Friday, November 10, 2017

Scalia Speaks Well: But Not About Originalism

By Eric Segall

Justice Antonin Scalia lived a large life. There is no denying his remarkable ability to give speeches that dazzled those in attendance. His son Christopher Scalia and Ed Whelan have collected and published many of these speeches in their new book "Scalia Speaks: Reflections on Law, Faith, and Life Well-Lived." These talks, given around the world, provide the reader a wonderful account of Scalia the person, the philosopher, and the judge. On just about every topic, small and large, with one major exception, Scalia entertains, informs and energizes. My perspective is the same as other reviewers on this point so I will not elaborate further on the positive aspects of most of these fine speeches.

If the reader is looking for a strong justification for originalism in these speeches, however, she will be disappointed. The speeches on that topic, sadly, are cliche ridden, assume facts not in evidence, and most importantly, do not address the major issue many legal scholars had with Scalia's strong originalist stance--that he did not adopt that stance himself. Scalia's hypocrisy on the subject, the disconnect between what he practiced as a judge and what he preached off the Court and in dissent, is as large as the life the man lived.

I understand that this collection of speeches was not intended to present a full throttle defense of Scalia's views on either constitutional interpretation or originalism. Nevertheless, the editors did a wonderful job selecting those speeches that comprehensively, or at least accurately, cover Scalia's views on the topic. Moreover, although the speeches on such diverse topics as "Being Different" and 'The Arts" are wonderful, Scalia after all will be remembered most for his dogmatic views on judging and proper constitutional analysis. This post, therefore, focuses on how the collected speeches handle those topics.

Scalia's defense of originalism comes through in several of the selected speeches in the book. The most important of these is a speech he titled "Interpreting the Constitution" which he delivered in 1994 at the Parliament House in Sydney, Australia.

Justice Scalia believed that "the provisions of the Constitution have a fixed meaning, which does not change: they mean today what they meant when they were adopted, nothing more and nothing less." Despite this rigidity, however, Scalia conceded that this "is not to say . . . that there are not new applications of old constitutional rules." As examples of  these old rules and new applications, Scalia pointed to new technologies implicating the freedom of speech such as sound trucks and television. He agreed that some times applying old rules to new facts requires "the exercise of judgment," but that is a "far cry from saying what the non-originalists say: that the Constitution changes; that the very act which it once prohibited it now permits, and which it once permitted it now forbids."

Scalia said in this speech, as he often did over the years, that, even though originalism is far from perfect, he only had to show that the theory was better than its competitors. And he tried to show this superiority by arguing that non-originalists didn't have a competitor--that there is "no agreement upon what criterion of constitutional meaning should replace [originalism]." According to Scalia, non-originalists "explode into a hundred different groups, or indeed as many groups as there are academics.... The fact is that no principle of interpretation other than originalism has even the shadow of a chance attracting a general adherence. As a practical matter, there is no alternative to originalism but standardless judicial constitution-making."

The examples of non-originalist decisions Scalia pointed to in this speech reflected views he expressed throughout his career. He criticized New York Times v. Sullivan for federalizing libel law; Miranda v. Arizona for the exclusionary rule; Lee v. Weisman for striking down prayers at high school graduation ceremonies, and of course Roe v. Wade for protecting a women's right to terminate her pregnancy. Scalia argued that these cases, and many others, did not reflect a study of text and history but rather evidenced a theory that allows judges to "decide what a Constitution ought to say" instead of "what a constitutional text means." But, what a Constitution "ought to say' is "not a job for lawyers but for the people."

These justifications for originalism either do not support Scalia's arguments or represent rules of interpretation that he violated consistently throughout his career.

Everyone agrees that the First Amendment's text is broad enough to reach new technologies that did not exist in 1791. But the hard questions raised by the amendment, for example whether states may impose mandatory fees on public sector unions, or what constitutes a true threat on the internet, cannot be answered through originalist analysis, and when it came to such cases, Scalia did not use an originalist approach. As Professor Michael McConnell has said, "free speech has been kind of a desert when it comes to originalism." Although Scalia proudly used some of his free speech decisions, such as his vote in the flag burning cases, to demonstrate that he did not always vote his priors, the reality is that much of Scalia's First Amendment jurisprudence was notoriously non-originalist.

