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Conceptions of Constitutionality -- More Thoughts In Reply to Randy:
I appreciate Randy's clarification below. Where we differ, I think, is that Randy believes that we need a correct conception of what it means to say something is "constitutional" that we should use even with people who disagree with it. Randy acknowledges that his personal views of the Constitution need not be used, but he argues that, as a normative matter, views should be based on the written Constitution. That is the correct conception, so it is the one that should be used. He concludes:
  I am still not sure on what you think opinions about "constitutionality" should rest, except perhaps on predictions on what the Supreme Court will do in the future. Maybe these questions will illustrate how this in not a mere semantic or rhetorical move: In a case of first impression--arguably like Heller--how would you make a constitutional argument based on your prediction of the votes of five justices? What should we have argued in Raich? Should the SG have based his constitutional argument on your predictive assumption about the votes of five justices in cases in which "federalism matters"?
  Frankly, I am having a hard time operationalizing your conception of constitutionality based on what you predict the Court will do in a particular case.
  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.

  As for what lawyers should do when representing clients in court, they should do in constitutional cases what lawyers always should do: They should make the arguments that they think will persuade a majority of the court to rule in their favor. Exactly what those arguments are depends on the case, of course. Sometimes the arguments most likely to persuade a majority will rely on precedent, sometimes history, sometimes function, and sometimes text. Often a mix of most or all of the above is the best; it just depends on the case. But again, this isn't a question of constitutional theory. It's just a question of maximizing the chances you will win.

  Some may conclude that my approach is empty. As you might guess, I disagree. The reason is that you can believe strongly in a particular way to interpret the Constitution while recognizing your view is controversial or not widely shared. And I think the fact that it's controversial or not widely shared imposes a duty of candor when speaking with those who look at it differently. So you can have your views; hold them passionately; believe that you are right and that everybody else in the universe is wrong. But I think it's most fair to be candid that you have your view and others disagree: Embedding normative views in loaded terms like "the real Constitution" seems to me to shed more heat than light.

  I don't think this imposes such a serious burden. If someone asks you if X is constitutional, you can simply say, "Under existing law, yes, although I believe that's wrong." I think this is the most informative kind of answer.
Bruce:
Orin, my hopes for you to host a cable news show have just been dashed.
9.22.2009 5:35pm
Another realist:
Continuing forward from the previous threads... I'm wondering if we could please get a quick straw poll from the commentariat.

Bank of the United States: constitutional or not?

Louisiana purchase: constitutional or not?

Cherokee removal: constitutional or not?
9.22.2009 5:36pm
marksleen (mail):
Why are we only focusing on the legal as opposed to political notion of constitutionality. Last I read, there are three branches. Just because the Court says something is constitutional, does not mean that Congress or the President have to agree. The Court has the final word when something is unconstitutional, but Congress can refuse to pass a law that the Court would find constitutional and can do so because the members of Congress independently believe the law is unconstitutional. The President can make the same determination. So, even if the Court would find healthcare reform constitutional, that does remove the constitutionality argument from the debate. It just places it in the political sphere.
9.22.2009 5:43pm
Sara:
ANOTHER,

In addition:

Legal tender paper money: Constitutional or not?
9.22.2009 5:55pm
ShelbyC:

The Court has the final word when something is unconstitutional


Not "the Court", but basically whichever court congress decides. And since the President has to interpret Supreme Court decisions in order to enforce them, I guess those mean whatever he decides they mean.
9.22.2009 5:56pm
Off Kilter (mail):
Orin: Imagine you are not a lawyer in front of the Supreme Court making whatever argument you think most beneficial to your client. Instead imagine you are writing a series of articles on settled Supreme Court decisions for a law journal.

In article one you claim "Plessy was wrongly decided for the following reasons based on what the Constitution says--what reasonable interpretation of the document says."

In article two you claim "Brown was wrongly decided for the following reasons based on what the Constitution says--what reasonable interpretation of the document says."

Given your great writing skills, both articles are accepted for publication despite the fact your argument in the second article clearly and materially contradicts your argument in the first article.

Now when lawyers argue two different sides of similar cases, that's simple advocacy. Everyone understands this.

But when you're arguing what a specific document means, it does not do to argue it means one thing in one article and a totally opposite thing in a different article. I take Barnett as arguing one needs a coherent theory of Constitutional interpretation to properly critique the Supreme Court, and that such theories are possible to construct. I take your view as this is all just a difference of opinion.
9.22.2009 5:57pm
alkali (mail):
Further to Prof. Barnett's comment, which is addressed in Prof. Kerr's comment above:

Frankly, I am having a hard time operationalizing your conception of constitutionality based on what you predict the Court will do in a particular case.

