Tuesday, October 17, 2017

Originalism and Textualism in Action: Not Constraining and Not Neutral

by Joseph Kimble

In an August 25, 2017 blog post, Michael Dorf asked, “How Determinate Is Originalism in Practice?” His conclusion from the evidence: not very.

There followed a series of exchanges between Prof. Dorf and Prof. Lawrence Solum about sample size, alternative reasons for originalists’ ideologically conservative results (such as the need to sometimes compromise with the nonoriginalist justices), the reluctance of progressives to make originalist arguments, and other counters to Prof. Dorf’s conclusion. In the end, I thought his conclusion stood up: while you might expect originalism to lead to moderately conservative results, the decisions of Justices Scalia and Thomas are anything but. Even without data, it’s “blindingly obvious” (as Prof. Dorf puts it) that their decisions are overwhelmingly conservative. Originalism does not constrain.

And neither does its companion, textualism. Here the empirical evidence is compelling, if not incontrovertible.

A central principle of both originalism and textualism is the “fixed-meaning canon,” as Justice Scalia and Bryan Garner call it in their book Reading Law (p. 78): “Words must be given the meaning they had when the text was adopted.” Textualism, the authors assert (p. xxviii), “will curb — even reverse — the tendency of judges to imbue authoritative texts with their own policy preferences.” And the authors inveigh against (p. 16) “the slander that [textualism] is a device calculated to produce socially or politically conservative results.” Rather, “[a] textualist reading will sometimes produce ‘conservative’ outcomes, sometimes ‘liberal’ ones.”

However true that may be in theory, it is not true in practice — especially in the cases that matter.

In a 2015 article (pp. 30–35), I summarized six empirical studies: four show a strong ideological bent in Justice Scalia’s opinions; one other concludes from an analysis of over 600 Supreme Court cases that the textual canons of construction “are regularly used in an instrumental if not ideologically conscious manner”; and the last one concludes that the constraining effect of originalism “is overstated at best and illusory at worst.” Could all these studies have been wrong or flawed?

In that same article (p. 35, note 96), I cited 11 other scholarly sources that cast doubt on the neutrality and consistency of Justice Scalia’s textualism.

If you want one more piece of empirical evidence to add to the pile, I offer my recent article on overrulings by the Michigan Supreme Court between 2000 and 2015. The court’s majority for almost all that time consisted of justices who were nominated by the Republican party or appointed by a Republican governor. All of them were exponents of textualism. And since they were the majority, they did not need to compromise.

I did a detailed study of 96 (!) overrulings by the court during those years. I coded the civil cases according to whether they made it harder to sue and recover or get relief, or made it easier to sue. I coded the criminal cases according to whether the overruling favored the prosecution by making it easier to convict, harder to get a charge dismissed, harder to appeal, harder to get a resentencing, and so on — or whether the overrulings favored the defendants in some way. Of the 96 overrulings, 15 did not fit these categories, leaving 81.

The results would not have surprised Michigan lawyers, but they ought to shock everyone else. In 46 of 48 civil cases, Republican majorities voted in a way that makes it harder for plaintiffs to successfully sue. (Think tort reform.) In 32 of 33 criminal cases, Republican majorities favored the prosecution. In all: civil plaintiffs and criminal defendants lost in 78 of 81 overrulings, for a conservative ideology rating of 96.3.

You can argue about rough measures. You might quibble with a few of the codings. But you can hardly deny the general import of those numbers: they cannot be rationalized by any jurisprudence that’s evenhanded. And if you were to argue that the court was simply correcting an ideological tilt of previous courts (majority decisions going back decades and even centuries), that in itself would be an argument grounded in policy, not text.

Incidentally, I examined four of the overruled cases to show how close they were and how the disputed language was not nearly as clear and plain as the textualist majority claimed. It staggers credibility to think that previous majorities could have misread text so many, many times.

The upshot is this (p. 376): “In practice, textualism has devolved into a vehicle for ideological judging — disguised as deference to the legislature. The numbers in Michigan, though, blow its cover.”


Shag from Brookline said...

