating its historical background, and reached similar conclusions, I don't think the congruence of our findings should be dismissed as just the result of our policy preferences, especially when they were inconsistent with those policy preferences and we abandoned those policy preferences as a result.
9.22.2009 1:34pm
ChrisTS (mail):
Recovering Law Grad:

Is there a conservative out there who can clearly articulate what the difference is between being a "conservative" and being a "libertarian"?

I'm not a conservative in either the philosophical or U.S. politics sense; the latter sense is theoretically messay thanks to the historical realities of our politics.
However, libertarianism, for the most part, is described in its philsophical sense, so perhpas I can help.

Most generally, libertarians believe in minimal (underline that) government and maximum equal negative freedom [freedom from interference]. A thoroughgoing libertarianism would eschew public education, public transportation, etc, and limit the role of the state to police and other security operations.

Conservatives and liberals, of the many kinds, are all willing to give the state a larger role than a true libertarian; they do not fear the state, as such, but only in certain roles. In that respect, libertarians have more in common with anarchists than with either conservatives or liberals.
9.22.2009 1:35pm
ChrisTS (mail):
Make that 'messy,' not 'messay.'
9.22.2009 1:35pm
Cornet of Horse:
Joseph Slater,

"Does the opposing claim -- that Con law is what the "correct" interpretation is"

Whoa there, nelly. I don't think that Barnett is to that point, even if you're convinced that is where he wants to go. The question he's is addressing is whether one is required to consider the words at all, or whether we can ostracize people who suggest such as thing as "Tenthers", depending on which words it is that we'd want to consider.

As for "correct", I get the sense that what chafes there is some authoritarian vibe of the word itself. (I'd also note that Barnett himself never uses it, so again arguing with where one thinks Randy is heading rather than where he actually is.) But isn't the true authoritarian position the one that defers to the Court in toto to tell us what is correct, instead of venturing in there together, not as some atomized voices in the wilderness ("what Randy Barnett thinks") to come to some basic agreement, or at least to acknowledge what basic agreements already exist and have existed?

The ontological fact of some perfect universal (shared by all) interpretation is not a prerequisite for making the effort to find interpretations that offer transversal (shared by as many as we can get) appeal.
9.22.2009 1:42pm
Jon Roland (mail) (www):
Joseph Slater:

For those taking Prof. Barnett's side, apparently you don't like that approach in Con Law. Should I change my approach for labor law? If so, do you think my answers might confuse some people? Or is Con Law special? If so, why?

Yes, but it will require some explanation to avoid the confusion, and for that the law/legal practice distinction is useful. You can and should warn clients that a legal argument, although meritorious as a matter of "law", is unlikely to prevail because it conflicts with current "legal practice". Then the client can make an informed decision as to whether is is going to make an economic decision or a principled one, perhaps with a view to pushing for reform.

Lawyers should not presume their clients only want to make economic decisions. Perhaps most of them do want to do that. But some of them may not. That should be their choice, not yours, and if you join their crusade, be prepared for the consequences, like disbarment or other sanctions.

Recall the old saying, "Evil is cleaving to power instead of to principle." That includes making economic decisions.
9.22.2009 1:49pm
Cornet of Horse:
ChrisTS,

"A thoroughgoing libertarianism would eschew public education, public transportation, etc, and limit the role of the state to police and other security operations."

A thoroughgoing libertarianism also notes how statists steal this base by equating the public with the state (i.e. government). Power to the people, right on!

For instance, university education is organized along more libertarian lines than K-12 (more competition, freedom of choice) and serves the public much more effectively, as I believe that nearly all would agree.
9.22.2009 1:50pm
Crunchy Frog:
Paging Dr. Morgan, Dr. Fine, and Dr. Morgan...

Randy "Mel Brooks" Barnett - "The Lord God Jehovah has given me these 15," (crash), "10, 10 Ammendments to the Constitution."
9.22.2009 1:54pm
Cornet of Horse:
Off Kilter,

"Despite the voluminous discussion so far, I've seen nothing about the fact the Constitution--one one under glass in DC--has an explicit amendment process."

Sorry that you've missed my comments. Indeed, attempting to revivify the amendment process is my not-so-hidden agenda for supporting Prof. Barnett in where I believe he is heading, and not just it what he is arguing now.
9.22.2009 1:55pm
Guesty:
Jon,

Your post proves my point. You take one clause from the 7A about reviewing jury verdicts, and expand and extrapolate it to determine the exact meaning of every clause of the constitution.

You presume the "rules of the common law" applies to every clause; and further that the rules of the common law applies to a very specific set of interpretive principles, grounded and immutable in early 19th century thought.

Everything the court has done, including Wickard, Roe, Raich, etc., has been through the rules of the common law. You have to jump through some hoops to come to any principled definition that would support your theory.
9.22.2009 1:55pm
Joseph Slater (mail):
Cornet:

I dunno, I think implicit in the anti-Orin side here is the idea that there is a correct interpretation and that precedent ain't it. But let's take a weaker claim -- one with which I agree -- there are some meanings/interpretations the text permits and some it doesn't.

I'll repeat my question. I think there are some Supreme Court interpretations of the NLRA which the text does not, in fact, permit. But when people ask me what the law "is" in those areas, what should I say? What I think the correct interpretatio is? Or what the Supreme Court says it is?

Jon Roland:

When I was in practice, I would sometimes say I thought precedent was wrongly decided, and I understand about clients wishing to challenge the status quo.

But my question was, when I was asked what labor law "is" on a topic, whether it's incorrect to list the rules the Supreme Court has come up with, even if I think the Court got it wrong. Because I think in at least most cases, that's what my client was paying me to do. And I think that's the common meaning of "is."
9.22.2009 2:00pm
Jon Roland (mail) (www):
einhverfr (mail) (www):

If we accept common law as a part of our Constitution, then some of Randy's points go away.