If we operationalized a notion of "law" based on predictions of what courts or other official bodies would do in a particular case, I am guessing that people who wanted to know what the law was would end up paying enormous sums to self-styled legal "professionals" (who had passed through dubiously-designed educational regimens, no doubt) to provide extremely hedged advice on those questions. I pray that this nightmare scenario never comes to pass.
9.22.2009 6:05pm
OrinKerr:
Off Kilter,

You take it incorrectly, unfortunately.
9.22.2009 6:09pm
mls (www):
There is an additional level of complexity that must be considered when we are asking whether something is constitutional. The fact that the Supreme Court will uphold an act of Congress does not necessarily mean that the act is constitutional, or even that the Supreme Court thinks that it is constitutional. It merely means that the act passes the test that the court has constructed to identify the line where judicial intervention is permissible. There is nothing that says that other constitutional actors should or must use the same line to determine constitutionality.
9.22.2009 6:10pm
CheckEnclosed (mail):
I'm with marksleen (if I read him correctly). The Constitution and the idea of constitutionality are important to Amercian politics. Whether proposed legislation is constituional ought to be, and often must be, considered without knowledge of how that issue might come before the Supreme Court, or what the composition of the Supreme Court might be at that time.

The Constitution itself plays an important role in establishing the legitimacy of the United States Government and its laws. The laws derive legitimacy from their conformity with the Constitution. The Constitution derives its legitimacy from ... what? To a large extent, it derives legitimacy from widespread appreciation of the very great talents and abilities of individuals involved in formulating it ("Founders" or "Framers"), and belief that they did not act from corrupt motives, from its adoption by the states, from the history of its protection and enforcement, and from the relatively few changes made to it over a long time.

To preserve that shared view of legitimacy, the courts, including the Supreme Court, inform their decisions not by taking polls, but nevertheless within the context of public political discussion and understanding of what the Constitution says and means. A Constitution that only reflects the passing views of five out of nine justices will not long maintain the mantle of legitimacy that, once lost, could hardly be cobbled together.

Since the Supreme Court does not act in a vacuum, the makers of political discussion and understanding of the Constitution, namely the people and the elected branches of government, need to be able to talk about what the Constitution means based on sumething other than a prediction of how the Supreme Court will rule.

How an advocate ought to argue to persuade judges about propositions of consitutional law; or how professors ought to teach and explain the subject are different matters, to be governed by different rules. Nevertheless, it seems that for an advocate struggling with an issue bedeviled by conflicting cases and doctrines, a deep understanding of fundamental principles may provide a better trail through the thicket than mere emphasis on what judges have said.
9.22.2009 6:25pm
tvk:
Well said, but I offer a friendly amendment. The duty of candor is not so much to those who might disagree with you, since those people presumably are lawyers who know the rhetorical tricks that Randy is playing. The duty of candor should be for people who cannot even begin to agree or disagree with you because they have little information about the matter: i.e. the general public in a newspaper column. It is one thing to say "Professor Jost's opinion reflects the likely result in the Supreme Court, but that shouldn't be the whole story in my view." It is another to say "Professor Jost, the entire con law academy, Congress, and the Supreme Court, are all committing treason against the Republic." Given his tone, Randy rather strongly implies the latter, and that just doesn't get him anywhere.
9.22.2009 6:56pm
Pyrrhus (mail) (www):
A little confused... has Barnett not made it abundantly clear that his opinion diverges from the mainstream of legal opinion in every post of this series?
9.22.2009 7:04pm
Off Kilter (mail):
Well, I hate to take things incorrectly, Orin. Perhaps if your post had been titled "Conceptions of Clarity" rather than "Conceptions of Constitutionality"...
9.22.2009 7:18pm
OrinKerr:
Off Kilter,

I'm not sure how that would address your comment, but I am glad to be of help.
9.22.2009 7:21pm
Assistant Village Idiot (mail) (www):
Until this one, your posts in exchange with Randy about this and related subjects had the honor(s) of being the best-named posts in a series for 2009.
9.22.2009 8:08pm
einhverfr (mail) (www):

• Bank of the United States: constitutional or not?

Depends on how you read this:
"To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;"

Sure sounds like a central bank to me.


• Louisiana purchase: constitutional or not?


That's a basic spending power issue right? Honestly have no idea whether that is Constitutional or not but I do know that is a political question ;-).


• Cherokee removal: constitutional or not?


Good question.

and

Legal tender paper money: Constitutional or not?


Well, since it doesn't say "mint coins" instead it says "coin money" I think that paper money would be Constitutional.
9.22.2009 8:10pm
jim47:
To the issue of clarity: when the question before us is that citizens have tried to argue that their representatives ought not pass certain legislation because that legislation is argued to violate the constitution, I am unsure how a move away from interpreting the written Constitution and toward interpreting the Constitution-the-Court-recognized clarifies, rather than obscures.

The entire issue arises because the legislation is of the variety that, constitutional or not, is very likely to receive a great deal of deference by the court, so that Congress's (lack of) consideration of the legislation's constitutionality is likely to be final. When debating which is the correct view Congress should take, or which its constituents can legitimately agitate for, the question "what will the court acquiesce to?" does more to obscure than to clarify the question.

And to the extent that it purposely obscures the question, it takes on a normative meaning rather than just a semantic one. It says, in effect, that Congress, as a normative matter, should never contemplate whether it is Constitutionally appropriate for them to pass a particular law, because the Court's deference to Congress on the question of Constitutionality is identical to Constitutionality itself.
9.22.2009 8:26pm
Jon Roland (mail) (www):
Orin Kerr:

If someone asks you if X is constitutional, you can simply say, "Under existing law, yes, although I believe that's wrong." I think this is the most informative kind of answer.

