Wednesday, October 04, 2017

Justice Scalia and the Myth of the Originalist Judge

By Eric Segall

At midnight last night, Amazon began selling the Kindle version of a new book containing many of Justice Scalia's speeches. The late Justice was an excellent public speaker, and it speaks well of him that he was so willing to shares his views with the public. There can be no debate that he was a dedicated public servant who devoted his career to trying to improve our country. But, and his passing more than a year behind us should not stop us from recognizing this truth, he was not in any measure an originalist judge.
During Justice Scalia’s national speaking tours, he constantly lamented the living Constitution, and advocated for, what he repeatedly, called, the “Dead, Dead, Dead” Constitution. According to the Justice, “you would have to be an idiot” to think the Constitution is alive.

Scalia has said that my “Constitution is a very flexible one…there's nothing in there about abortion. It's up to the citizens. ... The same with the death penalty." To Scalia, “the only good Constitution is a dead Constitution.”

What Scalia meant by all of this “dead” and “alive” talk was that social and political change should some through the people and constitutional amendments, not through creative readings of text and history by nine unelected, lawyers. Scalia repeatedly pressed these arguments in his speeches to law students, college students, the media, his dissenting opinions, and the public at large.

There can be no denying how much of an impact Justice Scalia’s thirty-years on the Court has had on constitutional law, judicial politics, and how judges perceive and sell themselves. Bruce Allen Murphy said it best (and presciently) writing shortly after Scalia’s death: “From among the thousands of younger lawyers and conservative federalist society members who revere his judicial opinions, many books, and entertaining speeches, we might see his intellectual heirs rise through the judiciary in the years and decades ahead, with perhaps one or more being appointed to the Supreme Court.” This prediction, of course, given the Federalist Society’s direct role in choosing judicial nominees for President Trump, has more than come true.

There is one substantial problem with all of this. Justice Scalia did not vote like the Constitution was “dead, dead, dead,” and he never let text or history stop him from imposing his personal values on the rest of us during his tenure on the Court. As I've written before, Scalia’s voting patterns in areas as diverse as affirmative action, federalism, criminal procedure, jurisdiction, and free speech all betray his alleged judicial method.

Although Scalia occasionally broke with conservatives on issues involving defendants' rights and first amendment freedoms, his votes for thirty years reliably reflected those of the Republican Party. He supported (in the legal sense) gun rights, term limits, abortion restrictions, same-sex marriage bans, sodomy bans, affirmative action bans, class action limitations, consumer-hostile arbitration agreements, campaign finance restrictions, the death penalty for minors and the mentally ill, non-textual limitations granting states sovereign immunity from lawsuits and immunity from congressional commandeering, and the list goes on and on. In many of these areas, Scalia voted, usually along with four other conservatives, to strike down state and federal laws without a solid grounding in text or history.

Justice Scalia updated the Constitution all the time with non-textual principles he supported on purely policy grounds. This description of Justice Scalia by one commentator hits the mark:
The adulation by admirers of Justice Antonin Scalia over his alleged role as a conservative constitutional steward who applied neutral, nonpartisan principles, is pure myth…. Justice Scalia was, in fact, one of the most unabashedly partisan judges ever to sit on the Supreme Court. His manipulation of the constitution was brilliant, and maddening, mostly because he and his followers pretend otherwise…. Sometimes he glorified judicial restraint and vilified his colleagues for … expanding constitutional rights. Sometimes he was a clear example of judicial activism.
And here is law professor Paul Campos:
Scalia had no real fidelity to the legal principles he claimed were synonymous with a faithful interpretation of the law.  Over and over during Scalia’s three decades on the Supreme Court, if one of his cherished interpretive principles got in the way of his political preferences, that principle got thrown overboard in a New York minute…. Justice Scalia was only interested in originalism to the extent that it advanced his political preferences.
And one more using Scalia’s commerce clause votes to make the same point:
Scalia is neither a faint-hearted or stout-hearted originalist. He is a convenient originalist. He’s an originalist when it leads to the result he wants and he’s not an originalist when it doesn’t…. And he’s perfectly happy contradicting himself to reach the result he prefers. Just compare his ruling in Raich to his ruling in the challenge to the Affordable Care Act... In Raich he agreed that the interstate commerce clause gave Congress the power to regulate the growth of marijuana for personal use — an action that is neither interstate nor commerce — despite that being legal under state law. In the ACA case he argued that the interstate commerce clause did not give Congress the power to regulate the health insurance market, which is, by any definition, a matter of interstate commerce. Ironically, Scalia is exactly what he has for decades accused liberals of being, a results-oriented judge.
We should also not forget that even Professor Randy Barnett, one of our leading originalists, used the prestigious Taft Lecture at the University of Cincinnati Law School to lament "Justice Scalia’s infidelity to the original meaning of the Constitution," and to argue that "Justice Scalia is simply not an originalist."