No, because it is only nonconflicting parts of the American version of common law that were incorporated. Having a written constitution of government is in large part an attempt to overcome the shortcomings of the common law as it existed previously.

One of those "rules of the common law" that are inconsistent with the written Constitution is binding stare decisis. One that is consistent is "In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power."


It is very hard to ground a program like social security or medicare in interstate commerce powers. These however can be grounded in general welfare tax/spending powers much more easily.

Not if you apply that interpretive common law rule just cited, because those programs, and the proposed new ones, involve the intentional redistribution of wealth, which is in conflict with the restriction that spending be only for the general welfare (or common defense). The term "general" is one of those idioms of 1787 that is different from 2009 usage. It meant "for the whole, uniformly, and not for some parts over others". (We see that even in the evolution of the term "general" as a military rank, coming from "general officer" meaning for the whole armed force and not just for a subdivision of it.)
9.22.2009 2:03pm
ray_g:
Another, humorous illustration of libertarianism:

A "conservative" thinks someone, somewhere is having more fun than he his, and the government should put a stop to that;

A "liberal" thinks someone, somewhere is making more money than he his, and the government should put a stop to that;

A libertarian thinks both of these are none of the government's (or anyone else's) business.
9.22.2009 2:04pm
Careless:
Joseph Slater


I'll repeat my question. I think there are some Supreme Court interpretations of the NLRA which the text does not, in fact, permit. But when people ask me what the law "is" in those areas, what should I say? What I think the correct interpretatio is? Or what the Supreme Court says it is?

[IANAL disclaimer] This sounds like a much easier question when talking about what to tell clients than talking about legal theory, legislation, etc. If I've hired a lawyer (for anything but a tutoring position), I don't really care about things that are Constitutional but are ignored or aren't Constitutional and are enforced.
9.22.2009 2:06pm
Uh_Clem (mail):
Is there a conservative out there who can clearly articulate what the difference is between being a "conservative" and being a "libertarian"?

John Scalzi

Conservatives: Self-hating moral relativists, unless you can convince me that an intellectual class that publicly praises family values but privately engages in sodomy, coke and trophy wives is more aptly described in some other way. Not every conservative is an old wealthy white man on his third wife, but nearly every conservative aspires to be so, which is a real waste of money, youth, race and women.

Libertarians: All for legalized drugs and prostitution but probably wouldn’t want their kids blowing strangers for crack; all for slashing taxes for nearly every social service but don’t seem to understand why most people aren’t at all keen to trade in even the minimal safety net the US provides for 55-gallon barrels of beans and rice, a crossbow and a first-aid kit in the basement. Blissfully clueless that Libertarianism is just great as long as it doesn’t actually involve real live humans.

And for balance:

Liberals: The stupidest and weakest members of the political triumvirate,... Liberals champion the poor and the weak but do it in such condescendingly bureaucratic ways that the po’ illedumacated Cleti would rather eat their own shotguns than associate with the likes of them. Famously humorless and dour, probably because for a really good liberal, everything is political, and you just can’t joke about things like that
9.22.2009 2:06pm
Jon Roland (mail) (www):
MCM :


Those policy positions are commonly called "libertarian", but that is because the positions of the founders were.

Some of the Founders.

By today's standards practically all of them. I think Hamilton would be distressed by the opinion in Wickard v. Filburn.
9.22.2009 2:07pm
Careless:
[should read] I care about things that aren't Constitutional but are enforced
9.22.2009 2:07pm
Jeff Carson (mail):
So...

I suppose corporations do not have the rights of individuals since they are not articulated in the Constitution and the Supreme Court should overturn all precedent that gives them said rights under federal law?

I thought not...
9.22.2009 2:10pm
yankee (mail):
Is there a conservative out there who can clearly articulate what the difference is between being a "conservative" and being a "libertarian"?


I am neither a conservative nor a libertarian, and both are contested terms, but libertarians see a much smaller role for the state than conservatives do. Conservatives tend to support more powers for the police, a more aggressive and interventionist foreign policy, and much more economic regulation than libertarians do. Conservatives also tend to think the government should take a heavy-handed role in promoting/enforcing "traditional values" regarding sex and the family, while libertarians tend to eschew any such role.
9.22.2009 2:11pm
Chris 24601 (mail) (www):
On whether the Constitution has rules for its own interpretation, I think it does, though they are implicit in the phrase "this Constitution" and words like "now" and forms of "here" and "we"; the Constitution defines itself as a historically-embedded textual expression of meaning (as opposed to historic goals, or historic applications, or intergenerationally-authored common-law concepts, or expression of meaning at the time of interpretation).
9.22.2009 2:13pm
OrinKerr:
Nowhere does Orin mention the actual Constitution - the actual document with actual words. Only a "description" or a "constu[ction]" or a "vision". It appears to me that the difference between the approaches here is that Orin seems to believe that there isn't an actual Constitution (instead, there are only descriptions or constructions or visions), and Randy does.
This is sophistry. Of course there is an actual text of the Constitution; no one disagrees with that. The debate is on what that actual text means in practice. You can declare as loudly as you like that your vision of what that actual text means in practice is not merely an interpretation, but rather "the real Constitution." But that's a rhetorical point, not a jurisprudential one.

Case in point: As I understand it, many of Randy's views about what the Constitution forbids are based on natural law theory. They are entirely nontextual. The trick is that Randy interprets the 9th Amendment to mandate natural law theory, a view that very few people share. So is Randy simply following "the real Constitution" when he says that all laws inconsistent with natural law theory are unconstitutional?
9.22.2009 2:14pm
Joseph Slater (mail):
Careless:

But not every question about Constitutional Law is a question about theory. And there are many theoretical questions about labor (and every other area) of law.

Bottom line: I don't think the question about what Con law "is" is a theory question any more than a question about what labor law "is."
9.22.2009 2:21pm
yankee (mail):
This is sophistry. Of course there is an actual text of the Constitution; no one disagrees with that.