A recent article by Randy Barnett and another addresses the "Construction Zone" of the "New [or Newer?] Originalism. If original public meaning cannot be ascertained from the text, Randy et al enter the "Construction Zone" seeking the "spirit" of the text when it came into effect. It is no easy task determining the original public meaning when there is no need to enter the "Construction Zone." Just look at the Heller (5-4, 2008) majority and minority attempting to apply originalism to the 2nd A. Heller apparently was not in the "Construction Zone," rather perhaps in a constitution "Twilight Zone." So how does one, when in the "Construction Zone," conjure up the "spirit" back when? Is there a constitutional ouija board or a crystal ball that Barnett et al can seance to raise that "spirit" back when?

The evolution of originalism that led to the "New Originalism" and its "Construction Zone" resulted from the many effective challenges of earlier versions of originalism. But critics of the "New Originalism" pointed to defects/weaknesses in the "Construction Zone." In the spirit of rebutting these critics by bringing in the "spirit" back when by Barnett et al may lead to a sinkhole in the "Construction Zone."

Joe said...

ought to shock everyone else. In 46 of 48 civil cases, Republican majorities voted in a way that makes it harder for plaintiffs to successfully sue

Captain Renault: I'm shocked, shocked to find that gambling is going on in.

Kagan just gave an interview at Chicago-Kent College of Law and said "we are a generally, fairly textualist court." Be interesting to see how different justices decided by using that technique & if there were some differences (like originalism, betting there is especially with different rules of textual interpretation that might in such and such a case lead to different results depending on what one you use).

John Barron said...

Wonder if my views will get censored into the ether again....

Where it matters, the 2Am is pellucid: "the right of the people to keep and bear Arms, shall not be infringed." There is significant British history behind it--Catholics were debarred the use of arms. Surveying the world as it was, the Framers fairly deduced that an armed citizenry was a meaningful deterrent to tyranny; the debated and enacted this provision. As such, those who invoke it are entitled to have it apply.

Gun-grabbers are the LW equivalent of the anti-abortion crowd: unable to extinguish the right, they endeavor to regulate it out of existence. The question controlling both of the controversies is whether roadblocks can be SO onerous that you reduce that right to an abstraction.

And of course, the hypocrisy that only a LC aficionado can muster is on florid display. To the religious zealots, no burden on abortion is too onerous ... but don't you DARE touch their guns! Their LW counterparts are every bit as absolutist ... except when it comes to abortion. The thought that just maybe, both are in the wrong, is anathema.

Whereas originalism is ruthlessly rational, judges are relentlessly dishonest. Whereas there is a "right" way to resolve a case or controversy, Scalia never let originalism, textualism, or even the precedent or scholarship he created get in the way of what was obviously his outcome-based jurisprudence.

Originalism is, in a sense, "working itself pure." By contrast, the LC has earned more than its share of derision, now that its advocates are subjected to the jurisprudential stylings of Neil Gorsuch and Don Willett, and they have no principled basis on which to object.

Michael C. Dorf said...

Just for the record, in response to John Barron: I don't have any idea what you mean when you express the concern that your views will be censored. I only ever remove material that is clearly spam or that threatens violence. You might have had the experience of attempting to post a comment on a post more than three days after it went up. I don't allow comments at that point because I've discovered that after a few days, mostly spam comments appear. But you can rest assured that I, as the administrator of the blog, am not censoring you into the ether or anywhere else.

Joe said...

On the clarity of the 2A etc. ....


Donald Trump might disagree.

Asher Steinberg said...

Professor Kimble,

I very much like your work; I think we've corresponded about last antecedents and Paroline. I think you and Dorf are begging a rather large question when you speculate that accurately applying oriignalism to a constitution written in 1787 by a cabal of landed slave-owners should only lead to "moderately conservative" results. That wouldn't be my intuition. (It wouldn't even be my intuition that interpreting the Reconstruction Amendments in an originalist way should lead to what we would *today* call moderately conservative results, though of course these were very "progressive" amendments for their time.) But bracketing that issue, your article on these 96 overrulings, unless I'm misunderstanding it, in no way limits its sample to cases that actually interpret statutes or state or fedearl constitutional provisions. Indeed, you say that most of the 59 civil cases you counted were tort cases. You say that these overrulings were rendered "in the name of textualism," but some of these tort cases you talk about sound like they're doing pure common-law tort law. Others overrule common-law discovery rules and held that the state's limitations statutes were exclusive, which is perhaps as much of a decision about how to do common law as it is a decision about how to read those statutes.

