Thursday, October 19, 2017

Guns, Constitutional Tests, and Games

by Michael Dorf

My latest Verdict column asks whether a federal ban on bump stocks would violate the Second Amendment. The short answer is no, but as I explain, the full answer is a bit more complicated. During the litigation that culminated in the 2008 SCOTUS ruling in DC v Heller, it was taken for granted by all the lawyers and justices that the federal ban on possession and transfer of machine guns made after 1976 is valid. Indeed, as I note in the column, Walter Dellinger, arguing for DC, labored to persuade the Court that machine guns are indistinguishable (for Second Amendment purposes) from other firearms and that therefore the Court ought not recognize an individual constitutional right under the Second Amendment. The ultimate opinion for the Court strongly hints in dicta that the machine gun ban is valid, but doesn't do a very good job of explaining why.

My column argues that the actual test the Court announced for whether various types of weapons count as "arms" under the Second Amendment seems to point in favor of counting machine guns: There are enough of them in circulation--about half a million--to count as in "common use" and thus not "unusual." To be clear, I don't think the courts are actually going to invalidate the machine gun ban, but I do think that the explanation for the validity of the ban is problematic.

The column uses that fact as an occasion to discuss the validity of a hypothetical law that would ban bump stocks, but there is also a more immediate question. Various states have banned so-called assault weapons, especially semiautomatic rifles such as the AR-15. There is currently pending before the Supreme Court a cert petition by the plaintiffs who challenged Maryland's ban on semiautomatic rifles. They lost in the district court, won before a panel of the Fourth Circuit, and then lost before the Fourth Circuit sitting en banc. The cert petition alleges a circuit split regarding the proper test for determining whether arms are in "common use" but no split regarding bans on semiautomatic rifles or large-capacity magazines. Accordingly, it is difficult to predict whether the SCOTUS will grant cert.

In any event, I want to use the balance of this essay to address a contention made back in 2011 by Judge Kavanaugh in his dissent from the opinion of the DC Circuit upholding the District's semiautomatic rifles ban. All of the judges on the panel agreed that semiautomatic rifles count as "arms" for Second Amendment purposes. The question was how to determine whether a law (more or less) banning this category of arms was nonetheless valid. Applying intermediate scrutiny, the majority said yes. By contrast, Judge Kavanaugh said no, but he gave a different answer to the threshold question of what standard of scrutiny applies. Noting that courts were divided over whether strict or intermediate scrutiny applies to laws infringing the Second Amendment, Judge Kavanaugh said neither. Instead, he wrote, courts should “assess gun bans and regulations based on text, history, and tradition.” In so stating, he echoed a point that Chief Justice Roberts made during the oral argument in Heller. There is a superficial appeal to their idea, but, as I shall explain, it is unworkable.

Judge Kavanaugh's reading of Heller is plausible in the sense that it is possible to read the majority opinion as saying that neither strict nor intermediate nor any other level of scrutiny applies. Indeed, CJ Roberts hinted at that approach during the Heller oral argument. Here is what he said:
Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine . . . how this restriction and the scope of this right looks in relation to those? I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up, but I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?
There are at least two ways to understand what CJ Roberts was saying here (and thus what Justice Scalia was saying for the Court in the ultimate opinion in Heller). First, the Chief might have just been making a point about timing. Heller was the first Second Amendment case in which the Court was going to find an individual right to possess firearms for self-defense and so it was not yet necessary to articulate a test. We can understand this view as reflecting a principle of judicial restraint. Eventually the Court could articulate a test, CJ Roberts could be saying, but under any likely standard, the DC ordinance challenged in Heller will fail, so there's no need to articulate a test in this case.

If that's what CJ Roberts and ultimately the Court in Heller were up to, then the lower court judges who have tried to fill the gap by arguing for either strict or intermediate scrutiny are on the right track. As cases that are closer to the line come up, it's necessary to know what test to apply.

Yet I don't think that the quoted language is chiefly advocating a go-slow approach. I think it is probably best read in the way that Judge Kavanaugh read the Heller opinion--as rejecting any "test" or "standard" in favor of just applying the Constitution directly, i.e., applying the "text, history, and tradition" regarding the Second Amendment directly.

Anyone who has taken a course in constitutional law, not to mention taught it for 25 years, as I have, will have some sympathy for that view. The various tests, sub-tests, and exceptions often do seem like "baggage," in the Chief Justice's phrasing.