Doesn't Bruce Ackerman think that (in some sense) the Constitution is amended with no change to the written Constitution?
9.22.2009 2:25pm
Jon Roland (mail) (www):
Guesty:

You take one clause from the 7A about reviewing jury verdicts, and expand and extrapolate it to determine the exact meaning of every clause of the constitution.

That is not such a stretch, in that it was expected that almost all cases would begin with trials before a jury. The only problem is that the 7th was only about civil cases, not criminal, but from a study of the writings of the Founders and those that they read and respected, we can find they included criminal cases as well.


You presume the "rules of the common law" applies to every clause; and further that the rules of the common law applies to a very specific set of interpretive principles, grounded and immutable in early 19th century thought.

Yes, because the Constitution itself is frozen in time, with the meanings of its words at the time it was ratified. That includes any parts of the common law that it incorporated.


Everything the court has done, including Wickard, Roe, Raich, etc., has been through the rules of the common law. You have to jump through some hoops to come to any principled definition that would support your theory.

No, it hasn't been. Any rules developed by judges since 1788 are not part of the rules of the common law incorporated in the written Constitution. It may be a kind of "common law", but it is a different kind, and it contains much that is inconsistent with the nonconflicting parts of that 1788 common law that were incorporated.

A good example of such a modern rule is the "presumption of constitutionality". It is directly contradictory to the presumption of nonauthority that is the foundation for the Constitution.
9.22.2009 2:30pm
ShelbyC:
OK:

This is sophistry. Of course there is an actual text of the Constitution; no one disagrees with that. The debate is on what that actual text means in practice. You can declare as loudly as you like that your vision of what that actual text means in practice is not merely an interpretation, but rather "the real Constitution." But that's a rhetorical point, not a jurisprudential one.


That's not really true. Please correct me if I'm wrong, but I would imagine that exactly 0 individuals on the planet believe that the words in the 5th amendment "mean" that states have to suppress voluntary confessions obtained without Miranda warnings. And I can't imagine anyone arguing that there's a reasonable interpretation of the words in the 1st and 14th amendments that prevent states from displaying the 10 commandments or other acts of "establishment" that don't deprive anyone of life, liberty, or property and that don't violate any privliges or imunities.

The fact is, there's a large disparity between the text of the constitution and the growing body of caselaw, philosophy, and theory knows as "constitutional law" that's worth distinguishing and examining, and refering to the "real constitution" isn't an unreasonable way to do that.
9.22.2009 2:31pm
Jon Roland (mail) (www):
Joseph Slater:

But my question was, when I was asked what labor law "is" on a topic, whether it's incorrect to list the rules the Supreme Court has come up with, even if I think the Court got it wrong. Because I think in at least most cases, that's what my client was paying me to do. And I think that's the common meaning of "is."

By this time you should be starting to realize that just because the use of the word "is" is commonly used and abused, for purposes of legal and philosophic discourse we need to adopt clearer distinctions, such as law/legal practice.
9.22.2009 2:34pm
Off Kilter (mail):
Orin, IANAL but if your view is correct, how can it make sense for anyone, including great Constitutional scholars, to ever disagree after the fact with the rulings of the Court? Isn't it a rather primitive version of legal positivism to say the Constitution is "nothing more" than how the Supreme Court interprets it? If subsequent Court decisions reverse, as Plessy was reversed by Brown, does that mean the Constitution was changed--that it meant one thing before Brown but now without amendment means another thing after Brown?
9.22.2009 2:40pm
Guesty:
Jon,

If you aren't willing to concede that you must make a number of assumptions, deductions, and extrapolations to reach your proposed interpretation, I'm not willing to continue this conversation.

You could very well make a sound argument for why you are correct, but you absolutely are not making it from premises found in the Constitution.

Strict construction and textualism are extra-constitutional theories; there is nothing in the constitution that freezes it in time.
9.22.2009 2:41pm
martinned (mail) (www):
@Off Kilter: That is why it is better not to talk about the Constitution in absolute terms, as if its meaning were fixed and undisputable, like prof. Barnett did. (Except when it is, of course.)

You can disagree with a Court opinion because it states the reasons for the result it reaches. That means that a reader of the opinion can consider whether the stated reasons indeed do lead to the result in question. (Sure Mass v EPA implies that the plaintiffs have standing, but doesn't it also mean that various nuisance claims are overruled or pre-empted?)
9.22.2009 2:45pm
yankee (mail):
Yes, because the Constitution itself is frozen in time, with the meanings of its words at the time it was ratified. That includes any parts of the common law that it incorporated.

This bit about the common law seems bizarre to me. If it was to incorporate common law, why would that common law be frozen in time? Common law is not frozen in time as a general matter.
9.22.2009 2:46pm
martinned (mail) (www):

A good example of such a modern rule is the "presumption of constitutionality". It is directly contradictory to the presumption of nonauthority that is the foundation for the Constitution.

Actually, no it's not. What powers Congress (say) has is an entirely separate question from the question of who decides whether a given case crosses the line.
9.22.2009 2:47pm
Chris 24601 (mail) (www):
"[T]here is nothing in the constitution that freezes it in time"--what about the use of "now existing" in Art. I sec. 9 cl. 1 to refer to the Founding? A Constitution using temporal indexicals that way presupposes that it is spoken at the Founding, not intergenerationally. The Constitutional also distinguishes "ourselves" from "our posterity" in the Preamble, makes clear that the Article VII conventions are the ones that "establish this Constitution," and refers in Art. II sec. 1 cl. 5 to "the time of the Adoption of this Constitution," referring to the Founding.
9.22.2009 2:50pm
PubliusFL:
Joseph Slater: I don't think the question about what Con law "is" is a theory question any more than a question about what labor law "is."