In a speech titled "The Freedom of Speech," Scalia argued that Sullivan's "malice" standard for defamation of public officials is an example of improper living constitutionalism. Although libel is speech, according to Scalia, as is obscenity, neither is part of "THE" freedom of speech protected by the First Amendment because there were several categories of speech that the founding generation did not think were included in "THE" freedom of speech. Other such categories, according to Scalia, included conspiracy, bribery, and fighting words. Scalia argued that the government should be able to regulate all of these types of speech because the founding fathers did not deem them to be part of "THE" freedom of speech.

The problem with all this is that Justice Scalia throughout his career voted to strike down pure commercial speech laws without stopping to consider whether that kind of speech was part of "THE" original freedom of speech. For most of our country's history, until the 1970's, the Supreme Court did not consider commercial speech part of the original conception of speech. As Dean Vik Amar has noted, "there is little to suggest that intelligent and informed folks" in 1787 or 1868 would have applied First Amendment protections to pure commercial speech. Furthermore, Scalia couldn't make a textual argument to support his non-originalist decisions on commercial speech because he rejected Justice Black's arguments about the First Amendment on the grounds that the amendment was not intended to protect all speech, just "THE" speech that was protected as an original manner.

Justice Scalia argued that Supreme Court decisions federalizing abortion law and the death penalty were the results of Justices trying to make the Constitution the best it could be, not what it actually meant. The problem is that throughout his career Scalia also engaged in such constitutional wishful thinking, and not just with commercial speech.

Justice Scalia argued vehemently for a "color-bind" interpretation of the Fourteenth Amendment and voted to strike down every affirmative action statute he ever reviewed on that basis. No doubt Scalia felt strongly about color-blindness, but as many others have argued, neither the text nor history of the Amendment supports such an interpretation. The word "race" never appears in the Amendment, and there is ample evidence that the people in 1868 never imagined they were outlawing all racial distinctions. Furthermore, the federal government employed racial distinctions in many post-Civil War laws. For Justice Scalia, the requirement of color-blindness was simply a legal rule based on what the Constitution ought to mean not a principle derived from text, history or precedent.

I have documented elsewhere numerous other Justice Scalia decisions employing a living Constitution approach to constitutional interpretation. Examples include anti-commandeering, standing, campaign finance reform, takings, and sovereign immunity, among many others. But you don't have to believe me that Scalia was no originalist, you can take Professor Randy Barnett's word for it: "I would conclude from his ... behavior on the Court, Justice Scalia is just not an originalist." 

Separate from his votes in real cases, Scalia's theoretical defense of originalism also failed miserably. According to a speech in "Scalia Speaks," only originalism can constrain judges and "there is no alternative to originalism but standardless judicial constitution-making." All other theories, whether founded in representation-reinforcing values, or moral values, or pluralistic recognition of numerous different modalities like text, precedent, history, tradition and consequences, are all just examples of "anti-theory" because "of course 'evolutionism' is not itself a theory of constitutional construction."

Not only did Scalia dramatically understate the intellectual underpinnings and normative force of non-originalist theories, but much more importantly, he completely distorted the constraining force of originalism. Today there are as many different versions of originalism as there are non-originalist theories, maybe more. Original Originalists such as Judge Bork, Lino Graglia and Raoul Berger would be aghast at Randy Barnett’s and Ilya Somin’s originalist (and quite libertarian) calls to strike down much of the regulatory state, and to use the Ninth Amendment to enforce a strong libertarian form of judicial review. Allowing judges to pick and choose which economic regulations are valid and which aren’t, or which unenumerated rights to protect, would leave them enormous discretion, increasing judicial subjectivity. 

An “originalist” judge today could either advocate strong deference to state and federal laws in the name of the old, classic originalism, or could adopt Barnett’s and Somin’s theory of constitutional construction to strike down laws banning abortion, affirmative action, gun control and same-sex marriage. Or, an originalist today could simply embrace Professors Will Baude's and Stephen Sach's "inclusive originalism" which they claim was used by the Brown, Roe, and Obergefell  Courts. Conversely, an originalist could adopt Justice Thomas' method of decision-making which, as I showed here, roughly mirrors the GOP political platform with just a few exceptions.