So why do so many law professors and Court commentators pretend that Justice Scalia embodied the theory of originalism? It can’t be enough to justify the originalist label to talk about text and history but routinely distort or ignore those legal sources to implement your own values. Why was Scalia so effective in advocating for a theory of constitutional interpretation he did not personally implement? The answer may be that originalism generally is not really a theory of constitutional interpretation that judges can effectively use to decide cases but an aspiration, an article of faith, that tries to link judicial review, the rule of law, and, in our generation at least, conservative results. I’ll have much more to say about that thesis in the months to come.


John Barron said...

Law professors tend to be a haughty and imperious lot, with Eric "Bugsy" Siegel being emblematic of the genre. On Twitter, he seems to ban everyone who is not a fellow law prof and the temerity to disagree with him. An academic giant!

At the risk of stating the obvious, Scalia was no more faithful to his originalism than Tiger was to ex-wife Elin. He was a self-appointed and self-styled "Platonic Guardian," who enjoyed ruling us so much that he was willing to work for free, but squealed like a stuck pig when the other guys got to do the ruling. Though his own originalism is more a reflection of his militant libertarianism than anything else, Randy Barnett does not understate the case.

Originalism is a systematic method for interpreting a text. COTUS is a treaty between 13 co-sovereigns; pacta sunt servanda and basic rules of contractual interpretation apply. Words have meaning, which are established at the time of enactment. The document is not to be read strictly, but reasonably. As Scalia himself put it, “[i]f you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

Scalia did A LOT wrong.

The theoretical justification for originalism rests in first principles, as stated by Abraham Lincoln: “No man is good enough to govern another man, without the other’s consent.” COTUS—as written—is the outer limit of our consent. And how can we offer informed consent, if we can’t know what we are consenting to?

As Justice Iredell explained, COTUS created an express and limited agency. Thereunder, it is acknowledged that all rights belong to the individual. Some of these rights are knowingly ceded and other obligations accepted in exchange for a portfolio of civil rights: procedural remedies, intended to protect the rights we retain. And as is the case with more mundane contracts, the words have the meaning that the original parties ascribed to them.

When the Framers ratified COTUS, they knew what they were getting into. In James 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), accord, e.g., Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2.

The notion that the flaw lies in originalism--as opposed to power-besotted judges who testi-lied to secure their sinecures and sullied their oaths within minutes of their investiture--is risible. And ironically, the originalist COTUS does an awful lot that fervent LC advocates want it to, preserving rights to SSM and abortion on demand, and making way for the administrative state.

Bottom line, you can have your cake and shove it down Neil Gorsuch's throat. :)

Comments? Catch me at @0Scalia (Scalia 2.0).

Joe said...
This comment has been removed by the author.
Shag from Brookline said...

As John notes, "Words have meaning, ... " COTUS [one has to be careful with typing this term, if you know what "I" mean] does not include a specified means of interpreting COTUS. COTUS does not include the word "originalism." What does that word mean? It seems of fairly recent vintage in the interpretation/construction of COTUS as it was not in vogue when I took ConLaw back in the Fall of 1952 Those of us who follow the Originalism Blog and Larry Solum's Legal Theory Blog learn of various versions of originalism. There is a very new version of originalism in an article by Peter Bayer, "Deontological Originalism: Moral Truth, Liberty, and, Constitutional 'Due Process'" on SSRN.

The article runs 417 pages and I haven’t read it nor plan to. The abstract is also quite long and closes with this:

“Lastly, Part VI demonstrates that the modern Supreme Court employs not one, but two different and irreconcilable frameworks when addressing liberty, meaning, constitutional issues sounding in “due process of law.” One standard defines due process liberty empirically, based on discerning applicable liberty principles “deeply rooted” in American history and culture. I argue that reducing the meaning of liberty essentially to an uncritical historical review based on popular culture defies the moral standards set forth in the Declaration. The second framework defines due process liberty in terms of protecting and respecting the “dignity” innate in every human being. Although declining to so attribute, through this dignity approach, the Judiciary correctly evokes Kantian moral theory to animate the Constitution’s overarching guaranty of morality found in the liberty provisions of the Due Process Clauses. As part of that final proof, this writing explains why the recent 2015 decision Obergefell v. Hodges, ruling that the Constitution requires the States to treat same-sex marriages equally with opposite-sex marriages, is eminently correct constitutional moral theory.”