Besides that, I guess I take issue with a sample of cases that only looks at overrulings as evidence of how neutral or constraining originalism or textualism are. Overrulings tend to be harder cases that are more likely to divide courts along ideological lines, and as a matter of the law of precedent, there's some justification for their doing so. Courts don't necessarily overrule a case just because they think it legally wrong, as an original matter of interpretation, and aren't supposed to, especially where statutes are concerned; it takes a little more, often some normative or pragmatic concern of unworkability, to justify overruling precedent, especially statutory precedent. Whether judges see that normative something more will of course largely turn on ideology. Of course, you know much more than I about stare decisis as understood by the courts in Michigan, and I may be entirely mistaken in assuming that in Michigan, merely believing a decision misinterpreted a statute isn't sufficient grounds to overrule it.

Shag from Brookline said...

John states categorically:

"Surveying the world as it was, the Framers fairly deduced that an armed citizenry was a meaningful deterrent to tyranny; the debated and enacted this provision. As such, those who invoke it are entitled to have it apply."

might have a typo: the first word of the second clause "the" perhaps was intended to be "they" or "then." The Framers of the 1787 Constitution were concerned with insurrections. The Militia clauses of the 1787 Constitution addressed means of responding to insurrections. But where in the 1787 was there a provision for an armed citizenry to address tyranny by the federal or a state government? There was of course no bill of rights in the 1787 Constitution, perhaps to the objections of some of the Framers. In the ratification process, anti-federalists in some of the state conventions raised issues of a bill of rights, including with regard to arms. The 1787 Constitution was ratified without any changes, although there were indications by some of the Framers that consideration would be given to a bill of rights.

In 1789, Congress came up with a bill of rights that included the 2nd A. Madison played a significant role in coming up with the language of the bill of rights and in particular the 2nd A, taking into consideration concerns expressed by some in the course of the ratification process to the 1787 Constitution that touched on arms. The Militia clauses of the 1787 Constitution were not amended by Congress's bill of rights. In fact, the prefatory clause of the 2nd A made reference to the importance of the Militia. The bill of rights went through the ratification process becoming effective in 1791. I am not aware that the proceedings before Congress on the bill of rights and the bill's ratification of the 2nd A addressing a right to keep and bear arms by people for purposes of challenging what such people might claim to be tyranny on the part of the federal or state governments. I'm not aware of detailed references to the 2nd A in the ratification process of the bill of rights. However, the very extensive ratification process of the 1787 Constitution did contain some comments on arms that were available to Congress to consider in 1791.

So I'm not sure of what the Framers surveyed regarding what John claims the Founders deduced. As to John's claim of an individual right under the 2nd A being pellucid, it took over 200 years for the light to pass through, of course by ignoring the 2nd A's prefatory clause. John, with his later criticism of Scalia as a textualist/originalist, suggests Scalia might have delivered in Heller " ... what was obviously his [Scalia's] outcome-based jurisprudence."

[I don't have a day job, so this may be a long way to Tipperary aka Moderation.]

Samuel Rickless said...

Thank you for this post. I read your 2015 article with interest. (I haven't yet had time to read the more recent piece.) I think you are right about the last antecedent canon, both that it is essentially a linguist's fiction and that it conflicts with other canons in ways that are, from the textualist point of view, indeterminate. But, like Asher (though perhaps not for the same reasons), I worry about the probative value of the empirical studies. They are certainly suggestive, but, as I see it, they are the beginning, but not the end, of the discussion over whether canon-driven textualism (or public meaning originalism, or whatever you want to call it) is sufficiently constraining. Canon-driven textualism recognizes that language is sometimes vague, sometimes ambiguous (or polysemous), sometimes context-sensitive, sometimes all of these at once. One would expect that the vast majority of cases that show up on appeal, especially on the SCOTUS docket (which often decides circuit splits), would be those that exemplify the kind of vagueness or ambiguity or context-sensitivity in which the various canons that are typically used to resolve these problems conflict or are indeterminate with respect to application. To use a common term that Shag used above, one would expect the vast majority of appeals court level cases to belong in the construction zone. But these cases are a small percentage of all cases that are decided by state/federal judges, even focusing solely on those cases that are decided on federal/state constitutional grounds. So even if you are right about the cases that come up in the studies you mention, that still leaves a huge number of cases that, for all that empirical evidence you mention shows, are decided quite easily using textualist methods.