The skeptical reader might respond that Scalia would reject most of  these newly-minted originalist theories. The problem with that reply is that, as noted above, Scalia consistently voted for non-originalist outcomes either by ignoring relevant history altogether, distorting it, or by using other interpretative outs, such as precedent, to avoid originalist results he did not favor. Scalia's originalism was no more constraining than any of the other varieties currently in vogue.

In sum, if you want to learn about Justice Scalia the man, and his views on many diverse and interesting topics, "Scalia Speaks" will likely keep your interest, and is well worth your time. And if you want to understand how Scalia defended his originalism, you can find that in the book as well. What you won't get, however, is a defense of originalism that responds to, or even takes account of, the major objections to the doctrine that, sadly, Scalia never responded to while he was alive. In other words, what you learn about constitutional interpretation from this otherwise fine book, is sound-bite originalism that even Scalia did not adopt as a serious method of constitutional interpretation.

37 comments:

John Barron said...

At the outset, let us inter the facile notion that Scalia was ever an originalist on the bench. Barnett and Sunstein agree that he was not, and I have enough evidence on this score to overwhelm anyone who disagrees.

Scalia once observed that our Constitution is “dead,” but he failed to mention that it did not die of natural causes. It was murdered—tortured and cruelly hewn—by a long succession of power-besotted judges. For two centuries, this coterie of what Justice Elena Kagan described as self-appointed “Platonic Guardians” has raped, beaten, and sodomized that venerable document to the point where it is no longer even recognizable, in what Judge Robert Bork called a "judicial coup d’ĂȘtat.”

What we endure today is a SCOTUStitution—which, as the inimitable Judge Richard Posner notes, “bears very little resemblance to the text of the Constitution in 1789, 1791, and 1868.” As Chief Justice Roberts asserted, “under the Constitution, judges have power to say what the law is, not what it should be.” But as Thomas Jefferson and Judge Robert “Brutus” Yates predicted, judges have abused their authority on an industrial scale for centuries, to the point where “the law is what the judges say it is.”

The Framers’ Constitution contained an array of effective limitations on government power in general, and the judicial power in particular. If the government violated your rights, you could sue for damages. In a proper Seventh Amendment jury trial, the jury decided questions of law and fact, effectively removing corrupt judges from the process. When a judge acted corruptly in your case, you could remove him from the bench under the Good Behavior Clause. If a judge was committing crimes on the bench, you could even prosecute him criminally—a right that is still ubiquitous throughout the civilised world. And under the Civil Rights Act of 1871 (now, 42 U.S.C. § 1983), state judges were liable in tort for civil rights violations.

But in their quest for absolute power, our judiciary made all these remedies disappear.

The Framers’ Constitution also contained a series of legal remedies which, if observed, would control judicial abuses of office in all but the most extreme circumstances. The first, of course, is the civil jury trial, which is now all but extinct. The second is the grand jury, emasculated to the point where a decent prosecutor could indict a ham sandwich. The third is a written opinion by a judge—today, almost all opinions are written by clerks, of which some are still in law school. The fourth is traditional appellate review, where you can argue your points in front of judges who have actually read your briefs, and receive an opinion written by judges. The fifth is an ultimate
and mandatory review by the United States Supreme Court upon a writ of error or certiorari. Finally, there is the discipline imposed by the doctrine of stare decisis.

But in their quest for absolute power, our judiciary made all these safeguards disappear.

Even the Bill of Rights is void for lack of reliable enforceability. The government owns our asses, and there is nothing we can do. This is just some of the carnage Living Constitutionalism has wrought.

Joe said...

Scalia is loved by many for his "sound-bite" originalism.

I flagged this concern some years ago, noting that Scalia is worthy of praise for engaging with others, but has a certain knee-jerk quality. He is great at playing to the camera, really, and his writing on the Court has some of that too. Partially since it's hard to be productive for years without doing so, Scalia also didn't stick with his sound-bite originalism when actually judging. But, the cliches are successful all the same in promoting the ideology, including in politics.