It is more informative to say, "Under existing legal practice ..." Using the same word, "law", for fundamentally different things, is to encourage category errors.

All in all, if I were grading most of these comments in a philosophy class, I would flunk you.
9.22.2009 10:03pm
Jon Roland (mail) (www):
Another realist:


• Bank of the United States: constitutional or not?

Unconstitutional, given its uniquely privileged position with respect to the government. Merely incorporating an ordinary bank within DC, and depositing some of the government's money there, on terms that gave all banks an equal opportunity to manage them, would have been constitutional.


• Louisiana purchase: constitutional or not?

Unconstitutional to pay money without an appropriation, but Congress retroactively remedied the breach by approving the treaty and appropriating the funds.


• Cherokee removal: constitutional or not?

Unconstitutional. The SC got that one right.

Sara:

* Legal tender paper money: Constitutional or not?

Unconstitutional on state territory, but constitutional on territory over which Congress has exclusive legislative jurisdiction, such as DC and incorporated territories not yet admitted as states.
9.22.2009 10:12pm
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9.22.2009 10:12pm
Sara:

Well, since it doesn't say "mint coins" instead it says "coin money" I think that paper money would be Constitutional.


Ahh, but it's not just whether Congress can "print Money" (which is, clearly contra text, not "coin" or coining) but whether it can also MANDATE that such paper must be accepted as 'legal tender for all debts, public and private.' There are "originalists" who say: No, on both counts.
9.22.2009 10:15pm
Jon Roland (mail) (www):
marksleen:

Congress can refuse to pass a law that the Court would find constitutional and can do so because the members of Congress independently believe the law is unconstitutional.

It can, but the present state of nearly total disrespect for the Constitution by almost all members of Congress is such that they seldom bother to even think about it, and demands from the public for constitutional compliance are dismissed as noise.
9.22.2009 10:17pm
Jon Roland (mail) (www):
Off Kilter:

In article one you claim "Plessy was wrongly decided for the following reasons based on what the Constitution says--what reasonable interpretation of the document says."

In article two you claim "Brown was wrongly decided for the following reasons based on what the Constitution says--what reasonable interpretation of the document says."

The correct way to present these cases would be that Plessy found the Constitution did not forbid segregation, and that Brown found that given the facts, there was no practical way to provide equal treatment without integration, and made an equity decision to that effect, not a constitutional construction.
9.22.2009 10:23pm
OrinKerr:
Jon Roland,

My recollection is that you have written something like 10-15 blog comments in the last few days you argue that we should call your vision of the Constitution "law," and existing law "legal practice." We get it by now. Could you please stop? You are free to keep making your same point again and again on your own website, but please do not make that argument again here.
9.22.2009 10:27pm
Jon Roland (mail) (www):
CheckEnclosed:

The laws derive legitimacy from their conformity with the Constitution. The Constitution derives its legitimacy from ... what?

From a historic act of lawgiving, the ratification, to which all others accede by remaining on the territory governed by it past the age of majority.
9.22.2009 10:29pm
Jon Roland (mail) (www):
jim47:

When debating which is the correct view Congress should take, or which its constituents can legitimately agitate for, the question "what will the court acquiesce to?" does more to obscure than to clarify the question.

If this were a class in the philosophy of law, you would get a "B" for making this point. (To get an "A" you would need to develop it more, and offer solutions.)

The problem with most lawyers, including law professors, is that their training impels them to stick to the linguistic conventions of legal practice. Legal philosophers have to be prepared to introduce new terminology if needed to achieve clarity.
9.22.2009 10:36pm
Jon Roland (mail) (www):
OrinKerr:

you argue that we should call your vision of the Constitution "law," and existing law "legal practice." We get it by now.

No, you don't get it. You just got it wrong again. And you keep getting it wrong in ways that contributes more to confusion than to clarity. I will stop making the point when you start making the same distinction in your discussion. You don't have to use the term "legal practice". You can adopt another term, like praxis, which is one I sometimes use, or invent a new term.

What is really annoying from a philosophic standpoint is to cling to the use of a term that does more to obscure than to elucidate.
9.22.2009 10:46pm
Jon Roland (mail) (www):
And to further facilitate clarity, I suggest abandoning the use of the term "law" in these discussions, unless it is in quotes, and use a term like nomoi meaning "commands from a lawgiver to the public".
9.22.2009 10:55pm
Allan Walstad (mail):
My view of the Constitution might be wrong, might be controversial, might be rejected by the Supreme Court. All the same can be said of decisions of the Court itself, as any and all overturned Supreme Court opinions/decisions clearly demonstrate. The effectual difference is that the wheels of power turn in accordance with that the Court decides. So I guess if the Court decides that red means blue and blue means red, we'll just have to be bound by it or take the consequences, at least until the justices stop smoking those funny cigarettes. But the Court's saying so does not in fact turn blue into red, nor does it turn the Commerce and Welfare clauses into legitimate bases for virtually unlimited federal power.