The entire abstract is posted at the Legal Theory Blog and provides a link to SSRN.

I wonder how the late Justice Scalia would have reacted to this article’s originalism.

Joe said...

Just start with the Constitution, like Judge Gorsuch said yesterday. That's what he does. The others don't. They just make stuff up. When will it leak that one of the justices think Gorsuch is a "moron" or something stronger?

So, Donald Trump, I mean, John Barron, is on the money!

John Barron said...

Shag: "COTUS ... does not include a specified means of interpreting COTUS"

Nor does it include a glossary--nor would we expect one. "[W]e must never forget, that it is a constitution we are expounding." McCulloch v. MD.

Per James Madison, terms of legal art had the meaning that they imparted at common law. E.g., 3 Elliot, Debates on the Federal Constitution 531 (1836) (stmt. of J. Madison). Ergo, we turn to English law books--for not only the definitions themselves, but the canons we use to interpret them. Blackstone. Coke. Heydon's Case. Ashby v. White. It was what Marshall did in Marbury, to such compelling effect. And as most of the terms are terms of legal art, that basically covers the waterfront.

To illustrate this point, let’s turn to the Good Behavior Clause. Section 1 of Article III informs us that judges “shall hold their Offices during good Behaviour.” Standing alone, it is perfectly opaque. So, what does it mean, and who has the legal authority to enforce it?

Since you probably haven’t even thought about it, I’ll give you my take. It is my position that the power lies with the aggrieved citizen, and that even a single act of misconduct warrants a pink slip.

The Framers actually thought that “good behaviour” meant something. In his advocacy of the proposed Constitution to the people of New York, Alexander Hamilton opined that “the standard of good behavior for the continuance in office of the judicial magistracy, … [and] the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.” The Federalist No. 87, 437 (Alexander Hamilton) (I. Kramnick ed. 1987). But they never actually had to define it, as Coke and Blackstone had done such a wonderful job of doing it for them.

By making a public official subject to removal for violating it, the condition of good behavior defined the powers of a given office. Coke listed three grounds for forfeiture of good behavior tenure: abuse of office, nonuse of office, and a willful refusal to exercise an office. R. v. Bailiffs of Ipswich [1706] 91 Eng. Rep. 378 (K.B.) (corporate recorder forfeited his office for a failure to attend corporate meetings); Henry v. Barkley [1596] 79 Eng. Rep. 1223, 1224 (K.B.); see generally, Saikrishna Prakash & Steven D. Smith, How to Remove A Federal Judge, 116 Yale L.J. 72, 88-128 (2006). Blackstone adds that "oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office [may be prosecuted] either by impeachment in parliament, or by information in the court of king's bench." 4 Blackstone, Commentaries at 140-41. Whereas an English judge could be removed by an address of both houses of Parliament, The Act of Settlement, [1701], 12 & 13 Will. 3, c. 2, §3 (providing that "Judges Commissions be made Quamdiu se bene gesserint; … but on the Address of both Houses of Parliament, it may be lawful to remove them”), conditioned their lifetime sinecures on their maintenance of good behaviour. Harvard’s legendary Raoul Berger noted that "the decided preponderance of authority, Lord Chancellor Erskine, Holdsworth, and others, consider that this provision did not exclude other means of [judicial] removal, that is, by impeachment, scire facias, or criminal conviction." Raoul Berger, Impeachment: The Constitutional Problems 157 (Harvard U. Pr. 1974) (footnote omitted).

In short, a duty to be fair and impartial was an integral part of an 18th-century English judge’s job description, as was the duty to hear every case properly brought before his court. But perhaps more importantly for purposes of this dispute, the "abuse of office" condition seriously curtails a judge’s freedom of action. The Framers envisioned judges as interpreters of the law, as opposed to Platonic Guardians. This is a simple way to remove a bad judge without his committing an impeachable offense.

[broken up here due to space limitations]

John Barron said...