At some point, this is annoying. A person can be wrong -- there are various beliefs out there, and they all aren't going to be mine. But, there is a certain phoniness going on here. And, it got worse and more nasty toward the end. That beyond his arguments being open to dispute on the merits, even using some of his own arguments.

John Barron said...

"Bugsy" Segall: "What you won't get, however, is a defense of originalism that responds to, or even takes account of, the major objections to the doctrine that, sadly, Scalia never responded to while he was alive."

I will assume here that they have been ably summarized by Michael Dorf. http://supreme.findlaw.com/legal-commentary/who-killed-the-living-constitution.html

ES: "Allowing judges to pick and choose which economic regulations are valid and which aren’t, or which unenumerated rights to protect, would leave them enormous discretion, increasing judicial subjectivity."

To me, this is the most glaring flaw of the Living Constitution (LC). In the words of Dorf,

"when judges "substitute" their own values for the Constitution's values, and then use those substituted values as the basis for invalidating legislative action, they illegitimately take important decisions away from the people's elected representatives.

Yet the foregoing is a valid critique only if champions of the living Constitution really think that they have a warrant to substitute their views for those of the Constitution. In fact, however, no serious judge, lawyer or academic argues for that."


Gee, I can think of one. I suspect that Dorf even knows him. “The judgments about the Constitution are value judgments,” [Judge Stephen Reinhardt] said. “Judges exercise their own independent value judgments. You reach the answer that essentially your values tell you to reach.” David Finnigan, Decoding a ‘Right’ Supreme Court, Jewish Journal, Jun. 23, 2005.

On the one hand, both Dorf and Segall see excessive judicial discretion as a bad thing, which I would happily stipulate to. But what they can't seem to explain is how the LC, which empowers judges to decide which words and phrases in COTUS mean what they say and say what they mean and which do not, cabins in excessive judicial discretion. And as a practical matter, as all of these weighty determinations are made ex post facto, we can have no way of knowing what the law is or how we might conform our behavior to it until we are hauled into court.

Dorf and Segall would present us with a Humpty Dumpty Constitution, wherein, COTUS means whatever the judges say it means.

I won't quibble over nomenclature. The only real question is whether 25,000 American colonists died to replace King George with "King Judge."

John Barron said...

Segall: "Scalia said in this speech, as he often did over the years, that, even though originalism is far from perfect, he only had to show that the theory was better than its competitors."

As we have already seen, that is not a heavy lift. Segall's Humpty Dumpty COTUS fails to solve even the problem that he identified: excessive judicial discretion. But let's address Dorf's giggle-worthy conceptual justification for the LC:

"[L]iving-Constitutionalists believe that while the original understanding has some bearing on the Constitution's contemporary meaning, it is not the whole story. For living Constitutionalists, the act of ratification by people who are long dead, and whose numbers did not include any women or enslaved African-Americans, does not suffice to make the Constitution effective today.”

This arrogant and presumptuous statement could only come from a Harvard Law grad, who has an insufferable air of superiority--installed by a proctologist. I didn't ratify the original document, but what gives Dorf the right to speak for me?

Crickets.

One wonders how one can give effective assent to a contract when you have no idea what the terms mean. The First Amendment SAYS "X", but the judges might change it to mean, "Not X." The Second Amendment SAYS "Y", but judges might "interpret" it into oblivion. The Seventh Amendment right to a jury trial--in which, the jury is the final arbiter of questions of fact AND law--is said to be "preserved," but our judges have decided that it has passed its expiration date and may be thrown out.

Given my druthers, I would much rather uphold, defend, and embrace the actual COTUS as written than the SCOTUStitution generated in the Depends of a senile Harvard Law grad.

Shag from Brookline said...

Here's a comment of mine from the Archives of Balkanization "Friday, March 01, 2013
Justice Scalia’s Warped Political Process Theory: Not Much Democracy, A Lot of Distrust
David Gans"

***

Recall that Justice Scalia served as "judge" on whether or not to recuse himself in a case involving then VP Dick Cheney.

"It's time for a revisit to DeNovo for my comment:

"JE NE RECUSE!"