My opinion (somewhat along the lines of what Jon Roland has been saying) is that the quotes should have been placed on "law" in this discussion rather than on "is" (v. "ought to be"). There are different kinds of law that have different implications. When it can make a difference to your client, it's best to be clear about what KIND of law you're talking about. In labor law, for example, if the client asks "what is the law on X?", the answer may well be "the NLRA doesn't technically require X but Supreme Court precedent does." Also, in constitutional law there are many areas of the Constitution that are not justiciable. The Supreme Court won't get into disputes regarding them. So what then if the Constitution "is" whatever Supreme Court precedent says it is?
9.22.2009 2:55pm
Andrew J. Lazarus (mail):
If Jon Roland's frozen-in-time interpretation were true, the Interstate Highway System would be one of a long list of surprising unconstitutional items.

However, what's really happening here is competing strains of interpretation all clamoring for superiority over the others by claiming authenticity from alleged fidelity to an earlier tradition. You have to stop and think for a minute to see that neither Modern Judaism (in any version) nor Christianity much resemble the Israelite religion of the Hebrew Scriptures. But for some historical reason, Rabbinic Judaism stressed continuity with Israelite tradition while Christianity stressed its discontinuity.

Internal evidence that the Founders viewed the Constitution as some sort of Scripture is weak.
9.22.2009 2:55pm
Jon Roland (mail) (www):
Guesty:

You could very well make a sound argument for why you are correct, but you absolutely are not making it from premises found in the Constitution.

Strict construction and textualism are extra-constitutional theories; there is nothing in the constitution that freezes it in time.

Of course not. The Constitution is not a complete set of premises. The discussions surrounding its development and ratification make it clear that we have to look to the historical and linguistic background for that, as we have to do for any law. A law like the Constitution is the culmination of a historical process, just as the ruling in a court case is a culmination of a judicial process involving evidence, argument, deliberation, and perhaps political pressure. You don't look for all the premises in a law any more than you look for all of the premises in a court order.

As for freezing it in time, it most certainly is:


We the People of the United States, ... do ordain and establish this Constitution for the United States of America.

and

done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven

Finally, in Art. V which provides for only certain ways of amending it that do not include judicial precedents.
9.22.2009 2:59pm
Jon Roland (mail) (www):
yankee:

If it was to incorporate common law, why would that common law be frozen in time?

Because otherwise it would allow judges to amend the Constitution in a way that is not among the methods specified in Art. V.
9.22.2009 3:01pm
Jon Roland (mail) (www):
martinned:

A good example of such a modern rule is the "presumption of constitutionality". It is directly contradictory to the presumption of nonauthority that is the foundation for the Constitution.

Actually, no it's not. What powers Congress (say) has is an entirely separate question from the question of who decides whether a given case crosses the line.

Nonsense and sophistry. Just because a court doesn't have the jurisdiction to order officials of another branch to do something doesn't mean that it has to cooperate or support their departures from constitutional compliance, which has usually been what the courts have been doing when they invoke a doctrine like "presumption of constitutionality".
9.22.2009 3:08pm
martinned (mail) (www):

Finally, in Art. V which provides for only certain ways of amending it that do not include judicial precedents.

I think it is disingeneous to say that if a consistent mentod of interpretation leads to a different result at a different point in time, there has been an amendment. In fact, that appears to be a case of begging the question.

Just because the constitution on its face forbids a whole stack of things (say, a 30 year old president), doesn't mean it doesn't authorise a consistent body of case law for dealing with the more subtle interpretation problem. That means a system akin to the common law, with many of the same rules. Just like the House of Lords, the Supreme Court sometimes overrules its prior precedent, but that is not the same thing as an amendment.
9.22.2009 3:08pm
martinned (mail) (www):

Nonsense and sophistry. Just because a court doesn't have the jurisdiction to order officials of another branch to do something doesn't mean that it has to cooperate or support their departures from constitutional compliance, which has usually been what the courts have been doing when they invoke a doctrine like "presumption of constitutionality".

You're the one adopting John Marshall's verdict that it is emphatically the task of the judicial branch to say what the law is. Given that rule, you are right.

But one might equally surmise that the founding fathers considered it the duty of all honourable men, including all members of congress and executive branch officials, to keep an eye on the constitutional limitations on their offices and powers. Combining that with the principle of three equal branches of government might well produce a greater amount of deferrence to Congress's own opinion about the appropriate interpretation of art. I, along the lines of Chevron deferrence, without coming into conflict with the principle of conferred powers.
9.22.2009 3:11pm
Chris Newman (mail):
Here's why I think insisting on talking about what the constitution "is" is a jurisprudential, not merely a rhetorical move. It means you are starting from the premise that the text of the document has a circumscribed meaning, and that while this meaning is assuredly underdetermined with regard to many of the difficult issues courts have to answer, it is not simply up for grabs. There are methods of construction that are objectively more legitimate than others. Obviously, someone making such a claim has to offer an argument for it, as Randy is more than willing to do--he is not, contrary to the implication of your caricature, simply demanding that people accept his interpretation based on some sort of faith. By denying that it is meaningful (other than rhetorically) to talk about what the Constitution "is," you are already making the most fundamental jurisprudential move of all. Either way, we all have to argue about the proper meaning of the constitution. But there is a non trivial difference between an argument in which people agree that there are objective standards governing the matter under discussion and an argument in which the only possible arbiters are preferences plus power.
9.22.2009 3:12pm
Jon Roland (mail) (www):
Andrew J. Lazarus:

If Jon Roland's frozen-in-time interpretation were true, the Interstate Highway System would be one of a long list of surprising unconstitutional items.

It was justified by its sponsors as a "defense expenditure", to facilitate the movement of troops and materiel. It's official name is "National Defense Highway System".
9.22.2009 3:15pm
Sara:
I don't follow, Chris 24601. How do you ordain a constitution for your posterity if its not meant to be intergenerational, too?