• Bank of the United States: constitutional or not?

Depends on how you read this:
"To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;"
Sure sounds like a central bank to me.

Legal tender paper money: Constitutional or not?

Well, since it doesn't say "mint coins" instead it says "coin money" I think that paper money would be Constitutional.

In my Webster's, "coin" as a transitive verb means "to make (coins) by stamping metal" and "to convert (metal) into money" (with parenthetic expressions other than this one being in the dictionary, not my adding). Regulating the value of money seems to mean making sure a 1-oz gold coin really is made of an once of gold, or deciding whether to make coins in 1-oz or half-ounce or quarter-ounce sizes or whatever. Note the juxtaposition with standards of weights and measures.
9.22.2009 11:33pm
OrinKerr:
Orin Kerr to Jon Roland:
We get it by now. Could you please stop? You are free to keep making your same point again and again on your own website, but please do not make that argument again here.
Jon Roland to Orin Kerr:
No, you don't get it. You just got it wrong again. And you keep getting it wrong in ways that contributes more to confusion than to clarity. I will stop making the point when you start making the same distinction in your discussion.
Jon, this blog is our blog, and you comment here as a guest: if you decide to ignore my requests, we will not let you comment here.
9.22.2009 11:40pm
Oren:
Jon, this is nominalism taken to ridiculous lengths. What you name something is independent of what it is.
9.22.2009 11:47pm
Brett Bellmore:
But what you name something can either illuminate or obscure what it is. Language can be intended to aid thought, or obstruct it.

I'm with Jon here; Calling anything but the actual TEXT of the Constitution, as formally amended, "the Constitution", is part of the legal community's Newspeak. It's intended to make it difficult to point out and discuss discrepancies between that text and legal practice. Because such discrepancies are legion, and most of the legal community wants them to pass unnoticed.

That text isn't anybody's "vision" of anything, it's an ordered set of words, and leaving aside a few people who argue about whether certain amendments were legitimately ratified, we all agree on what those words are. You really are trying to hammer his position into something that better fits your preferred narrative, where it's all competing opinion, and nothing more.
9.23.2009 12:01am
Leo Marvin (mail):
Jon Roland,

Using the same word, "law", for fundamentally different things, is to encourage category errors.

When you come to collect the $100 I bet you that David Bernstein's next post would announce his new job at Human Rights Watch, and I give you $4, explaining I meant Base 2, whose fault is the fight that ensues? You're entitled to advocate for any definition you like, but how can you blame the confusion on someone who uses the word as it's commonly understood?

In other words, what Oren just said, but longer and not as clear. But otherwise better.
9.23.2009 12:02am
OrinKerr:
Brett writes:
That text isn't anybody's "vision" of anything, it's an ordered set of words, and leaving aside a few people who argue about whether certain amendments were legitimately ratified, we all agree on what those words are. You really are trying to hammer his position into something that better fits your preferred narrative, where it's all competing opinion, and nothing more.
I assume you aren't directing this to me, as it would be utterly ridiculous to think that all interpretations of the Constitution are "nothing more" than competing opinion.
9.23.2009 12:11am
Jon Roland (mail) (www):
Oren:

Jon, this is nominalism taken to ridiculous lengths. What you name something is independent of what it is.

Philosophic discourse is about using language to clarify thought, and some use single terms that conflate multiple meanings that are not always clear from context. Clarity can then be facilitated by disaggregating the diverse meanings and assigning different terms to each, perhaps new terms that do not carry the baggage of the more familiar terms whose use can cause confusion.

I am suggesting we do this by using nomoi to refer to "commands from a lawgiver to the public who is obliged to obey them", praxis for what legal practitioners , do, and perhaps a third term, nomology, for the academic field of just just the subject matter of law schools, but the larger subject of "laws" of all kinds, perhaps restricting it to the field studied in law schools by a qualifier like domestic, municipal, civil, or some other such term.

I have also made good use of

* legislative enactments
* judicial enactments
* administrative enactments
* private enactments
etc.

I have also used the terms

* constitutionally derived law
* regime, what is actually enforced

With further discussion and perhaps some creative neologism, we might be able to come up with terms that can help us avoid confusing one another.
9.23.2009 12:13am
Allan Walstad (mail):

Jon, this blog is our blog, and you comment here as a guest: if you decide to ignore my requests, we will not let you comment here.

Wow. Jon is not being abusive, and his comments can easily be ignored if you feel they are redundant. I suppose if I continue to emphasize points I think are relevant, I can expect to be invited to leave as well? So be it.
9.23.2009 12:16am
Uncle Win (mail):
Orin,

Is your entire point simply that we should always include with every opinion the caveat that we might be wrong? Dear God I hope that's not all that this is about.

Or are you claiming that others make normative judgments while opining on Constitutional law, whereas you do not?

If it's the latter, I'd be interested to hear you explain why certain of your Con law opinions are correct without resorting to a normative judgment as to what the Constitution "really says" or "really means"?
9.23.2009 12:22am
Jon Roland (mail) (www):
Leo Marvin:

how can you blame the confusion on someone who uses the word as it's commonly understood?