Consider two examples. First, as Prof. Colb noted last week in her Verdict column and accompanying blog post, there is now before the Court a case that presents the question whether the fact that the police search a motorcycle rather than a car and/or the fact that the motorcycle is parked in a driveway rather than pulled over on the street puts the case into one or both hitherto unrecognized exceptions to the automobile exception to the warrant requirement that the Court has found in the Fourth Amendment, which it has made applicable to the states via the incorporation doctrine it has found in the Fourteenth Amendment. In other words, the case calls for the creation or rejection of one or more new judge-made exceptions to a judge-made exception to a judge-made doctrine that, via another judge-made doctrine, construes the Fourth and Fourteenth Amendments.

Second, consider levels of scrutiny. In the late 1930s, the Supreme Court abandoned close judicial scrutiny of laws infringing the freedom of contract. But to make clear that it wasn't thereby abandoning its role as guardian of rights, it allowed--in footnote 4 of the Carolene Products case--that  "[t]here may be narrower scope for operation of the presumption of constitutionality" when laws infringe specific provisions of the Bill of Rights, when they burden discrete and insular minorities, and when they entrench unfair forms of representation. That idea of "narrower scope" came to be strict scrutiny, which was contrasted with mere rational basis scrutiny. But over time the two-level scheme became three levels, once intermediate scrutiny was added. Then we got what is sometimes called "rational basis with bite." In addition, affirmative action programs appear to be judged by a somewhat watered down version of strict scrutiny. And the intermediate scrutiny applicable to sex-based classifications that turn on genuine biological differences between men and women is considerably milder than the intermediate scrutiny applicable to classifications that rely on traditional sex-role stereotypes. Depending on how one counts, there are anywhere from six to eight levels of scrutiny.

Thus, it is tempting to throw up one's hands and ask what any of this has to do with the Constitution. Tempting but ultimately misguided. Even if one thinks that any particular doctrine is unwise or disconnected from the underlying constitutional text or value, the enterprise of devising constitutional tests is inevitable and, on the whole, constraining. The inevitability point was made well by Prof. Richard Fallon twenty years ago in his Harvard Law Review Foreword, Implementing the Constitution (and later in a book with the same title, neither available free via the Internet). Here's what Fallon wrote in the HLR Foreword:
Even when general agreement exists that the Constitution reflects a particular value or protective purpose, questions of implementation often remain. For example, it may be a purpose of the First Amendment to protect against governmental efforts to stifle dissent, or of the Commerce Clause to prevent “‘economic Balkanization’ and the retaliatory acts of other [s]tates that may follow.” But the norms reflecting purposes such as these are too vague to serve as rules of law; their effective implementation requires the crafting of doctrine by courts. The Supreme Court has responded accordingly. By no means illegitimately, it has developed a complex, increasingly code-like sprawl of two-, three-, and four-part tests, each with its limited domain. 
Critics have protested that the Court's multipart tests are inappropriate because they do not plausibly reflect the Constitution's true meaning. But this criticism misses a crucial point. Identifying the “meaning” of the Constitution is not the Court's only function. A crucial mission of the Court is to implement the Constitution successfully. In service of this mission, the Court often must craft doctrine that is driven by the Constitution, but does not reflect the Constitution's meaning precisely. 
The alternative view--the one reflected in the statement by CJ Roberts during the Heller argument and by Judge Kavanaugh in his dissent in the DC Circuit semiautomatic rifles case--rests on the premise that the constitutional text, either standing alone or in conjunction with history and tradition, can somehow uniquely determine outcomes. Sometimes it can, but usually it cannot.

I can illustrate that point, finally, with a nice metaphor that I adapt from a point made by Prof. Mitchell Berman, who used the metaphor at a conference he and I attended some years ago. (He may have also used it in print or borrowed it in turn from someone else.) It goes like this:

Suppose Jane asks Joe if he wants to play a game. "Why?", Joe asks.

Jane answers: "To have fun. I like Scrabble. Shall we play that?"

"No," says Joe. "I don't like Scrabble."

"Okay," Jane says, "how about Go Fish?"

"I don't like that one either."

"Well, what game do you want to play?"

"I don't want to play any game."

Concerned, Jane asks "But don't you want to have fun?"

"Of course I do," Joe responds. "I just don't see why we have to play a game with made-up rules about letter tiles or cards or whatever to have fun. We should just have fun directly."

Joe is like CJ Roberts or Judge Kavanaugh. He doesn't realize that playing a game with complex and even somewhat arbitrary rules is the means by which to have fun. Meanwhile, CJ Roberts and Judge Kavanaugh do not seem to realize that constitutional tests, though complex and somewhat arbitrary, are the means by which to give effect to the Constitution.