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

Posted by: Shag from Brookline at March 23, 2004 07:28 AM

Judge not, lest ye be judged.
# posted by Blogger Shag from Brookline : 8:42 PM

***

This archival post, including comments, is available at:

https://balkin.blogspot.com/2013/03/justice-scalias-warped-political.html

This was all several years prior to the publication of "Scalia Speaks Well."

Shag from Brookline said...

Query: Is John still sensitive about my referring to him on an earlier thread at this Blog as a "HUMPTY-DUMPTY ORIGINALIST"? COTUS speaketh from its four corners and does not incorporate history (selectively or wholly) going back to some version of Genesis on the beginnings of history.

John Barron said...

Dorf: "Justice Scalia and others may still have reasons to prefer the dead to the living Constitution, but their core claim--that the dead Constitution is the real Constitution--proves, upon inspection, to be nothing more than an assertion of the power of the dead few to rule the living many from the grave."

Libenter homines id quod volunt credunt. Dorf desperately wants it to be true, ergo, it is true. But to credibly believe such potty nonsense, you have to be able to show that the Framers intended that COTUS would be subject to ad hoc judicial revision on an as needed basis. And of course, there is no evidence to support that theory.

Distilled to essentials, COTUS is a treaty between co-sovereigns. Contract law and pacta sunt servanda control. It was enacted for a purpose, and should be interpreted in such a way as to achieve its desired objectives. And according to the Framers, their words had a clear and fixed meaning. As Thomas Jefferson observes,

"[o]ur peculiar security is in possession of a written constitution. Let us not make it a blank paper by construction. If [our public officials’ powers are boundless] then we have no constitution. If it has bounds, they can be no other than the definition of the powers which that instrument gives."

Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2 (emphasis added). Madison concurs:

"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) (emphasis added).

COTUS includes a provision by which it can be changed at need, and we have modified it on many occasions. We have put a merciful end to slavery, and extended the franchise to women and military-age wo/men. We outlawed alcohol, and came to the conclusion that that was a Really Bad Idea. Ergo, we are not ruled by the dead, but our friends, our neighbors, and ourselves. We have kept the vast bulk of the superstructure because it works--or perhaps more accurately, it isn't broken enough to require fixing.

Take the Electoral College. It puts too much electoral power in the hands of residents of rural states like Wyoming, but there is a simple fix: creating 5,000 congressional districts. You don't need to amend COTUS; a statute will do. And the Dems could have done this in 2009, so it is all on them.

Dorf: "The problem, it turns out, is not just a matter of marketing, but the product itself. The dead Constitution is dead."

At the risk of asking the obvious, "What is wrong with it?" "What is your superior alternative?" Adopting the LC is cutting off our nose to spite our face.

John Barron said...

If I must, Shag.... My time-barred response:

Shag's latest missive is sad. Bigly. Unable to refute my originalism on the merits, Shag is forced to indulge in an bacchanal of illogic. As the good folks at Internet Infidels explain:

"Argumentum ad hominem literally means "argument directed at the man"; there are two varieties.

The first is the abusive form. If you refuse to accept a statement, and justify your refusal by criticizing the person who made the statement, then you are guilty of abusive argumentum ad hominem. For example:

"You claim that atheists can be moral--yet I happen to know that you abandoned your wife and children."

This is a fallacy because the truth of an assertion doesn't depend on the virtues of the person asserting it."

Worse yet, Shag's mind appears to be like the signal on the old UHF station with the Spanish-speaking guy in the bee suit. Whereas I am happy and even eager to defend my positions, it is silly to try to defend positions I wouldn't have taken in the first place, as I probably didn't take them for a reason. :)

Moreover, it seems as though Shag's store of historical knowledge rivals that of Ted "Theodore" Logan (of Bill and Ted fame): he thinks that Caesar is "a salad dressing dude."

Plutarch was the first recorded historian to observe that inequality in wealth was the bane of a republic. In a letter to Madison, Jefferson advocated a progressive taxation scheme, observing that "[w]henever there is in any country, uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right." Reaganomics was a train wreck waiting to happen, as it ignored both that historical and philosophical truism and the counsel of Adam Smith.

While I do refer to RR as "St. Ronald of Reagan," it is always derisive, reflecting the bizarre worship of the man in Republican circles. RR once said that "where free unions and collective bargaining are forbidden, freedom is lost," which would render him unfit to run for coroner under that banner today. History isn't a Republican forte, either.