When they use "now" or "at the time of adoption," once each, according to you. Then a reasonable interpretation is they didn't limit the rest to "now" or "at the time."
9.22.2009 3:18pm
Jon Roland (mail) (www):
martinned:

I think it is disingeneous to say that if a consistent mentod of interpretation leads to a different result at a different point in time, there has been an amendment.

I agree, which is why I testified before the Texas State Board of Education against acceptance of a textbook that had been teaching, since 1950 (!!), that "informal amendments" were just as valid as formal ones. I provided editorial revisions to correct that, which the publisher was willing to accept, but the author wasn't, until he agreed to the changes with only ten minutes before the Board would have rejected it.

There are a lot is disingenuous players in this game.
9.22.2009 3:25pm
Jon Roland (mail) (www):
martinned:

You're the one adopting John Marshall's verdict that it is emphatically the task of the judicial branch to say what the law is. Given that rule, you are right.

Neither Marshall nor I am saying it is the task of only the judicial branch. It is the duty of all citizens of a constitutional republic in any legal matter that comes before them.
9.22.2009 3:28pm
martinned (mail) (www):
@Jon Roland: Doesn't it follow from your "originalism on steroids" that such a "different result at a different point in time" should never happen?

BTW, kudos to prof. Barnett for responding to prof. Kerr's Mozes reference with a Dawkins reference!
9.22.2009 3:29pm
martinned (mail) (www):

Neither Marshall nor I am saying it is the task of only the judicial branch. It is the duty of all citizens of a constitutional republic in any legal matter that comes before them.

Then why should the judiciary win if it and Congress disagree about the limits the constitution sets for Congress? After all, you're arguing that if the judiciary doesn't win in that case, for example because there is a principle of presumption of constitutionality being applied, the principle of conferred powers is dead.
9.22.2009 3:31pm
Jon Roland (mail) (www):
martinned:

@Jon Roland: Doesn't it follow from your "originalism on steroids" that such a "different result at a different point in time" should never happen?

For some results but not others. The Constitution itself allows for applications of law to facts and for equity decisions, which may be constrained by provisions of the Constitution, or the lack thereof, but the Constitution does not try to specify the conclusions of law for all kinds of cases. For example, it says the obligations of contracts should not be impaired, but otherwise is silent on how to determine what those obligations might be.

But when we have a decision like Wickard, that is exceeding the bounds of reasonable discretion. It is calling a ball in that is out not just by an inch but by a mile.
9.22.2009 3:38pm
Jon Roland (mail) (www):
martinned:

Then why should the judiciary win if it and Congress disagree about the limits the constitution sets for Congress? After all, you're arguing that if the judiciary doesn't win in that case, for example because there is a principle of presumption of constitutionality being applied, the principle of conferred powers is dead.

It is not "the judiciary" that "wins", but the parties before the court, when Congress passes a law, enforced by an executive branch official, and when it gets to court, the court refuses to go along with the prosecution and rule against the parties. It is not ordering Congress to remove that statute from the statute books, or the Executive Branch officials not to prosecute any more such cases. It is just saying that when it comes to them, the prosecution dies.

The genius of the multi-branch system is that it requires the cooperation of all three branches to finally infringe on someone's constitutional rights. Any one of them can block it. The duty of the courts is to do that for any official acts found unconstitutional. It may take more than one such decision to discourage the other branches from violating the Constitution, but they have their duty to do their part, even if the others fail to do so.
9.22.2009 3:46pm
Cornet of Horse:
OK,

"You can declare as loudly as you like that your vision of what that actual text means in practice is not merely an interpretation, but rather "the real Constitution.""

Is that was he is indeed declaring, though? I can see where text and interpretation are inexorably intertwined, but not text and personal interpretation incommensurate with other personal interpretations, which seems to be where you've leapt.

In other words, Randy's not talking about the validity of Randy's view, but the validity of views (of the constitutional text apart from the Magisterium of the Court*) in general. I don't think he's disingenuous in doing so, as opposed to desperately defending a premise on which all of his views depend. In our zeal to contest those views, we should take care that that premise is not one upon which our own views depend as well.

* - this debate has more than a little resonance with similar ones from the Reformation, hence the phrase.


J. Slater,

"I'll repeat my question. I think there are some Supreme Court interpretations of the NLRA which the text does not, in fact, permit. But when people ask me what the law "is" in those areas, what should I say? What I think the correct interpretatio is? Or what the Supreme Court says it is?"

I'd think the best answer might have some different features in 1934 than in 2009. Also depends on which "people" you're talking about. If it's a client on a specific case, that's a different question than an electorate considering major modifications of the law.

But the question before us now is not what the law is on Health Care Reform, but whether current proposals are constitutional, which should turn one's attention, at least to some extent, to the constitution itself. Common usage would indicate that we do so by googling the document up rather than waiting for a judge to tell us what it says.
9.22.2009 3:49pm
Chris 24601 (mail) (www):
Sara: "How do you ordain a constitution for your posterity if its not meant to be intergenerational, too?" The Constitution operates intergenerationally--succeeding generations take the Article VI oath (see here at 1644-47)--but it isn't adopted or authored intergenerationally. The "We the People" who "ordain and establish this Constitution" are located at the Founding, and the distinction between "ourselves" and "our posterity" makes that clear.

Using terms like "now" (I/9/1) or "the time of the adoption of this Constitution" (II/1/5) are important not because they tell us what the clauses mean, but for what they presuppose. It is obvious from context that (a) Congress could prohibit the importation of slaves into Tennessee and Kentucky, even before 1808, and (b) that Arnold Schwarzenegger can't be president, even though he's a citizen today. If we read the Constitution as adopted intergenerationally, or re-adopted each moment, those wouldn't make sense. II/1/5 assumes that there is a single time at which "this Constitution"--i.e., all of it--is adopted. Article VII says that the ratifying conventions are "sufficient for the Establishment of this Constitution"--the whole thing, not just Article VII. There is absolutely no reason at all to think that I/9/1 had a temporally-different author from the rest of the Constitution.