Part 2 of response to Shag:

As it is tough to even imagine how a phrase intended as mere surplusage would deserve Hamilton’s fulsome praise, and it “cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it," Marbury v. Madison, 5 U.S. 137, 174 (1803), the Framers plainly intended to grant Article III judges sinecures “during good behavior,” and for that condition to mean something.

Is it a sloppy cross-reference to impeachment? Apart from the fact that the Framers just didn’t do “sloppy,” there is literally no evidence to support such a conclusion. First, as a matter of simple logic, as an English judge could be removed on address by Parliament for any reason or no reason at all, “good behavior tenure” becomes superfluous. As such, it was not a reference to impeachment under British law.

And this makes intrinsic sense. The grand purpose of Article III was to insulate judges from the vagaries of politics. But to insulate them from any accountability whatsoever would have been to create a judocracy. Good behavior tenure kept judges accountable to the people (who are the true sovereigns, holding sovereignty as tenants-in-common), but outside the reach of the other branches. Montesquieu 101.

Second, some jurisdictions (Georgia, Maryland, South Carolina, the Northwest Territory) bestowed good behavior tenure on judges without even having a provision for impeachment. Prakash at 112-13.

Third, the Constitution is built on a bedrock of agency; our public servants only possess the powers we have entrusted to them. See The Federalist No. 78 (Alexander Hamilton). Congress can only do what the Constitution empowers it to do; Article I only bestows the power to conduct impeachments. U.S. Const. art. I, § 2, cl. 5; § 3, cl. 6. The President can only appoint judges. See id. art. II. Nor can it be said that the ‘good behavior clause’ is a legal nullity. Marbury v. Madison, 5 U.S. 137, 174 (1803) ("It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it."). By default, the power to effect the ouster of a judge for violation of good behavior tenure is left in the hands of the individual citizen, as was the case in England. This view is consistent with the overall goal of the Framers: attainment of effective separation of powers. It gives judges “maximum freedom from possible coercion or influence by the executive or legislative branches of the Government," United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955), while providing for effective punishment of judicial misconduct.

There is a more detailed case to be made, if anyone cares.

COTUS literally makes no sense if the words don't mean what they meant then. There is no provision for altering their meaning to adapt to the times; that is what amendments are for.

Shag: "Although declining to so attribute, through this dignity approach, the Judiciary correctly evokes Kantian moral theory to animate the Constitution’s overarching guaranty of morality found in the liberty provisions of the Due Process Clauses."

EGAD! As far as the talking heads are concerned, law profs have to publish useless crap. It's what they do. Think of these public acts of mental masturbation as legal hurricane models, signifying nothing (waded through hundreds of them).

Scalia actually did see the train of SSM coming in Lawrence, and given that decision, he knew that there was no principled way to stop it. He had over a decade to try, and all he could muster was a limp dissent.

John Barron said...

Glad to see that someone got my shot at the Great Gasbag. Also, it is "Bugsy" Segall, mostly as a friendly shot involving our earlier debate on this topic.

Shag from Brookline said...

John provides a quote from McCulloch v. Maryland. Here is a link to a fairly recent article with the quote as its title by Scott Lemieux:

that contrasts with John's barren view. Written constitutions for nations were a fairly new concept back in 1787. So there wasn't that much precedent regarding the interpretation and construction of a constitution. Originalism is not a universal in nations that have adopted written constitutions since our Constitution.

John's cites of Madison suggest that John is of the school of original originalist, to wit, the intent of the Framers/Ratifiers. Uniform group intent was such a problem that many (but not all) original originalists abandoned intent and jumped on original understanding of Framers/Ratifiers. But that was also a group problem. So then the switch was to original meaning, demonstrated by various theories of determining original meaning, including to the mind of the "reasonably educated man" back when. This led to the first version of the "New Originalism" which came up with construction when there is vagueness in a constitutional provision to augment interpretation. Now we have the corpus linguistics approach that, like the rest of originalism, is a work in progress. The recent article referenced in my earlier comment brings in morality and incorporates the Declaration of Independence into the interpretation/construction of the Constitution. More and more, originalism seems to be faith-based.

But back to the quote from McCulloch v. Maryland: Note the reference to "we," twice. That was not "we" of "We, the People." That was "we," CJ Marshall and those other unelected guys that rarely disagreed with him. And there is nothing specific in the Constitution regarding judicial supremacy over the groups in Article I and II of the Constitution.

By the way, post-Mary Sarah Bilder, one might be a tad skeptical of Madison's notes.

Shag from Brookline said...

My 2:38 PM comment was posted before John's 1:45 PM and 1:48 PM comments appeared to me.