Shag: "Recall John's reference that during his lifetime, while America was not great, things were better with Reagan."

It would be remarkable if I had actually written that. "Things went tits-up" is not a good thing; it is a reference to failure (and death).

John Barron said...

Humpty Dumpty is the PERFECT metaphor, Shag. The only question that matters is, "Who is to be master?" King Judge, or the people?

Under originalism, the people are master. We could inter the Second Amendment tomorrow, and there would be nothing Neil Gorsuch could do about it. We could outlaw abortion on Tuesday, and there would be nothing the Notorious RBG could do about it.

While COTUS does "speak from its four corners," it uses terms of legal art which make no sense in isolation. As is the case with other treaties, words used therein have a clear and fixed meaning. And as is the case with other treaties, pacta sunt servanda provides meaningful restraint upon the range of interpretations. When what COTUS said is not as pellucid as we would like, we have to resort to legislative history.

It is hard to argue with a straight face (Shag does, but Breyer didn't in Heller) that history has no bearing on how we are to interpret COTUS. The 7Am states that the right to a jury trial is to be "preserved"; one casus belli of the Revolution was that King George "depriv[ed] us in many cases, of the benefits of Trial by Jury. As Blackstone put it, "the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals." 3 Blackstone, Commentaries at 379. The intended benefit of a jury trial was to shelter the citizen from a despotic and/or aristocratic government, see e.g., Thomas Jefferson, Letter (to L’Abbe Arnoux), Jul. 19, 1789 at 2, which tells us what is to be preserved.

Shag from Brookline said...

Those impressed with John's Plutarch quotes might check out more Plutarch quotes available at:

https://www.goodreads.com/author/quotes/31015.Plutarch

Alas, John's 10:39 AM "My time-barred response:" comment require one, if interested, to locate an earlier thread at this Blog to check what "I said/John said" as if it relates to Eric's post or is signs of John's trolling. By the bye, the "Dead Man's Float" is "tits-down."

And let's credit former President George H. W. Bush's reference during the 1980 Republican presidential nomination campaigning in branding as "VOODOO ECONOMICS" candidate Reagan's economic proposals. Bush didn't have to quote plutarch, Jefferson or Adam Smith as common sense prevailed over name-dropping (in the manner of that great conservative debater the late Bill Buckley).

In John's 10:37 AM comment, he notes in support of originalism:

***

Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2 (emphasis added). Madison concurs:

"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) (emphasis added)

***

Marbury v. Madison was decided, unanimously, on February 24, 1803, some 6+ months prior to Jefferson's letter. Since Madison was a party in the case as a member of Jefferson's Administration, was this aimed at CJ Marshall and LC? Madison was a Framer at the 1787 Constitutional Convention. Marshall was a delegate to the ratification in VA of the 1787 Constitution. Jefferson was neither a Framer nor a Ratifier. But Jefferson wrote letters.

John doesn't mention this. Rather he focuses on Augustine and the "Austinians."

Shag from Brookline said...

John, history has a bearing, particularly contemporaneously with the 17 87 Constitution. I've teased you on going back to one of the versions of Genesis, but you don't take the bait, presumably because it might confirm Eric's proposed book title "Originalism As Faith." Or perhaps Genesis' "Original Sin" might reflect on the 1787 Constitutions "Original Sin" that originalism would have to accept. But of course you do cite to Augustine and the "Austinians." And you jump ahead a couple of centuries to the late 20th century with cites to Pope John Paul II. That could put you in the category of "HOLY TRINITY ORIGINALISM." That might be from the Steve Bannon influence on the role of religion in anarchy.

John Barron said...

Shag: "might reflect on the 1787 Constitutions "Original Sin"

What sin is that? Presuming that words say what they mean and mean what they say?

Let me illustrate the problem. Say, arguendo, that COTUS used the word "gay." Back in the day, "gay" essentially meant "merry"; a "gay man" was a womanizer. By your metric, we should abandon the archaic definition and embrace the modern one. But haven't you just amended COTUS sub rosa?