Merely pointing out what the evidence supports, that such common usage is resulting in confusion, whether used by him or anyone else. I am, however, treating him as intelligent enough and sufficiently serious about achieving clarity to recognize the problem caused by the continuing use of that term in that way, and to join me in exploring alternatives.
9.23.2009 12:23am
OrinKerr:
Allan,

My experience is that we can considerably improve the quality of our threads with a little gentle nudging in the direction of relevance and civility, all consistently with our comment policy below. Jon Roland posts here dozens of times a day, and his comments offer a very, um, unique agenda that sometimes threatens to take over our comment threads. I don't want him or anyone else to do that, as I want this to be the best blog I can make it. If you think it's offensive that I am trying to do that, or how I do it, you are of course free to comment elsewhere.
9.23.2009 12:28am
OrinKerr:
Uncle Win,

No, I'm just arguing against trying to trick people.
9.23.2009 12:30am
Uncle Win (mail):
Jon,

For the sake of clarity, please stop suggesting that we all replace our normal terminology with obscure Latin phrases, which are completely foreign to American legal discourse.
9.23.2009 12:30am
Uncle Win (mail):
Or maybe they're Greek...you get my point.
9.23.2009 12:34am
Jon Roland (mail) (www):
Uncle Win:

For the sake of clarity, please stop suggesting that we all replace our normal terminology with obscure Latin phrases, which are completely foreign to American legal discourse.

They are Greek words, and I am not insisting that everyone adopt them, only suggesting that they adopt some terms that distinguish between commands from a lawgiver to the public and the activities of legal practitioners (other than if they happen to operate as lawgivers). Using the single term "law" (without quotes) in the way it is commonly being used is causing confusion, both for legal professionals, which this forum evidences, but for the public that "law" (in all of its meanings) is supposed to serve, and whose understanding and support is needed.
9.23.2009 12:43am
OrinKerr:
Jon Roland,

I have asked you not to keep commenting on this at our blog, for reasons stated above. I would also ask other commenters not to ask Jon about his unique ideas: Feel free to debate them over at Jon Roland's blog, but not here.

Thanks for understanding,
Orin
9.23.2009 12:50am
Dan Simon (mail) (www):
Perhaps I can illuminate the disagreement, by referring to Orin's earlier magnificent religious analogy. Essentially, Barnett, Roland and others of their ilk are Constitutional fundamentalists. Like religious fundamentalists, they take an "in for a penny, in for a pound" approach to the texts they embrace: if you're serious about them, they say--if you really believe them to have absolute authority--then you must devote yourself to understanding their true, fundamental and inalterable meaning. And conversely, if you treat them as inscrutable, malleable or otherwise even partially indeterminate in their meaning, then you might as well not believe in them at all, because you will inevitably fall into error, read your own proclivities into them, and thus drift away from them into unmoored chaos.

This is not a frivolous or easily refuted position. On the contrary, it poses a grave challenge to all non-fundamentalist approaches to textual authorities, whether religious or legal. One can, of course, reject the authority of such texts altogether--atheists and parliamentarians do exist, after all, and even thrive in the absence of a textual anchor. (As a constitutional minimalist, I lean in this direction myself.) But those who do accept a written authority must, at some point, address the fundamentalist challenge: if you don't consider your interpretation to be correct, not simply as a matter of opinion, but in some higher sense that makes alternative interpretations fundamentally incorrect, then what, exactly, does referring to the text as the source of your opinion do for you? Why not simply throw away the text, and recast your "interpretation" as your opinion, tout court?
9.23.2009 1:15am
OrinKerr:
Dan Simon,

You should read this book, if you haven't already: Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations. Good stuff.
9.23.2009 1:28am
Dan Simon (mail) (www):
Orin: Hmm...sounds like it's addressed more at originalists than at minimalists like myself. Or does it also make a serious case in defense of countermajoritarian judicial review, beyond, "hey, everybody's doin' it, so what's the big deal"?
9.23.2009 2:10am
arbitraryaardvark (mail) (www):
a dialog:
"Is x constitutional?"
"Well that depends, do you mean Larry, Moe, Curly, or Shemp?"
"Huh?"
"Larry is what the court will probably say, extrapolating from past decisions. Moe is what Randy Barnett or Richard Epstein think, and is a pretty close approximation of what the constitution objectively means. Curly is what I think it means, Shemp is what you think it means.
If you are a state actor, you should feel constrained by both Larry and Shemp. If you've sworn to uphold the constitution, you are obliged to follow what you think it means, as well as what you think the court thinks it means
You are free to ignore Moe and Curly, but Moe and Curly can inform Shemp,and maybe that's what you were asking - it wasn't clear."
"Oh. Legalize Shemp!
So when I ask you is x constitutional, I mean Larry but also Curly. Is x constitutional?"
"State or federal?"

[I came to this thread because I wanted to talk about "law", but given the dispute over Jon I'll stay away from that for now.]
9.23.2009 3:13am
Brett Bellmore:
You know, we could settle much of this by drafting a series of amendments to make the actual text of the Constitution unambiguously agree with legal doctrine concerning it. If the doctrine is really as popular as those defending it claim, said amendments would pass easily, and completely undercut the arguments of originalists about modern interpretation.
9.23.2009 7:41am
Cornet of Horse:
OK,

"You should read this book, if you haven't already: Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations. Good stuff."