Put it this way--imagine we have a dispute over the authorship of a book; you say it's A and I say it's B. Then I find a part of the book where the author refers to "me," and we can tell from context that it's got to refer to B. Absent reason to think the book has divided authorship, it wouldn't make sense to say, "Well, maybe B wrote the part where 'me' refers to B, but A wrote the rest of it." Likewise, absent a reason to think we have multiple constitutional authors, "now" shows not just that the author of I/9/1 is temporally confined to the Founding, but that the author of the whole Constitution is.
9.22.2009 3:51pm
egd:
Recovering Law Grad:

Is there a conservative out there who can clearly articulate what the difference is between being a "conservative" and being a "libertarian"?

Sure. But it's also necessary to distinguish "totalitarianism" and "liberalism", which form the other two corners of the framework.

Totalitarianism &libertarianism are opposites. Totalitarians favor the state as a strong force, directing the social, economic and political decisions of individuals. To a totalitarian, economic forces exist to benefit society (through its guise as Government). An extreme would be the totalitarian elements of Nazism, Fascism, and Communism.

Libertarians want small government, one which will not interfere in the social, economic or political decisions of individuals. Libertarians believe Government exists only so much as it protects individual actions. At the extreme would be Anarchists, who believe that any government necessarily infringes on the freedom of individuals to act in their own interests.

Liberals and Conservatives are also opposite forces. They differ on the human spirit and actions resulting from the human spirit.

Liberals take the position that human beings are inherently good, or alternatively that there is no objective basis for goodness and therefore any human action is by definition "good" (as only "insane" people would do evil). Therefore, a classical liberal would oppose any social rules, because they only seek to inhibit the natural tendencies of an individual and conform him to society. An extreme example here would be the Hippy culture of the '60s.

Conservatives take the position that human decisions are inherently wrong, or at least disruptive to society. If all we did was eat, sleep, and have sex, our society would never have been built. It took moral laws to shape society, and so we should adhere to these moral laws. An extreme example would be areas that strictly adhere to historical moral concepts, Amish and some Islamic traditions.

Modern Conservatives tend to define themselves as balanced between Libertarians (small government) and Conservatives (social order). Government should impose laws which preserve social order - protect life (abortion), traditional family structure (gay marriage, divorce), children (anti-pornography) and the social order in general (drugs). But Government should also be minimally intrusive.

Modern Libertarians are more balanced between Liberalism and Libertarianism. Government needs to be as small as possible to protect us from each other, and not seek to impose morality on society.

Modern Progressives differ from Libertarians only in that they are more totalitarian, they want government to control the economy and provide for societal benefit.

I don't think there's a mainstream equivalent on the totalitarian side for Conservatives. Except for individuals like Fred Phelps, most people who favor government as an economic controller are pro-abortion and pro-gay marriage. Maybe the Blue Dog Democrats would fit into this mold.

I'm sure people will disagree vehemently with this.
9.22.2009 3:57pm
lk (mail):
How 'bout calling the written/ratified constitution, "the constitution," and what the Court says about the constitution, "precedent" or "Supreme Court precedent."

I don't think this has to be that hard.
9.22.2009 4:15pm
Andrew J. Lazarus (mail):
Congress's power to construct interstate highways was confirmed earlier than 1907 (see Wilson v Shaw). Not surprisingly, the technological change of the invention of the automobile, and before that, the locomotive, required a non-frozen reading of the Constitution.

Interestingly enough, I don't think there was any agreement among the Founders that the Constitution was to be exegeted like a Koran. The ensuing paradox is left as an exercise to the reader.
9.22.2009 4:34pm
Leo Marvin (mail):
Maybe I'm missing the trees for the forest, but I read Orin as simply pointing out that people are talking past each other because the tangle of conflicting normative and descriptive assumptions we make for "Constitutional" hides nicely in our ideological blind spots. This comment thread seems to make his point. The only norm I see him advocating is that we establish common meanings for terms we use in debate. I don't see him as taking any position on what "Constitutional" or any other term ought to mean.
9.22.2009 4:53pm
Sara:
We the people now an in the future . . .

"but it isn't adopted or authored intergenerationally."

So? They intended for us to live under it. Which means we they intended for us to understand it. The founders set up a whole branch with the authority to say what the law is, for posterity. And they did so by using the most conservative, yet not fixed, method they knew, the common law. The alternatives are the pure fantasy that anyone today can see our world as a 17th century person would or the argument that the whole thing is useless.

Your unspoken presuppositions are useless. If they meant that a free people, through its government can and cannot do things then they were as clear as they could be but they didn't bind us to thier unwritten words and thoughts.
9.22.2009 5:06pm
Cornet of Horse:
LM,

"The only norm I see him advocating is that we establish common meanings for terms we use in debate."

Opening one's post by declaring that he doesn't care about common meanings is a strange way to advocate for them.
9.22.2009 5:17pm
Anderson (mail):
Prof. B's new post* expresses astonishment that Prof. Kerr can think that the Constitution means what 5 or more justices take it to mean on any given occasion.

That does sound silly, if we imagine the justices as monkeys banging typewriter keys.

However, if our society knows that written laws must be interpreted; if we know that interpretations can vary; and if we know that, however subject to interpretation, the Constitution must be deemed to mean "x" if it's to have any function ...

... then I can see where we would create an institution of wise old lawyers, selected perhaps by the President and approved by, say, the Senate, to serve as the pragmatic "last word" on what the Constitution means.

We might argue whether the majority of these "justices" got it right on any given occasion, but we would recognize the importance of an authoritative interpretation, and we would get used to the idea that, for all practical purposes, the Constitution means what these people say it means. So that, if we thought they erred, we would either work to change their mind the next time the issue arose, or else we would seek to amend the Constitution to expressly correct their mistake.