21 comments:

Asher Steinberg said...

I'm happy to stake my predictive reputation on predicting a cert denial in that case.

I knew I liked Berman for a reason. But while it's true that one needs *some* test, I don't think it's true that the test has to be one of the tiers of scrutiny or anything like them. One could, as Roberts says, analogize regulations to the sorts of regulations allowed at the time of the Second Amendment, or infer some general rule about what sorts of regulations were allowed from the ones they had then.

Joseph Simmons said...

Good post and those two examples were excellent. ConLaw too often came across as parental "because we said so" statements. The kind of cynicism/realism as expressed by Prof. Segall bolstered this sense. And there I was Gorsuching to myself, "what about the Constitution?" So I appreciate this explanation.

Asher's response strikes me as an accurate description of Robert's view - and a view I find alluring. Yet, as you write, Prof. Dorf, a value of the tests is to constrain. The tiers of scrutiny arguably don't do a great job of constraining, but a pretty good one. If we establish a less structured test, we could imagine all manner of mischief. I think of the criticism of Kennedy's indeterminate standards. However, we might take the view that constraint is overrated. On that score, I think of Prof. Segall's preference for a judicial system that tolerates greater divides between judicial districts where the Supreme Court stays its hand (though scrutiny tests may be considered even more important in that scenario).

Joe said...

"Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine . . . how this restriction and the scope of this right looks in relation to those?"

So, you can ban taking guns to the marketplace and all that? Sounds likes an open-ended ban on public carry. For instance, I live in a residential area with a range of stores. Is this the "marketplace"? Where would public carry be allowed? Rural areas?

Anyway, one problem with his approach is that you really aren't starting from fresh here. The 2A isn't worked in a vacuum but is part of a wider existing system of rights and limits thereof, especially if you are incorporating it using 14A tests. And, I guess application of his originalist sounding rule (with a Kennedy gloss on changing times?) would include some of that.

Shag from Brookline said...

I knew I liked Mitchell Berman ever since reading his "Originalism is Bunk" available at:

https://papers.ssrn.com/sol3/papers.cfm?abstract-id=1078933

And he has a sense of humor.

Joe said...

"It wasn't Scalia, rather a BU Law conlaw prof who put the dagger in original intent. Can you guess his name?" -- Shag

I guess I might, but perhaps he can provide the answer. Thanks.

David Ricardo said...

After reading both this post and the Verdict column, I am sorry but I have to ask in what universe are bump stocks considered 'arms'?

Obviously not in the universe we live in. A bump stock does not fire a projectile, it seems like it cannot be used to club somebody, it has no trigger, no barrel, it is not sharp and cannot inflict damage by itself, it is not necessary for either a semi-automatic weapon or for a fully automatic weapon to function. There is not anything to suggest it falls in the category of 'arms'. . Arms are weapons. It would take a Supreme Court Justice as clueless and ideological as Clarence Thomas or Alito or Gorsuch to conclude that a bump stock is a weapon. The bump stock is an attachment. That it can somehow be classified as a weapon subject to 2nd Amendment protection defies any form or substance of logic.

Okay, I realize in an alternate universe, the one in which the gun nuts exist, anything that they decide is protected by the 2nd Amendment is protected by the 2nd Amendment. And there are probably at least four Supreme Court Justices who will go along with this fantasy, as they will also go along with the fantasy that silencers are weapons protected by the 2nd Amendment.

One day the real universe will prevail over the fantasy world. When that happens the people of that universe will look back a those of us who reside the our universe and ask “Are you people completely nuts?”

John Barron said...

"Judge Kavanaugh ... wrote, courts should “assess gun bans and regulations based on text, history, and tradition.”

Hate to crash the party, but under that line of reasoning (cannons were in private hands during the ARev), an argument could be made that we have a right to own and bear Stinger missiles. Not like it wouldn't come in handy for a local militia to have them....


"In the late 1930s, the Supreme Court abandoned close judicial scrutiny of laws infringing the freedom of contract. But to make clear that it wasn't thereby abandoning its role as guardian of rights, it allowed--in footnote 4 of the Carolene Products case--that "[t]here may be narrower scope for operation of the presumption of constitutionality" when laws infringe specific provisions of the Bill of Rights, when they burden discrete and insular minorities, and when they entrench unfair forms of representation. That idea of "narrower scope" came to be strict scrutiny, which was contrasted with mere rational basis scrutiny. But over time the two-level scheme became three levels, once intermediate scrutiny was added. Then we got what is sometimes called "rational basis with bite." In addition, affirmative action programs appear to be judged by a somewhat watered down version of strict scrutiny. And the intermediate scrutiny applicable to sex-based classifications that turn on genuine biological differences between men and women is considerably milder than the intermediate scrutiny applicable to classifications that rely on traditional sex-role stereotypes. Depending on how one counts, there are anywhere from six to eight levels of scrutiny."