That title well captures the patronizing attitude of the non-foundationalists, and hey, they've (you've? I take you as attempting to carve out a non-committal, judicious, descriptive position from which to arbitrate the proceedings. Am I mistaken? Or perhaps you're Bruce to Barnett's Wallace - Braveheart version of history?) got the power and have had for a good while, so why not condescend to the poor benighted fools clinging to the old gods in their desperation?

I'm unconvinced that that is what Barnett, or indeed many others tarred with the "foundationalist" brush are in fact up to. Its more about community than certainly - specifically how one constitutes a community that can transcend tribalism, which I hope we all can agree that we've descended into, to greater or lesser extent, in the time since the non-foundationalists have gained the upper hand.

This too, was of primary concern to the Founders, who spoke often about countering regionalism or faction in describing their efforts to craft a Constitution that could unify a people across such boundaries. It seems prudent to assume those seeking to carry on that work are working out of the same intent, rather than dismissing them as chasing some certainty that is not available in this world. Would you say that the Founders were desperately seeking certainty in their study of Cato, Cincinnatus, and Plato?

This community they sought was not merely a temporal one, across boundaries within their own time, but one across generations, back to the best who had gone before, and forward to maintain a Republic for as long as we could keep it. It has been our shared commitment to those ideals committed to writing by those Founders (including, yes, defending those ideals with guns, and worse, when necessary) that has kept us United for as long as we've been.

They are our institutional memory. Strong non-foundationalism is the Alzheimer's of our body politic.
9.23.2009 10:10am
PubliusFL:
I more or less agree with Jon and Brett. Prof. Kerr says:

If someone asks you if X is constitutional, you can simply say, "Under existing law, yes, although I believe that's wrong." I think this is the most informative kind of answer.

Doesn't this whole dispute go away if you simply substitute "case law" or "precedent" for "law" in that answer? Doesn't that make the answer even more informative (by making it clearer what you mean by X being constitutional)?

It can also help clarify what you mean by "I believe that's wrong," which goes to a weakness of the "is"/"ought" dichotomy that Prof. Kerr discussed a few days ago ("what the law 'is' and what the law 'ought' to be"). That dichotomy means different things depending on, for example, what you mean by "law." With respect to a particular constitutional provision, we can talk about (a) what SCOTUS is likely to rule in a particular case based on the very latest precedent, (b) what result might be suggested by a better interpretation of the wider body of case law (e.g. if the very most recent case or two seems out of step with previous decisions), (c) what meaning is suggested by our favorite theory of constitutional interpretation, (d) what the plainest reading of the text is, and (e) what our ideal constitutional provision on the subject would say. All of these may be different. Which is "is"? Which is "ought"?
9.23.2009 10:42am
Sara:

tribalism, which I hope we all can agree that we've descended into


I don't know how this hope informs your thinking but I don't agree.
9.23.2009 10:59am
Cornet of Horse:
Sara,

How would you characterize your identity?
9.23.2009 11:30am
OrinKerr:
Cornet of Horse,

Have you read either Randy Barnett's work on the 9th Amendment or his book, Restoring the Lost Constitution?
9.23.2009 11:57am
Sara:
I'm not sure what you're asking of me? I probably have a multplicity of things you could consider identity, which change by context.

Me? I'm Sara.
9.23.2009 12:08pm
Guest14:
But when you're arguing what a specific document means, it does not do to argue it means one thing in one article and a totally opposite thing in a different article.
It's not at all clear to me that trying to determine a point of constitutional law is "arguing what a specific document means".
9.23.2009 12:30pm
VSJB:
The heart of Randy's criticism, it seems to me, is that Orin's usage makes the term "constitutional" meaningless for judges. This criticism could as easily be directed at Holmes, because Orin takes the same position as he does in the Path of the Law: the counselor or advocate cares only about the actual likelihood of one or another disposition; he doesn't care at all about what the courts ought to do. "Constitutional," for the lawyer, is a term of prediction that a court will sustain government action or enforce a law as enacted.

That's fair, but where does it leave the bench? How can a judge talk about constitutionality in this way? Is he meant to predict his own ruling? But if so, then on what ground? It seems to me that the judge must interpret something—this could be a text alone, but it might include interpreting legal tradition or culture more generally; he can't just describe the likelihood of his own behavior. I think this is what Randy points to when he says Orin's usage can't be "operationalized." [As for that term: Yikes!]

Why ought we to use a term in a way that excludes judges?
9.23.2009 12:47pm
Cornet of Horse:
OK,

"Have you read either Randy Barnett's work on the 9th Amendment or his book, Restoring the Lost Constitution?"

Of course. I'm trying to engage with what he's actually saying here, where I believe him to be trying to find some, any area of agreement from which to counter Professor Jost's claims, which strike me as potentially worrisome to a far wider set of approaches than Randy's.