I also think that you might want to be a little more careful about placing as much weight as you do on legislative purpose, as revealed by legislative history, as a tool of interpretation/construction. This is not so much because of the standard criticisms of the use of legislative history you mention, but because the appeal to democracy (self-rule) that lies behind the use of legislative history can be countered, as Justice Scalia suggests, by appeal to the rule of law value of notice. (Justice Scalia characterizes notice as a "democratic" value, but that's erroneous.). The problem is that it is unreasonable to expect the typical person to whom a law applies to be familiar with the law's legislative history, and placing such an expectation on the typical person is excessive as a condition of being governed by law.

Joseph said...

Big caveats: I have not yet read your article nor am I familiar with Michigan's laws/constitution.

"You can argue about rough measures. You might quibble with a few of the codings. But you can hardly deny the general import of those numbers: they cannot be rationalized by any jurisprudence that’s evenhanded."

I don't know what numbers would indicate "evenhanded" justice. If we are to generally accuse (or characterize) Republican-nominated judges of taking a more constrained approach to reading the law and Democrat-appointed judges of taking a more capacious approach, I think the results are not surprising. If the text is consistently read according to non-ends oriented principles (albeit the central dispute here) then we should applaud the consistency of judges, if nothing else.

In skimming the beginning of your article, I see that you are treating lower court decisions as having high stare decisis value, essentially akin to a decision by the Michigan Supreme Court itself, as you explain. However, it's not clear if the basis for this proposition "seems" to be the accepted principle in Michigan law or merely seems to you to be a reasonable proposition. (Both of my caveats directly relevant here.)

Setting aside the significance of the MI Supreme Court overruling the lower courts, your study suggests a significant divide between the R-appointed Supreme Court judges and the lower court judges. That appears more striking to me than the possibility that a majority of judges consistently construe laws based on a general philosophy they share.

Again, I am only addressing the apparent import of the numbers. As you write on this blog, your examination of 4 cases suggests the language not as easily read as the majority claims. Until I read the article, I can't opine on that. And in so reading it may clear up confusion on this sentence:

"It staggers credibility to think that previous majorities could have misread text so many, many times."

It's not clear here whether you are referring to the Supreme Court overturning its own well-established precedents or instead alluding to the court not previously overruling lower courts decisions on the matters (that you consider binding precedent on the Supreme Court).

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Hashim said...

In addition to asher's points, assuming the Michigan supreme court has discretionary cert jurisdiction, it's neither surprising nor inconsistent that conservative judges would exercise their discretion disproportionately to reverse erroneous results that are liberal rather than conservative. That doesn't say much about how they would rule if they had mandatory appellate jurisdiction over erroneous conservative results. Finally, it also shouldn't be at all surprising that textualists would think that nontextualists had "misread the text so many many times", because the whole point is that textualists don't think nontextualists are reading the text at all, or even trying to (and some nontextualists admit as much). It'd be surprising if conservative textualists reversed true liberal textualists a lot, but it's not surprising if they consistently reverse liberal nontextualists or fake textualists.

John Barron said...

Shag, your arguments would be far stronger if (1) you could cite to actual remarks by the Framers in support of your position, and (2) your opponents hadn't compiled a list of countervailing quotations that reads like a Brandeis brief.

Read in pari materia, the remarks of the Framers' generation reflect the understanding that the "right of revolution" is an essential corollary of the right to self-defense.

Shag: "The Framers of the 1787 Constitution were concerned with insurrections. The Militia clauses of the 1787 Constitution addressed means of responding to insurrections. But where in the 1787 was there a provision for an armed citizenry to address tyranny by the federal or a state government?"

Obviously, you look toward the state constitutions. By way of example: "Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind." N.H. Const. art. 10 (1794) [Right of Revolution].