What's missing, of course, is any kind of conceivable constitutional warrant for such nonsense. To you, whatever a judge finds in his Depends is the law. The Framers did not invest Article III judges with such inordinate discretion, but history is a blank pallette to the LC crowd. Judge Kozinski's objection is worth considering:

"KOZINSKI, Circuit Judge, dissenting from denial of rehearing en banc:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted [and] when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be
consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences.

Silveira v. Lockyer, 328 F.3d 567, 568-69 (2003).

My dour ancestors have a saying: "Be careful what you wish for. You just might get it." The Corporatist Democrats have purged Sanders supporters from the DNC, thereby all but ensuring losses in '18 and probably, '20. https://www.youtube.com/watch?v=CfFMmBSPT2A That means at least four more Trump appointees on SCOTUS, and the FedSoc filling every appellate vacancy for the better part of a decade.

"Law" is whatever the Platonic Guardians at One First Street say it is, and a gaggle of Gorsuches are your Guardians. And you don't even have a principled basis upon which to object.

John Barron said...

Berman: "That is, hard arguments seek to show that originalism follows logically or conceptually from premises the interlocutor can be expected already to accept."

You mean, like "words have meaning"? Heaven forfend!

Berman: "The upshot is not that constitutional interpretation should disregard framers' intentions, ratifiers' understandings, or original public meanings. Of course we should care about these things. But originalism is a demanding thesis. We can take the original character of the Constitution seriously without treating it as dispositive."

This begs the obvious questions you LC types have no answer to: When can a judge go off script? More specifically, exactly where do you find the proposition that judges have the authority to rewrite COTUS? They can't even write their own procedural rules! 28 U.S.C. § 2071, et. seq.

The Framers made no effort to define the Article III “judicial Power” because they didn’t have to.  Lord Bacon observed that the office of a judge "is jus dicere, and not jus dare; to interpret law, and not to make law, or give law." Francis Bacon, Essays LVI (Of Judicature) (1620).  Edward Gibbon observed in his magnum opus on the Roman Empire that “the discretion of the judge is the first engine of tyranny.” 1 Edward Gibbon, The History of the Decline and Fall of the Roman Empire 97 (ed. M.F. Guizot, 1844) (1776) (emphasis added). Blackstone maintained that the judge was "sworn to determine, not according to his own judgments, but according to the known laws." 1 Blackstone, Commentaries at 69. A century earlier, Lord Coke wrote, "[i]t is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion." 1 E. Coke, Institutes of the Lawes of England 51 (1644). Hamilton added that, to “avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case before them.” The Federalist No. 78, 470 (Alexander Hamilton) (I. Kramnick ed. 1987). Thomas Jefferson saw the judge as “a mere machine,” expecting that the law “be dispensed equally & impartially to every description of men.” Thomas Jefferson, Letter (to Edmund Pendleton), Aug. 26, 1776.

There is no contrary authority.

The "framers' intentions, ratifiers' understandings, [and] original public meanings" are established beyond cavil. They did not fight a bloody war simply to replace King George with King Judge. And if they can't even write their own procedural rules, by what colorable authority do our judges take an X-Acto knife to COTUS?

"There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."[F78]

We get it. "We HATES guns, My Precious! We hates them -- FOREVER! Gollum! Gollum!" But as I tell rabid anti-aborts, "you have to interpret the COTUS we have, not the one you want."

John Barron said...

No, Shag, I don't know who you are referring to. After all, the horse-puckey that passes for proof in your world doesn't seem to be recognized outside of your own study, and no one of note has abandoned originalism on the strength of your mystery man's arguments.

When the Framers ratified COTUS, they knew what they were getting into. In Madison’s view, there is one and only one proper way to interpret it:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone is it the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.

James Madison, Writings of James Madison: 1819-1836 191 (G. Hunt ed. 1910). Jefferson concurs:

Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives.

Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2.

The LC transmogrifies COTUS into a blank paper. It is not so much that originalism is a royal flush as it is that your alternate theory deserves to be flushed.