Likewise, I fear that the characterizations of Randy's general intent I've read here may be excessively uncharitable, and unwarranted given the stated intent of the Founders themselves. Of course E Pluribus Unum was not their only intent, but I must confess that I have difficulty comprehending the animus that Randy arouses.

For what it's worth, I'm glad that Jon Roland wasn't entrusted with those tablets either, but at some point, one needs to fish or cut bait.
9.23.2009 12:47pm
Cornet of Horse:
Sara,

"I'm not sure what you're asking of me? I probably have a multplicity of things you could consider identity, which change by context.

Me? I'm Sara."

Sounds great. I'd like more Saras.

That's a normative statement. Both all-normativity-all-the-time and no-normativity-allowed approaches tend to dehumanize my conception of you, far as I can tell. A proper balance of the two (is/ought, descriptive/normative, real/ideal) is essential for good character, and the appreciation thereof - it's not some antiquated foundationalism.
9.23.2009 12:55pm
liberty or death:
I think Randy is right as I understood him. When we talk about what is "constitutional" we should be talking about the text and its possible interpretations. Probable Supreme Court rulings are irrelevant (although the Supreme Court is an excellent source for looking at possible interpretations).

Orin's contention seems to be the classic response: "but different interpretations are possible." Of course that is true, and of course people can deceive others by representing their opinion as fact. But aren't there any cases where all reasonable interpretations lead to the same result? If not, what is the point of having a constitution?

At bottom, Orin seems to be doing nothing more than impugning Randy's motives. Quite unbecoming.
9.23.2009 1:05pm
Cornet of Horse:
OK,

Actually... not the work on the Ninth Amendment (although as you've noticed, I have plenty of time, ending today, to bone up if you'd like to suggest a link), but I've read the book and am of course in broad sympathy with it, though I'm trying to argue that it is not particularly germane to the discussion at hand. I rely on your tender mercies to determine whether I, too, am merely playing rhetorical tricks here or perhaps am just pathetically deluded.

You may have also guessed that I come to the debate from a biblical criticism, rather than a constitutional criticism, background, where I did battle against both the cafeteria crowd and the prooftexters. Not always a bowl of cherries being in the middle, is it?
9.23.2009 1:13pm
PubliusFL:
Guest14: It's not at all clear to me that trying to determine a point of constitutional law is "arguing what a specific document means".

Um, the Constitution? After all, as Justice Frankfurter noted, "the ultimate touchstone of constitutionality is the Constitution itself, and not what [SCOTUS has] said about it."
9.23.2009 1:28pm
Ryan Juliano (mail):
Professor Kerr,

You may not be advocating a particular constitutional vision, but you are advocating a specific jurisprudential vision. That becomes clear when you say: "If someone asks you if X is constitutional, you can simply say, "Under existing law, yes, although I believe that's wrong.""

If we are being clear, you can't "simply say" that. In doing so, you're assuming an answer to the contested jurisprudential question: How do we determine the content of law? If you maintain that the content of the law can be A, and that it can nonetheless be wrong, you must assume that the content of law is independent of morality (i.e. wrongness). In other words, you think that lawfulness is a different standard from morality, and it sounds like you're a kind of analytic positivist. I think it's at this deep, jurisprudential level that you part from Professor Barnett.

If that is your jurisprudential approach, the content of the law must be discernable from objective social facts. Here's where I think Professor Barnett's concern comes into play. What are those social facts by which we can determine the constitutionality of X? The words of the constitution? No, because they are patently ambiguous. The Supreme Court's precedent? Again, as Professor Barnett argues, unclear. In unclear questions, like whether Congress can mandate healthcare coverage, there are only two positivist answers. The first is that the law is unclear, and we have to make a choice; in that case we cannot say that X is or is not constitutional. The second is that the law is whatever the Court will probably say it is. If you deny that you are giving the second answer, you're left with the first. I believe that people that think seriously about the law have deep intuitions against that agnostic stance.

I'd be very curious to hear your thoughts on this.
9.23.2009 1:37pm
Guest14:
Um, the Constitution?
American constitutional law encompasses much more than just the text of the document titled "Constitution", and I consider this a descriptive, not normative statement.
9.23.2009 2:31pm
Andrew Hyman (mail) (www):
If someone asks you if X is constitutional, you can simply say, "Under existing law, yes, although I believe that's wrong." I think this is the most informative kind of answer.


The word "wrong" seems a bit problematic. One might view the policy result of a SCOTUS decision as right, even while viewing the decision as wrongly decided.

As the rail-splitter said:

I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration, in all parallel cases, by all other departments of the government. . . . At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.


In Cooper v. Aaron, the Supreme Court said:

[T]he interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land....


In my opinion, that is true, but only because Brown was plausibly decided. But if the Court meant in Cooper v. Aaron that everything the Court may ever choose to say is the supreme law of the land, then that's a bit much for me. If it were true, then the justices would be dictators.
9.23.2009 2:53pm
PubliusFL:
Right, there are various sources you look at in determining a point of constitutional law: Supreme Court decisions, lower court decisions, treatises, law review articles, etc. Some are considered more or less persuasive or binding then others, depending on forum etc. But they're all aimed at trying to get at "what a specific document means" -- the Constitution. That's why it's called constitutional law. Same as biblical scholars -- they study a lot more materials than just the Bible, but in the end the Bible is what all the other materials are about, or are used to analyze.
9.23.2009 2:53pm
Leo Marvin (mail):
Cornet of Horse:

Of course E Pluribus Unum was not their only intent, but I must confess that I have difficulty comprehending the animus that Randy arouses.