Practical, real-world people might arrive at such a solution, and not be terribly concerned by law professors or other philosophers who cry, "but the Constitution DOESN'T SAY THAT."
9.22.2009 5:21pm
Anderson (mail):
Oops, forgot my footnote:

___________________
* "Libertarian who doesn't open comment threads on his posts" is surely one of the more fascinating subspecies of libertarian.
9.22.2009 5:23pm
Anderson (mail):
Btw, this --

Opinions All the Way Down?

-- is another indicator of Barnett's fundamentalism, which is an interpretive strategy motivated precisely by the fear of interpretation. "Somewhere, beneath these interpretations, there must be facts!"

Cf. Nietzsche, Beyond Good and Evil, sec. 38, speaking of the French Revolution:

its noble and inspired spectators throughout Europe have been projecting their own rebellious and enthusiastic feelings onto it from afar for so long and with such passion that the text has disappeared underneath the interpretation. A noble posterity might one day misunderstand all of past history in a similar way, and only in so doing make the sight of it bearable.

Or rather: hasn't this already happened? Haven't we ourselves been this "noble posterity"? And since we now recognize what we have been doing, can't we -- stop it?

... For those unfamiliar w/ Nietzsche, the rhetorical question's answer is "of course not."

I realize that citing Nietzsche in support of X is enough for some people, usually not his readers, to decide that not-X must be correct; but the debate b/t Kerr and Barnett here has exemplified the kind of thing Nietzsche was talking about.
9.22.2009 5:56pm
Leo Marvin (mail):
Cornet of Horse,

"The only norm I see him advocating is that we establish
common meanings for terms we use in debate."

Opening one's post by declaring that he doesn't care about common meanings is a strange way to advocate for them.

Please show me where he said that. Here's how he opened the post:

I really don't care whether we label what the Supreme Court says as what the Constitution "is," or whether we use that label for what Randy Barnett thinks, or what Pam Karlan or anyone else thinks. My first post noted the common convention of referring to what the Supreme Court has said as what the Constitution "is," but that is just a convention: I pointed it out only to avoid the confusion that results when we mix conventions without saying so.

He's just abstaining from choosing one of the competing understandings. I did go too far in saying he advocates for a common meaning. He doesn't say that. But he's clearly critical of the confusion caused by the multiplicity of meanings, while neither opting for nor rejecting any of those meanings in particular.
9.22.2009 5:59pm
Hoya:
Orin wants to keep himself above the fray by holding that those that take their own readings of the Constitution to be authoritative are making rhetorical rather than jurisprudential moves. But I don't see why that move does not bite back. His view entails that there is no such thing, I suppose, as massive jurisprudential error. That itself can be dismissed as a rhetorical move against fundamental criticism of widespread trends in constitutional interpretation. I think that Orin can't reasonably criticize Randy from that meta-level -- he has to explain what is wrong with each of these particular accounts of what the real Constitution requires, rather than just wave his hands at all such attempts.
9.22.2009 6:36pm
Leo Marvin (mail):
Cornet (Des),

Orin's latest post confirms my understanding. Had I seen it before posting, I'd have referred you straight to it:

I fear Randy is having a hard time operationalizing my conception of constitutionality because I am not offering a conception of constitutionality to operationalize. My primary concern is clarity, not constitutional theory. I want to make sure that we're using language in a clear way, not advocate a specific constitutional vision.
9.22.2009 7:16pm
OrinKerr:
Orin wants to keep himself above the fray by holding that those that take their own readings of the Constitution to be authoritative are making rhetorical rather than jurisprudential moves. But I don't see why that move does not bite back. His view entails that there is no such thing, I suppose, as massive jurisprudential error.

I do not see how my view entails that. Perhaps you could explain?

I think that Orin can't reasonably criticize Randy from that meta-level -- he has to explain what is wrong with each of these particular accounts of what the real Constitution requires, rather than just wave his hands at all such attempts.

Why? I am not making an argument about normative theory: Why would that compel me to explain why each view is wrong as a matter of normative theory?
9.22.2009 7:29pm
Cornet of Horse:
Well, I, for one, am glad that it wasn't Orin Kerr whom God entrusted with those troublesome tablets.

;-)
9.22.2009 8:48pm
Chris 24601 (mail) (www):
Sara: "We the people now and in the future"

That's precisely not how the Preamble begins.

"'but it isn't adopted or authored intergenerationally.' So? They intended for us to live under it. Which means we they intended for us to understand it."

For one thing, if the Constitution isn't adopted by an intergenerational actor, then Jed Rubenfeld--probably the most sophisticated advocate of the common-law constitution--is just wrong. See here at 1635-36, 1657-62.

"The founders set up a whole branch with the authority to say what the law is, for posterity. And they did so by using the most conservative, yet not fixed, method they knew, the common law."

The Founders didn't set up the Constitution using the method of the common law--they used the method of Article VII. Why think they adopted a common-law method of interpretation?

"The alternatives are the pure fantasy that anyone today can see our world as a 17th century person would or the argument that the whole thing is useless."

We don't have to see the world exactly as the Framers did, but to the extent we're attempting to construe "this Constitution" of Article VI, we are bound by the meaning expressed in their words at the time they were composed. That doesn't mean we're bound by the applications they intended or expected. See here.

"Your unspoken presuppositions are useless. If they meant that a free people, through its government can and cannot do things then they were as clear as they could be but they didn't bind us to their unwritten words and thoughts."

The Framers' (relatively-easy-to-decipher) presuppositions are important because they tell us what "this Constitution" means, and that's binding on anyone who takes an Article VI oath.
9.22.2009 8:49pm
steverino:
Perhaps we can begin by determining what a constitution does?

A constitution constrains government.

For instance, I've had numerous exchanges with people who believe that the health care mandates and fines are constitutional because the Constitution gives Congress the power to tax.

Hello! You don't need a constitution to grant a government the power to tax. All governments know how to do that. That's simply a power that grows out of the barrel of a gun. As a matter of fact, if you go back far enough in history that was the sole purpose of government. You subjugated people and conquered territory in order to rule and enrich yourself. Government was simply the mechanism by which rulers kept the people in line and collected the booty.