The Federalist dealt with this, as well: "If the representatives of the people betray their constituents, there is then no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual State. In a single State, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair." F28 (Hamilton).

"[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms." F46 (Madison).

"What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms." [Thomas Jefferson, 1787]

"Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?" 3 Elliot, Debates 45 (stmt. of Patrick Henry).

There is no contrary authority.

The Framers saw the right of self-defense as indefeasible, and the right to revolution as a collective expression of that right. The militia was regarded as the best defense against tyranny, but as Hamilton noted, there were limits as to its effectiveness. You see the 2Am as an anachronism that doesn't translate well to modern society; there is a strong argument to be made for that position. But we have to interpret the COTUS we have, as opposed to the one you might prefer.

Joe said...

As to legislative history and purpose, many cases involves the government applying laws, and yes, I think the government can be expected to at least factor that in (and that is all it is, a factor). Ditto business, who has nice lawyers and all, who advise them. If we are talking about the average Joe Smoe, they probably aren't too aware of the legalistic nuances of many statutes as is, so fair notice there can be taken a bit far too. This includes various textual rules of interpretation.

Anyway, reliance other than text is generally but part of a wider whole here.

Shag from Brookline said...

I'm anticipating a long slog before Moderation sets. Here's a start to John's 9:17 AM comment.

Here's the start of a website talking about the Framers of the Constitution:

"The original states, except Rhode Island, collectively appointed 70 individuals to the Constitutional Convention. A number of these individuals did not accept or could not attend includes Richard Henry Lee, Patrick Henry, Thomas Jefferson, John Adams, Samuel Adams and, John Hancock. In all, 55 delegates attended the Constitutional Convention sessions, but only 39 actually signed the Constitution. The delegates ranged in age from Jonathan Dayton, aged 26, to Benjamin Franklin, aged 81, who was so infirm that he had to be carried to sessions in a sedan chair."

There is a record of the Constitutional Convention. I don't recall a discussion reported on a right to keep and bear arms. The 1787 Constitution had Militia clauses, addressing the state level and certain rights/powers of the central government regarding state militias. There was an insurrection clause, which Framers from the slave states needed for protection of slavery from insurrections by slaves. Can John point to any provision in the 1787 Constitution specifying an individual right regarding arms to challenge tyranny by a state or the central government? Clearly the 1787 Constitution did not have such a clause.

As to the Federalist Papers, I understand that they were the products of three of the Framers, primarily Hamilton and Madison. I'm not aware that their views expressed in the Papers were the views of all or a majority of the Framers participating in the Constitutional Convention. There has been much analysis over the years of the Federalist Papers, which were written to induce ratifiers to accept the 1787 Constitution as presented, not to have amendments offered, which would slow down the process of establishing a central government, something the Articles of Confederation did not provide for that triggered the Convention. Some Anti-Federalists complained that the 1787 Constitution did not include a bill of rights. Madison had expressed the view that he didn't feel a bill of rights was necessary, believing that the Constitution would provide such rights. But to assure ratification, it was made clear that after ratification consideration would be given to a bill of rights.

In some of the states ratification proceedings revealed some concerns of Anti-Federalists concerning arms. These concerns were made available to Congress following ratification. The PA proposal on arms was the strongest of those few states concerned on arms. Madison in Congress eventually came up with the 2nd A language, basically ignoring the broad PA proposal. I'm not aware that the ratification process of the bill of rights adopted by Congress challenged the wording of the 2nd A, in particular the prefatory clause about the importance of a well-regulated Militia. Madison's Federalist Papers quote provided by John was written prior to ratification of the 1787 Constitution and comports with the Militia Clauses of the 1787 Constitution.

[To be continued.]

Joe said...

In honor of "Persons' Day"


Has some relevance per Shag's latest.

John Barron said...

A website, shag? I AM impressed! [/sarcasm]

The Federalist was mostly written by "the Father of the Constitution," and has been given appropriate weight. But if you don't supplant it with the A-F, Elliot, Farrand, the Annals, the works of Wilson and Adams, and background material such as Blackstone, Hobbes, Locke, and Montesquieu, you aren't going to get a clear picture.