John cites Marbury v. Madison in his part 2. This is of course the same Madison as John had cited earlier. And the decision in Marbury arose because John Marshall, Adams' Sec'y. of State, had failed to deliver to certain justices their appointments. Adams after losing to Jefferson nominated Marshall to be CJ, whom the Senate confirmed. There seems to have been a tad of a conflict on CJ Marshall's part in not recusing himself from Marbury. John's "essays" on the role of judges/justices might be applied to CJ Marshall's failure to recuse. Based upon the conclusion in Marbury, in effect tossing the case out, many of the views expressed by CJ Marshall in the opinion constituted dicta.

And speaking failure to recuse, let me republish this ode from yesteryear:


In that duck blind
Lady Justice unveils
Her traditional blindfold
For these bonding males:
Scalia and Cheney,
Shotguns at attack,
Taking aim at Justice,

Joe said...

Prof. Segall on Twitter asked another law professor about the "question presented" in such and such a case. The professor said it depended on the brief in question. I saw this in the cake case -- I looked at different briefs and the question was phrased in noticeably different ways, changing just what the case entailed. It is my understanding there are official questions presented. Why are the briefs allowed to paraphrase them?

Donald Trump is very verbose on this comment stream.

Shag from Brookline said...

Perhaps in the cake case those briefs demonstrated lawyerly artistry.

Asher Steinberg said...

I have to admit that I stopped reading at "As I've written before."

John Barron said...

Shag: "John's cites of Madison suggest that John is of the school of original originalist, to wit, the intent of the Framers/Ratifiers. Uniform group intent was such a problem that many (but not all) original originalists abandoned intent and jumped on original understanding of Framers/Ratifiers."

I'm OPM, but this is Logic 101. At the risk of repeating myself,

"The theoretical justification for originalism rests in first principles, as stated by Abraham Lincoln: “No man is good enough to govern another man, without the other’s consent.” COTUS—as written—is the outer limit of our consent. And how can we offer informed consent, if we can’t know what we are consenting to?"

The alternative is, as Nancy Pelosi famously said about the ACA in 2010, "[w]e have to pass the bill so that you can find out what is in it."

As anyone who has perused Elliot's (or at least, read much of The Federalist and the A/F response--which means, not many lawyers) knows, the Framers' generation actually debated COTUS, going over it with a fine-toothed comb. And if there is any evidence that anyone of that era had a stomach for vesting the judiciary with any discretion, it is buried in the avalanche of contrary evidence.

You have two alternatives: either COTUS means what it says, or whatever a judge finds in his Depends. And there is NO evidence that they opted for Door #2.

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. As in all but the most exotic cases, the “law” is established, the judge was expected to be little more than an administrator, playing what Professor Llewellyn called “the game of matching cases.” Karl Llewellyn, The Bramble Bush 49 (1960). The judge’s function was viewed in terms of duties: CJ Marshall describes the judge’s willful refusal to accept jurisdiction over a case he had a duty to hear as “treason to the constitution.” Cohens v. Virginia, 16 U.S. 264, 404 (1821).

There is no contrary authority.

John Barron said...

Joe: "Donald Trump is very verbose on this comment stream."

Presenting support for your position is an unspeakable crime. You must be a federal judge--they all have ADD. Ask Posner.

John Barron said...


Power - accountability = tyranny, Shag. America is quite literally the only country in the civilized world where a judge can sit in judgment of her own tort case. That's too much for even Zimbabwe to stomach.

Marshall could have disposed of Marbury on a postcard. Bush v. Gore was a grotesque example of your Living Constitution at work, cruelly torturing the concept of equal protection beyond recognition. And as luck would have it, I actually asked Scalia to recuse on account of his misconduct in the duck-hunting case:

"When you claimed that you didn’t take a bribe, you broke the bullsh*tometers of most everyone in the legal community, as we all know that the legal value of a bribe is its value to the recipient, e.g., United States v. Gorman, 807 F.2d 1299, 1305 (6th Cir. 1986); United States v. Williams, 705 F.2d 603 (2d Cir. 1983) (business loan to Senator), and that a ride aboard a private jet is the ultimate upgrade. Still, as long as you could plausibly assert that you had a duty to sit in his case and accordingly, that he got nothing of substance for his bribe, it was a case of “no harm, no foul.”

You can’t make that claim any more."