The course of history since then has been a search for means to rein rapacious, greedy rulers. To limit their power to tax.

Unfortunately, now we've gone full circle by putting the Chicago machine in the White House. I can remember Mayor Daley when he was confronted about using the power of his office to direct business to his family famously ask what was the point of being in politics if you couldn't help out your family.

That's why I find the idea of a progressive Constitution (and Obama's) an oxymoron. Because a progressive constitution is one which empowers the government, which must act in the name of the people. I would say "must act on your behalf" as Obama put it, when he lamented the Warren court didn't break free from the fundamental constraints of the Constitution, but that isn't accurate. Because what's really going on is the government is harming some individuals for the sake of another group of individuals.

Of course, these mandates involve taking money and/or other property from some in order, they say, to benefit everyone.

But when we look at countries that have such "progressive" constitutions, the government is just as good at taking things from people as they have been since the dawn of time. Providing benefits to anyone except the ruling class, though? Not so good.

Example: Cuba. A progressive darling. The ruling class lives very well. But we are told they have universal health care that is superior to our own, we are told, so I suppose the ruling class deserves the perks for the great service they've performed on behalf of the workers.

Except Cuba is one of the most vulnerable nations, according to the UN, in the western hemisphere to the swine flu pandemic and will need just as much help from first world nations to save it as Haiti.

So, since the dawn of time rulers have needed no written document to justify empowering themselves. And the idea of a constitution that empowers government for some lofty "progressive" purpose simply papers over the fact that the rulers still are empowering themselves to enrich themselves and to a lesser extent whatever base it needs to remain in power. It's really just a dodge to justify the looting. Ask anyone, at least anyone who was an ordinary subject, of the old Soviet Union.

The only possible use a constitution can have is to constrain government. After that, we can argue how much or how little, or for what purpose.
9.22.2009 8:52pm
ReaderY:
I really don't see what the fuss is about here. Long before the New Deal jurisprudence, the Supreme Court held that it won't look behind a tax to see if it is really an attempt to regulate or a fine for disfavored behavor in disguise -- so long as it's called a tax, the courts will treat it as a tax. So if New York State wants to have a a tax on yellow-colored margerine that doesn't apply to uncolored margarine, that's fine and it simply doesn't matter if the purpose of the tax is to discourage colored margarine and hence to protect the dairy industry. A tax is a tax. So long as it raises revenue, whatever else it might do is none of the courts' business.

So as long as Congress calls a tax on the incomes of people who don't have health insurance a tax, why should the courts treat the matter any differently?

Why all this talk about "fines" and "regulation?" There's no fine or regulation of any sort being proposed. Just a tax on incomes. Why in the world can anyone say Congress doesn't have power to tax incomes?
9.22.2009 9:36pm
Cornet of Horse:
Anderson,

From #438:

"For, first of all, some people must be allowed (now, more than ever) to keep out of politics and stand aside a little; the pleasure of self-determination is driving these people, too, and there may even be a little pride involved in being silent when too many-or only many-are speaking. Second, one must overlook it if these few do not take the happiness of the many (whether defined as peoples, or classes of population) so seriously, and are now and then guilty of an ironic attitude; for them, seriousness lies elsewhere; they have a different concept of happiness; their goal cannot be embraced by any clumsy hand with just five fingers. Finally (and certainly this is hardest to grant them, but must also be granted), they too have an occasional moment when they emerge from their silent isolation and try the power of their lungs again; then they call to each other, like men lost in a forest, to make themselves known and encourage each other; of course, when they do, various things are heard that sound bad to ears not meant to hear them.

Soon afterwards, it is quiet in the forest again, so quiet that one can again hear clearly the buzzing, humming, and fluttering -of the innumerable insects that live in, above, and below it."

Make of this what you will...
9.22.2009 10:01pm
steverino:

Why all this talk about "fines" and "regulation?" There's no fine or regulation of any sort being proposed. Just a tax on incomes. Why in the world can anyone say Congress doesn't have power to tax incomes?


There's aren't any fines or regulations in the health care reform act? You actually believe that several thousand pages of legislation contains no fines or regulations?

OK.

In any case it isn't an income tax.

They are forcing you to buy a commercial product.

And they are taxing you if you haven't bought the product or the IRS determines the product you bought didn't meet specification at any point during the tax year.

In what universe is that an income tax?

And besides, I was talking about what is or isn't a Constitution. What isn't a constitution is something that empowers government. Because they do that quite well on their own.

Although I do understand that has an appeal to some folks.

Apparently the Constitution gives Congress the authority to tax anything, anytime, anywhere.

I'm sure glad the founders fought a revolution for that.

It isn't like you could have the same sort of right to be secure in your property in Cuba or Zimbabwe, isn't it?
9.22.2009 10:33pm
steverino:
I really don't see what the fuss is about here. Long before the New Deal jurisprudence, the Supreme Court held that it won't look behind a tax to see . . .


Reader Y,

My last response was a little unclear. What the Supreme Court has held is precisely the problem. It, just as much as any other branch, has enabled the Federal government to break free of the constraints of the Constitution. And what we have instead of a government of enumerated powers is a government of unenumerated powers.

Which is the heart of my argument. A constitution constrains government. Governments hate to be constrained.

You're talking about what the Supreme Court has held.

I agree.

I'm saying that would be impossible if the Constitution was actually a limit on government, instead of whatever the Supreme Court holds it to be.

In any case, I look forward to you arguing the constitutionality of Congress using the Commerce Clause to require you to purchase all sorts of things, using the power of taxation to enforce that requirement. I'm sure that also would be an effective economic stimulus, and really, wouldn't that be necessary and proper?

Then we can all sit around the BBQ on the 4th and talk about how wonderfully free we are.
9.22.2009 10:58pm

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