There isn't a colorable warrant for the meaning that you attach to the 2Am--certainly, not in the Annals. Besides, even if the provision were ambiguous, the meaning that is most consistent with its purpose controls. A judge must always “make such construction [of a law] as shall suppress the mischief, advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief … according to the true intent of the makers of the act," Heydon's Case [1584] 76 Eng. Rep. 637 (K.B). The natural law right to self-defense is meaningless without the means to do so, and any reading of the 2Am that does not account for that is absurd on its face.

Rather by definition, prefatory clauses carry no intrinsic legal weight.

Way back in LS, I was taught that you need to own your bad facts. Scalia got it right in Heller, regardless of whether it is wise policy for today.

John Barron said...

Shag: "Can John point to any provision in the 1787 Constitution specifying an individual right regarding arms to challenge tyranny by a state or the central government?"

For patently obvious reasons, I wouldn't expect to find one. In introducing his draft of our Bill of Rights to the House of Representatives, Madison explained that he consciously avoided attempting to enumerate all the rights retained by the people, arguing that

….by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

1 Annals of Congress 456 (1789) (remarks of Rep. Madison).

The clause Rep. Madison refers to reads as follows:

"The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”

Id. at 452.

This is the Rosetta Stone for interpretation of our modern-day 9/10Am. While the Ninth doesn’t create rights, it is a constitutionally mandated canon of construction, prohibiting judges from interpreting the Constitution in any manner that would "deny or disparage [unenumerated rights] retained by the people," U.S. Const, amend. IX, and the Tenth is an express reservation of powers to "the States respectively, or to the people." Id. amend. X. Originalism 101.

I'm saying that "it's in there," and telling you why from Madison's own utterances, Satisfied?

Shag from Brookline said...

John, as I understand the pellucid view of the 2nd A you claim, per Heller and otherwise, is that there is an individual right with respect to arms not only for self defense but to address tyranny on the part of the central or a state government. (Heller (5-4) was limited to certain arms in the home for self defense.) Self defense can include the defense of others. Challenging tyranny with arms may include self defense (including the defense of others) as well as principled civic purposes. Your view, as I understand it, might suggest that an individual working in the Executive Branch who is aware that certain Executive actions to be taken are in his view tyrannical and might injure/kill innocent persons could rely upon the 2nd A regarding the use of arms to challenge that tyranny. (I'm thinking of a Dr. Strangelove scenario.)

Perhaps in your view the Civil War that resulted from actions taken by the seceding states was the Confederacy's response to tyranny of the federal government and thus a right protected by the 2nd A.

John, the post for this thread criticizes originalism. My initial comment was also critical of originalism, using the example of Heller's majority and dissent. You have claimed to be an originalist of the original public meaning variety. My comment focused on the New Originalism and its "Construction Zone." I don't know for sure if your originalism follows the New Originalism. Your reference to the "Rosetta Stone" being outside of the four corners of the 1787 Constitution as amended by the bill of rights might suggest that you are at heart an original intent originalist.

Regarding whether I am satisfied by what Madison said, perhaps we should discuss Mary Sarah Bilder on Madison's Notes.

By the way, here's the URL for the website I referenced in an earlier comment:


Joe said...

Shag is debating with Donald Trump again.

John Barron said...

Did it to harass Dolt45, back in the day. Everywhere else I go, I'm "LawDog," but I've never bothered to figure out how to undo it. C'est la vie....

I utterly despise The Great Gasbag.

John Barron said...

Okay, let's put your ridiculous Bilder canard to bed.

When I cite Madison, it is generally limited to the Federalist or other third-party such as Gale & Seaton's or Elliot's. I place zero reliance on his Notes, except on a grander scale (e.g., Washington's recommendation to limit Congressional district sizes, which is reflected in the original 1Am). Why? The Framers intended that there be no legislative history.

When he wrote a letter to Jefferson, we can read it in his own hand. Whenever he made a speech in Congress or in one of the state conventions, someone wrote it down (albeit not necessarily verbatim, but the error rate is presumed to be low). Either way, he had no opportunity to revise his remarks. Your unimaginative attempt to smear the man fails miserably.

So, why should anyone give a shat about Bilder? We can stipulate to her findings, but my analysis would not be affected in even the slightest degree.