Shag from Brookline said...

More of "All Day I Face The Barron Waste .... "

Lord Bacon a Framers' influence by means of spiritual incorporation in Article III which is "Barron" in detail about the judicial branch? John's got egg on his face as he muffins through with selective quotes sans context.

Just who are the "dour ancestors" of this "Barron Wasteland"?

Query: How many times has SCOTUS overturned Kozinski's decisions? Perhaps that should be considered when basing an argument on a Kosinski dissent.

Shag from Brookline said...

Apparently John has "Moderation Anxiety," cramming in Barron irrelevancy.

John Barron said...

Shag: "Apparently John has "Moderation Anxiety,"

Now that I know the rules, I can work within them.

Shag: "John's got egg on his face as he muffins through with selective quotes sans context."

Objection, assuming facts not in evidence. Still waiting for ANY countervailing evidence from Team LC to support that baseless claim. Crickets on stand-by.

Shag: "How many times has SCOTUS overturned Kozinski's decisions? Perhaps that should be considered when basing an argument on a Kosinski dissent."

Stephen Reinhardt.

Not logically relevant. Every argument stands on its own merits. Could cite Posner, but AK was more eloquent on this score.

Shag: ""All Day I Face The Barron Waste .... "

Translated, you have no principled argument in rebuttal. Even using Berman's argument, your position is a cold-ass loser.

Joe said...

I'm confused by the relevancy of a recent comment.

The 2A protects "arms" but this would include aspects of arms, such as individual parts. The First Amendment protects books. This includes protecting various things that are involved in the creation of books. If, e.g., the magnifying technology of a Kindle device was blocked, it would have 1A significance. It is not that a bump stock is itself an "arm," but that protecting arms might protect that part of one.

Let's say it isn't protected. Something else might be. A weapon in common use includes the whole weapon, including individual parts. Heller held a handgun was protected for particular reasons & specifically blocked a regulation involving a trigger lock that interferes with their usage. This would include individual components of the handgun that advances the ends that make it a "common use" weapon.

Joe said...

I disagree with Judge Kozinski at various times so relying on him can be ymmv but think he would have made a good compromise choice for the Garland Seat.

Shag from Brookline said...

Follow up on Joe's 6:22 PM:

Paul Brest, "The Misconceived Quest for the Original Understanding," B.U. L Rev. 208 (1980)

I think Joe had the answer but the Barron Waste's "Now that I know the rules, I can work within them." is a two-way trolling street. I trust this will not interfere with John's day job.

By the bye, John must have been a moot court gasser.

John Barron said...

Shag: "I trust this will not interfere with John's day job."

Rather be playing golf, but rehabbing from dual knee replacements makes that somewhat problematic.

Shag: "Paul Brest, "The Misconceived Quest for the Original Understanding," B.U. L Rev. 208 (1980)."

By the bye, the "BU" threw me off; Brest taught at Stanford. And when Brest defecated his florid brand of idiocy on the streets of academia, Harvard's legendary Raoul Berger promptly ripped him a new one:

"Professor Paul Brest's article "The Misconceived Quest for the Original Understanding"' might better have been entitled "The Constitution is Dead." For after an exhaustive, Linnean-type classification of interpretive approaches - originalism, non-originalism, textualism, intentionalism, strict intentionalism, moderate intentionalism, etc., etc. - he sweeps all aside and mounts a challenge to the assumption "that judges and other public officials were bound by the text or original understanding of the Constitution." That judges are sworn "to support this Constitution" is of no moment. Richard Nixon, thou art vindicated.

Faced by the fact that the Court is imposing its own values on the people, often in defiance of the framers' intentions, Brest grasps the nettle: "What authority," he asks, "does the written Constitution have in our system of constitutional government?" And he answers that "the authority of the Constitution derives from the consent of its adopters." But "their consent cannot bind succeeding generations. We did not adopt the Constitution, and those who did are dead and gone," the old refrain - "The Founding Fathers cannot rule us from their graves." Since the judiciary itself is a creature of the Constitution, what becomes of judicial authority? ...

Brest maintains, however, that "the practice of supplementing and derogating from the text and original understanding is itself part of our constitutional tradition., That is a bland apology for judicial arrogation, for the Court early held that "judges cannot remedy political imperfections, nor supply any legislative omission[s]. They cannot, said Marshall, "change that instrument. " Usurpation is no more legitimated by repetition than is larceny; the last infraction stands no higher than the first."