There is no faith involved, and no sin. COTUS is a treaty--a contract between a number of sovereigns. How do you interpret a treaty? By presuming that the words meant what the parties said, and said what they meant. Where there is ambiguity, you interpret it in a manner consistent with the parties' apparent intent. Full stop.

The only exception is where the phraseology is too abstruse to make a confident reading of the statute possible. This is as true in homeowner zoning statutes as it is in more weighty enactments.

There is little that can be found in the Pentateuch that is of great value, although it has been observed that what is permissible in Scripture is allowed at common law. What relevance that has to our discussion is not altogether clear.

The notion that history and philosophy can literally teach us nothing brands you as a Luddite. There is no reasoning with a man whose head is stuck so far in the sand.

Joe said...

Shag, Poet Laureate.

John Barron said...

shag: "Madison was a Framer at the 1787 Constitutional Convention. Marshall was a delegate to the ratification in VA of the 1787 Constitution. Jefferson was neither a Framer nor a Ratifier. But Jefferson wrote letters.

John doesn't mention this."

And with good reason.

IOW, Marshall was a bit player in that drama, at best. Jefferson was author of the DoI, and Madison's mentor. The fledgling national government sent their best and brightest to England and France to serve as ambassadors. It is hard to see that you have anything approaching a coherent point here, as Jefferson had far more impact on the Founding than Marshall.


shag: "Since Madison was a party in the case as a member of Jefferson's Administration, was this aimed at CJ Marshall and LC?"

In a word, no. It was written in 1824, and mostly concerned with the problem of faction; Madison's view was that strict fealty to the text would help to solve that problem. As for Jefferson's letter, it involved the proper reading of a treaty. While Jefferson did criticize Marshall for going out of the case to pen his masterpiece, there is little in the actual essay that lends succor to the LC advocate. "It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it" is pure originalism.

Shag from Brookline said...

So Ratifiers were bit players? An earlier version of of originalism looked to the public understanding at the time of ratification, including not only of Framers but of Ratifiers. But public understanding was shot down by non-2nd A means as almost as subjective as Framers'' original intent, so originalism evolved to a more objective original public meaning of documents at the time of ratification. So ratifiers continued to be important in originalism as it continued to evolve.

The Federalist Papers expressed the views of three Framers attempting to sell the 1787 Constitution to the ratifiers. Included within the ratifying groups were anti-federalist, some, perhaps many, of whom did not want the Constitution ratified. The anti-federalists lost and the Constitution was ratified.

Was Thomas Jefferson an anti-federalist, at least a closeted one, back then? Hamilton was clearly a Federalist. Recall how Adams, also a Federalist, was defeated for reelection by Jefferson. Jefferson was centered on agriculture as America's economic driving force. Perhaps Jefferson was sent out of the country to lessen Jefferson's influence with the anti-federalist movement during the ratification process. And who can forget the political battles, differences between Jefferson and Hamilton during the short time Hamilton lived during the Jefferson presidency. I don't think there's a Jefferson musical as yet. Was Jefferson outed in the Hamilton musical?

By the bye, there is a new book out on Madison's three lives by Noah Feldman suggesting changes in Madison's views. This is in addition to Mary Sarah Bilder's Madison's Notes. Which life was Madison living in 1824?

And, John, you seem to be saying that Marbury v. Madison comports with original public meaning originalism, in which case CJ Marshall's non-recusal because of his involvement with the underlying issue in Marbury was within the original public meaning of Article III of the Constitution? Was that "Good Behaviour" on CJ's part? [Let's see if I cam come up with a good cite on what constitutes "Good Behaviour". Was it Plutarch?]

John Barron said...

Shag, your theory of constitutional interpretation actually sounds a bit like Genesis: "G-d made plants before Adam [Gen. 1:1-2:3] ... er, I mean, made Adam before the plants [Gen. 2:4-15] ... it doesn't matter, goddamnit! Godidit!"

The problem with the LC is that "red" can mean "chartreuse" if you need it to be.

In summation, you are the Henry Morris or Duane Gish of constitutional interpretation, arguing that creationism is true because the fossil record isn't pristine enough for your satisfaction.

Shag: "So Ratifiers were bit players?"