COTUS has gone tits-up because judges have repeatedly abused their discretion for over two centuries. The Bill of Rights is literally void for want of meaningful enforcement. This blood is on your hands, Living Constitutionalists.

Shag from Brookline said...

Perhaps John misspelled the beginning of his closing paragraph at 11:26 PM so I'll edit (in exchange for his endorsement of my ode - not a bribe) as follows: "COITUS has gone tits-up ...." Over two centuries of judicial abuse! Even Heller (5-4) in the 21st century, not originalism but living constitutionalism? Time to get out the Militia of the Founders/Framers? Has the acorn (Justice Gorsuch) fallen close to the tree (his Mama of Reagan EPA fame)? Was Barron [any relation?] v. Baltimore wrong about the Bill of Rights being limited to the federal government and not the states? (As to the 1st A, the decision seems correct.) As to John's: "This blood is on your hands, Living Constitutionalists" perhaps in Vegas it is on the hands of the Heller-5 originalism led by the late Justice Scalia.

John Barron said...

First, let's talk Heller. Judge Kozinski responds:

"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. ...

But the simple truth — born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people.

All too many of the other great tragedies of history — Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few — were perpetrated by armed troops against unarmed populations. ...

The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Silveira v. Lockyer, 328 F. 3d 567, 568-70 (9th Cir. 2003) (Koz√nski, J., dissenting from denial of hearing en banc; emphasis added).

This wasn't antiseptic theory for Kozinski, who was born under the sickle of Communist Romania. I have never fired a gun in my life, but I get this. And so did the Framers, for whom this wasn't an abstract question.

I would regale you with statements from the Framers, Locke, Aquinas, Cicero, and even St. Pope John Paul II, but it would be cumulative, and like teaching a pig to sing.

John Barron said...

Now, let's get to why the Living Constitution is untenable.

If, as you aver, COTUS means whatever the judges say it means, you're going to have to live with the fact that sometimes, the other guy gets to pick the judges. Kennedy is already on retirement-watch. Ginsburg has one foot in the grave. Thomas might retire strategically. That means four FedSoc Justices -- along with Alito and Roberts -- constitutionalizing their personal preferences. And don't tell me they haven't been doing that since Rehnquist became CJ.

Abortion? GONE! Why? Because they just changed the definition of "person" ... because YOU said they can. Lewis Carroll speaks from the grave:

'I don't know what you mean by "glory",' Alice said.

Humpty Dumpty smiled contemptuously. 'Of course you don't — till I tell you. I meant "there's a nice knock-down argument for you!"'

'But "glory" doesn't mean "a nice knock-down argument",' Alice objected.

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master — that's all.'

Personally, I prefer the firebrake of originalism. It limits the mischief a gaggle of Gorsuches can get into.

The first frontal judicial assault on COTUS was in United States v. Callender, 25 F.Cas. 239 (D.Va. 1800) (Chase, J., riding circuit), wherein Chase disemboweled the Seventh Amendment, and was impeached for his effort. All downhill from there.

shag: "Was Barron [any relation?] v. Baltimore wrong about the Bill of Rights being limited to the federal government and not the states?"

No. That was the original design (every State had its own BoR). We fixed that latent defect in the CWAs.

shag: "perhaps in Vegas it is on the hands of the Heller-5 originalism"

COTUS locuta est, causa finita est. Don't like the 2Am? Amend it! (That's what I tell the religious nut-jobs, too.)

Shag from Brookline said...

It's a shame John's Mr. Smith did not get to Washington in 2016 to regale us with obscure quotes.

As to Barron [any relation, let us know] v. Baltimore, the 1st A was specific re: Congress being proscribed. But Congress was not the specific focus in 2nd-8th As. Consider COTUS' Supremacy Clause. So what if SOME states has BoRs in 1789-91.

Heller (5-4) changed the 2nd A in the 21st century from the 18th-20th century version. Heller (5-4) amended the 2nd A contrary to COTUS Article V, speaking of activist judges/justices.

By the way, what's the count on the number of times Kozinski, J decisions have been overturned by SCROTUS [sic]? [The "R" is for Republican.] But I've got the urge for a Romanian Pastrami on dark rye, with half-sours and a Dr. Brown.

John's Alice in Wonderland seems his way of reflecting, perhaps unintentionally, Trump as Humpty-Dumpty in what Trump means as that Mexican border wall and who will pay for it. When Trump has that great fall off that mythical wall, will Trump's cabinet be able to put Trump back together again?

Is anyone praying for moderation?