Raoul Berger, Paul Brest's Brief for an Imperial Judiciary, 40 Md. L. Rev. 1, 1-2, 5 (1981) (emphasis added).

It is tragic -- but predictable -- that, having had his specious and baseless arguments obliterated in considerable detail, all Shag CAN do is resort to personal insults.

Shag from Brookline said...

Alas, original intent originalism went downhill after Brest's article which was published before Ed Meese became Reagan's AG and espoused original intent originalism. John, is the R. Berger you cite the same R. Berger who went into a constitutional snit with the unanimous Brown v. Board of Educ. (1954) decision? In the 1980s originalism shifted from original intent, to original understanding (of the Framers and/or Ratifiers?) to original public meaning to the New Originalism's interpretation/construction mode and continuing to evolve. Original intent originalism is trying to make a comeback, but a version of the New Originalism leads the pack, with corpus lingus and back in time "spirits" in Barnett's "Construction Zone."

John, I trust your faith in originalism (of some version) by praying is part of your rehabbing. I recall this from the recent past:

"ONE CAN STAND ON PRINCIPLE BY KNEELING."

And careful with the opioids, although your fellow golfer says he will take care of that. So be "FORE" warned.

John Barron said...

POWER - ACCOUNTABILITY = TYRANNY.

I have no faith in anything ... and even less faith in the ability of a Neil Gorsuch to rule me. The fatal flaw of the LC is that it inescapably precipitates a judocracy, and the thought of five Gorsuches rewriting COTUS should freeze your blood, too.

"Science" is the process by which an obviously-flawed theory with another, more subtly-flawed theory. The same concept applies here. Whereas the original intent iteration was ill-conceived and doomed to eventual failure, Berger and Bork sunk the Bismarck of Living Constitutionalism, and it has yet to be reclaimed from the ocean floor of Really Stupid Ideas.

When can a judge go off script? More specifically, where do you find the proposition that judges have legal authority to rewrite COTUS? You have no principled answer, and neither does Berman.

As a CPA, I think internal controls. Under the Framers' COTUS, there is a healthy array of effective remedies for judicial misconduct: removal for violation of good behaviour tenure, the 7Am jury trial (where the jury is the final arbiter of both law and fact!), appellate review, the writ of certiorari, the discipline of stare decicis, and even the right to sue a judge in tort and prosecute him criminally in appropriate cases. Under the LC, these limits on judicial power have all been extinguished. As Posner admitted in his recent novella, even federal trial courts are certiorari courts!

We were both trained as LC. We're almost forty years down the road, and originalism has been refined to the point where the LC cannot compete. The notion that we consent to the absolute rule of King Judge is so comical that to even state the case is to refute it.

Shag from Brookline said...

All this 2nd A discussion came to mind as I was listening to NPR on sexual assault/harassment, a dominant media topic since the Harvey Weinstein events surfaced. Back in 1791, the Militia provisions in the Constitution did not seem to apply to women. So perhaps prior to certain amendments subsequent to the Constitution, including the Heller (5-4, 2008) "amendment, there was no 2nd A protection for women regard sexual assault/harassment although self defense might be available to a woman responding to such. Perhaps women might apply post-Heller (5-4, 2008) "amendment" rights in responding to sexual assault/harassment. Then I recalled the John and Lorena Bobbitt event in the 1990s, which involved a knife, not a gun. The Heller (5-4, 2008) amendment involved a handgun that could be used in self defense in the home. Perhaps women subjected to sexual assault/harassment might look to Heller (5-4) as a hell of a way to combat sexual assault/harassment. Heller (5-4) could turn into a sort of women's liberation. Yes indeed, be careful of what you ask for. (Cite: Barron's "dour ancestors.")

Shag from Brookline said...

As Tonto responded to the Lone Ranger's "We are surrounded by Indians" saying, "What you mean 'We' C.P.A. ma ?"

As to John's claim that LC cannot compete with originalism, what's the count on SCOTUS?

As to refinement or originalism, it continues to evolve and backtrack. And John, your claiming to have no faith suggests you can't be a true originalist as originalism attempts to found itself on the Constitution's original sin, although some originalists claim that Brown v. Bd. of Educ. (1954) comports with originalism, contrary to R. Berger.

Shag from Brookline said...

As a follow up to my 2:48 PM comment, Jamal Greene has an interesting short article titled "The Case for Original Intent," 80 George Washington Law Review 1683 (2012) addressing original intent's attempt at a comeback. (Greene is not an originalist.) Perhaps this comeback inspired Barnett et al to enter New Originalism's spiritual "Construction Zone."