The only animus I see is the sort that regrettably infects most of these threads, and less of that than usual. But I'd think you would be troubled by "Unum" coming from someone who won't entertain comments from the "Pluribus."
9.23.2009 4:58pm
Cornet of Horse:
LM,

Well, he's far from alone in that decision, and given the overall comments culture on the interwebs, I'm not sure that I blame him. Opening up comments, especially to a group evidently chomping at the bit to project every last one of their worst fears onto your post, is not obviously a productive way forward.

Now I believe it to be so, and am glad that EV, KA, DB, DK, OK, JA, and IS (have I left anyone out?) agree, but I can certainly see the other side. RB, JL, et. al. perceive themselves (correctly) as a minority within a minority (libertarians in the academy), and would prefer not to give the majority yet another chance to shut them down and ridicule them without giving proper (liberal, disinterested) consideration to their arguments. The territory is already marked; yet another dog pissing in their direction is superfluous.
9.23.2009 6:04pm
markm (mail):

Off Kilter (mail):
Orin: Imagine you are not a lawyer in front of the Supreme Court making whatever argument you think most beneficial to your client. Instead imagine you are writing a series of articles on settled Supreme Court decisions for a law journal.

In article one you claim "Plessy was wrongly decided for the following reasons based on what the Constitution says--what reasonable interpretation of the document says."

In article two you claim "Brown was wrongly decided for the following reasons based on what the Constitution says--what reasonable interpretation of the document says."

Really, you can't imagine that both were wrong?

Plessy was wrong because it assumed blatantly false facts. If the schools had been anywhere near equal, the black parents would never have gone to court, and the (in)justices knew it. Brown was wrong because, rather than acknowledging that the courts had been supporting a lie for 60 years of "separate but equal" and making it clear that this was going to stop NOW, they signed onto a bunch of sociological gibberish. As a result of the way this decision was phrased, courts became involved in running the schools - but not to improve them, rather to play a numbers game. A couple of decades later, the Boston public schools were spending large sums to bus kids from one horrendous school to another one just as bad, against the wishes of parents of all colors.

IMHO, a correct decision in both cases would have been, "Separate but equal schools would be allowable, but they are not equal. The courts are not qualified to take control of schools to correct this. So, until the school board either abolishes the separate schools or can demonstrate that the schools for Negros are truly equal to the schools for whites, Negro children may attend the schools for whites."
9.23.2009 7:33pm
ChrisTS (mail):
Leo Marvin:
The only animus I see is the sort that regrettably infects most of these threads, and less of that than usual.

Yup. I suppose it is interesting, in that corpses-are-interesting way, that we get to see two Conspirators go at it [civilly] and then watch folks get angry defending/insulting one or the other Conspirator and his defenders.

Sort of a nasty hall of mirrors affect.
9.23.2009 8:48pm
ChrisTS (mail):
Leo Marvin:
The only animus I see is the sort that regrettably infects most of these threads, and less of that than usual.

Yup. I suppose it is interesting, in that corpses-are-interesting way, that we get to see two Conspirators go at it [civilly] and then watch folks get angry defending/insulting one or the other Conspirator and his defenders.

Sort of a nasty hall of mirrors effect.
9.23.2009 8:48pm
ChrisTS (mail):
Cornet:

While we are at it, Dear, what's with the 'when the Boomers pass' stuff? Do you consider yourself too young or too old to be a 'Boomer'?

As far as that goes, is it my imagination or are 'generations' being identified evermore narrowly? (I.e., a 'generation' used to be 20 years, then it was 15 years, then..)
9.23.2009 8:50pm
Cornet of Horse:
ChrisTS,

"up. I suppose it is interesting, in that corpses-are-interesting way, that we get to see two Conspirators go at it [civilly] and then watch folks get angry defending/insulting one or the other Conspirator and his defenders."

Well, whether civil or angry, I don't think that Barnett received a sympathetic reading of what he was actually saying, and I'm not much for piling on folks with the courage to put forward principled good-faith minority opinions in general, even if one feels that his larger body of work is germane. It's like mocking pacifists. Bad form.

Actually, I'm not much for piling on in general.

As for myself and the Codger Boom, I confess to incorrigible bigotry on that account, though I do make furtive attempts to corrige it. Likely anger issues regarding Me Generation abrogation of parental duties* - that's the usual Buster hang-up. I'm 39, so past due to get over that one.

* - don't ask, I assure you that they are suitably
egregious.

As my quarantine will be up in the morning, I now bid you all adieu with another tidbit for Anderson:

See #493.

You'll be missed.
9.23.2009 11:10pm
Leo Marvin (mail):
Cornet, be well, and please stop by more often, even if only for a few minutes.
9.24.2009 1:35am
Cornet of Horse:
9.24.2009 9:55am

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