John Barron said...

shag: "You have claimed to be an originalist of the original public meaning variety. My comment focused on the New Originalism and its "Construction Zone." I don't know for sure if your originalism follows the New Originalism. Your reference to the "Rosetta Stone" being outside of the four corners of the 1787 Constitution as amended by the bill of rights might suggest that you are at heart an original intent originalist."

Let me see if I can correct your misapprehension.

The 9Am provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This tells us that there is no legal distinction between enumerated and unenumerated rights -- and that in their view, rights were not bestowed by governments, but retained by the people. And one of those retained rights, as enumerated in Blackstone and elsewhere, is the right to self-defense.

If there was any doubt on this score, Madison's speech laid it to rest.

The originalist is often forced to resort to extrinsic sources such as the pre-existing common law to define terms. What does "good Behaviour" mean? English law defines it-- and who may enforce it--with remarkable precision.

Originalism is "working itself pure." Think of scientists refining AGW models. This is a strength of the theory--it is not lost in dogma. Barnett and Solum tend to get lost on rabbit trails; it's what lawprofs do.

This is the C.P.A. in me: I look for systems and safeguards. (And no, you don't play the audit lottery when there is a 100% chance of winning.) No sane person would enter into a contract where the words have no meaning. This is the fatal flaw of the LC, which you have no coherent answer to.

John Barron said...

How you view the Civil War depends on what COTUS is. If it is merely a treaty between co-sovereigns, international law governs unless the treaty says otherwise. Thereunder, any party can denounce the treaty and walk away.

Ergo, Lincoln was legally in the wrong.

Whether I think the South should have seceded is beside the point. "Law" is more about what you can do than what I might think you ought to do.

If arguendo, the North was the aggressor, the South was fully within its rights to use lethal force to expel Northern forces.

Some times, originalist analysis won't give you the answer you want. We accept that; you want to bend COTUS to your will. And I take perverse delight in your theory being used against you. Four more Gorsuches, with unlimited discretion? You made your bed, and you will have to lie in it.

For you LC types, COTUS means whatever you need it to mean on a given day; if you say the compact is unbreakable, then it is. But are you sure that we couldn't let the Gulf Coast states go? Tired of supporting those welfare queens! :)

Shag from Brookline said...

So I guess, John, you're a cafeteria or Humpty-Dumpty originalist.

By the bye, the law prof. originalists of the various strands of originalism (that continues to evolve) featured at the Originalism Blog, the Legal Theory Blog and the VC think of the late Justice Scalia as foundational to originalism. Your several disagreements on Scalia have been note in this and prior threads.

And, John, you may have cunning skills in your C.P.A role but not in linguistics regarding the prefatory clause of the 2nd A. The Militia was still active in 1791 and for decades beyond.

Further by the bye, the link Joe provided included an interested exchange between Scalia and an interviewer, with Scalia explaining away and faint-heartedness on his part when it came to originalism. Maybe feint-hearted would have been more accurate. But it seems while you are skeptical of Scalia's originalism, you seem to accept it in Heller (5-4), a change in the understanding of the 2nd A that came about over 200 years after the bill of rights was ratified.

Query: Does originalism require that any unenumerated rights were fixed back in 1789 or 1791? Or can new unenumerated rights surface at any time?

Is your displeasure with Trump based upon the name of his young son?

Still further by the bye, I have not smeared Madison. Madison like many of the Framers was not perfect. But he was able to keep Patrick Henry from succeeding in his Anti-Federalist role of challenging the Constitution from ratification. Patrick still kept his liberty for a few years.

John Barron said...

Prof. Kimble: "In the end, I thought his conclusion stood up: while you might expect originalism to lead to moderately conservative results, the decisions of Justices Scalia and Thomas are anything but. Even without data, it’s “blindingly obvious” (as Prof. Dorf puts it) that their decisions are overwhelmingly conservative. Originalism does not constrain.'

When reflecting on remarks like these, I'm reminded of a Chesterton quip: "Christianity has not been tried and found wanting; it has been found difficult and not tried." Even Barnett admits that on the Court, Scalia was almost as faithful to his originalism as Tiger Woods was to ex-wife Elin. See, Randy Barnett, Scalia's Infidelity: A Critique of Faint-Hearted Originalism, 75 U. Cin. L. Rev. 7, 13 (2006).

John Barron said...

Christ on a crutch! Where do I start?

shag: "But it seems while you are skeptical of Scalia's originalism, you seem to accept it in Heller (5-4), a change in the understanding of the 2nd A that came about over 200 years after the bill of rights was ratified."

Objection, assuming facts not in evidence. You keep pulling the same shat out of your ass, and the aroma does not improve.

For reasons already stated, it is my position that Scalia got it right, and you have produced NO evidence to refute it.

shag: "I have not smeared Madison."

What is the color of the sky in your world? Chartreuse? The entire purpose of bringing up Bilder was to cast aspersions on his veracity, and we both know it.

shag: "So i guess, John, you're a cafeteria or Humpty-Dumpty originalist."

More like, you have more straw than a factory farm will ever use. My originalism is both clear and clearly grounded in first principles, your desperate attempts at obfuscation notwithstanding.

shag: "the late Justice Scalia as foundational to originalism."

Bork did the heavy lifting.

"The subject of the lengthy and often acrimonious debate about the proper role of the Supreme Court under the Constitution is one that preoccupies many people these days: when is authority legitimate? I find it convenient to discuss that question in the context of the Warren Court and its works simply because the Warren Court posed the issue in acute form. The issue did not disappear along with the era of the Warren Court majorities, however. It arises when any court either exercises or declines to exercise the power to invalidate any act of another branch of government.

The Supreme Court is a major power center, and we must ask when its power should be used and when it should be withheld. Our starting place, inevitably, is Professor Herbert Wechsler's argument that the Court must not be merely a "naked power organ," which means that its decisions must be controlled by principle.' "A principled decision," according to Wechsler, "is one that rests on reasons with respect to all the issues in a case, reasons that in their generality and their neutrality transcend any immediate result that is involved." ...

But this resolution of the dilemma imposes severe requirements upon the Court. For it follows that the Court's power is legitimate only if it has, and can demonstrate in reasoned opinions that it has, a valid theory, derived from the Constitution, of the respective spheres of majority and minority freedom. If it does not have such a theory but merely imposes its own value choices, or worse if it pretends to have a theory but actually follows its own predilections, the Court violates the postulates of the Madisonian model that alone justifies its power. It then necessarily abets the tyranny either of the majority or of the minority.

This argument is central to the issue of legitimate authority because the Supreme Court's power to govern rests upon popular acceptance of this model. Evidence that this is, in fact, the basis of the Court's power is to be gleaned everywhere in our culture. We need not canvass here such things as high school civics texts and newspaper commentary, for the most telling evidence may be found in the U.S. Reports. The Supreme Court regularly insists- that its results, and most particularly its controversial results, do not spring from the mere will of the Justices in the majority but are supported, indeed compelled, by a proper understanding of the Constitution of the United States. Value choices are attributed to the Founding Fathers, not to the Court. The way an institution advertises tells you what it thinks its customers demand."

Scalia's contribution was in observing that channeling the minds of the Framers was an inherently futile endeavor, and that the LC grants no legitimacy.

John Barron said...

Shag: "Does originalism require that any unenumerated rights were fixed back in 1789 or 1791? Or can new unenumerated rights surface at any time?"

Asked and answered. More than once.

Shag from Brookline said...

My favorite saloonkeeper in downtown Boston would constantly engage his professional stool occupiers lauding their credentials, including C.P.A.s (periods included to appease the sensitive] with the vaudeville days' line: "Yes, he's a C.P.A., cleaning, pressing and alterations." The "alterations" clearly apply to John's comments. (For equal time, my favorite saloonkeeper reminded all that "Lawyers have a license to steal." That was back in the old LLB, pre-JD days.)

But john, your 11:08 PM moot court desperate student response "Asked and answered. More than once." is challenged: point to comments by time to back this up. I asked those questions just once (my 7:48 PM comment) and, John, you never answered even once.

As to Bork, He was an original intent guy. It wasn't Scalia, rather a BU Law conlaw prof who put the dagger in original intent. Can you guess his name?