Pretty much. Marshall was one of 168 delegates to the VARC, and one of about a thousand overall. Besides, I don't recall him being a champion of granting the judiciary a veto over every COTUS provision in his recorded speeches in Elliot's. If that was what he had in mind, he prudently kept that to himself.

Your pettifoggery is delightful. Instead of addressing core questions, you wave your hands like a spastic magician. Your desperate attempt to grossly over-inflate Marshall and diminish Jefferson is ahistorical and tendentious, and we both know it. But let's keep our eyes on the ball, shall we?

How would you interpret a treaty? A contract? Do you honestly think the other party is going to be satisfied when you deliver a green car, claiming that chartreuse is really red?

Now, make me the case that COTUS is, legally speaking, different from any other treaty between co-sovereigns. [Hint: You can't.]

As Scalia put it, you can't beat something with nothing. The LC theory had no support in the various conventions. None. Zero. Zip. Nada. Even the worst iterations of that EEEEEEEVUL originalism are superior to the alternative you offer, and the thought that we might be trying to improve on Darwinism should cause no consternation.

As for MvM, an honest John Marshall would have recused himself, and a proper decision would have been to declare that the Court had no jurisdiction--which would have taken less than two pages to write. And while I seem to have to make great allowances for your senility, it was a violation of his good behavior tenure for reasons laid out in great detail and, in his own words, "treason to the Constitution."

The Chase impeachment (he should have been convicted) scared the shit out of Marshall. He reportedly offered to withdraw MvM at one point, fearing that he was next. But then again, you really don't do history.

But let's get back to what matters. Why should we not interpret COTUS as written, with the words carrying the meaning they did in 1789? Dorf tried his best, but his best was risible. Perhaps you can step up and make a better argument...

Awww, who am I kidding?

Shag from Brookline said...

John jumps back into the saddle of originalists' approvals of the late Justice Scalia with:

"As Scalia put it, you can't beat something with nothing."

But as pointed out in Eric's post, Scalia's opinions were self-flagellating between his version of originalism and his version of non-originalism, described by Eric, and even by you, John, as hypocrisy.

But I note, John, that you didn't address whether Jefferson was a closeted anti-federalist following the close of the Constitutional Convention. Perhaps there were some letters between Jefferson and Patrick Henry? Jefferson as Minister to France knew he would be safer there than if Minister to England, perhaps because of Jefferson's role in the DOI that dropped a Motherload on the former Motherland. But I digress. Was Jefferson in favor of ratification of the 1787 Constitution? Of course Jefferson's "exile" in France was rather pleasant for him, including the fact that France was an ally of the Revolution.

I also note that no self-proclaimed originalists have professed support for John's "HOLY TRINITY ORIGINALISM" in threads at this Blog. Perhaps that's because John's originalism is threadbare.

John Barron said...

Shag: "Scalia's opinions were self-flagellating"

Evasive as a Sessions. Dishonest as a Scalia. Non-responsive. Jiggery-pokery. Argle-bargle. "Incompetent, irrelevant, and immaterial!" :)

None of my core questions were addressed.

Even though Scalia was arguably the most hypocritical man to ascend to SCOTUS, he had a point in the abstract. All you have in rebuttal is an ad hominem attack, but you seem incapable of wielding even simple logic.

"You can't beat something with nothing" is true, even if Scalia said it. Kindly answer my questions:

How would you interpret a treaty? A contract? Do you honestly think the other party is going to be satisfied when you deliver a green car, claiming that chartreuse is really red?


shag: "...you didn't address whether Jefferson was a closeted anti-federalist following the close of the Constitutional Convention. Perhaps there were some letters between Jefferson and Patrick Henry?"

You really do need to study a little history. On Dec. 8, 1784,

"Thomas Jefferson sent a letter from Paris to James Madison in which he shared with Madison his animosity toward Patrick Henry. Jefferson had never forgiven Henry for having led the effort to have Jefferson impeached as governor of Virginia, nor for trying to block Jefferson’s resolution for religious freedom in Virginia. Now Patrick Henry was leading the opposition to ratification of the U.S. Constitution. In this letter, Jefferson contemplates a satisfactory way to overcome the opposition:

'While Mr. Henry lives another bad constitution would be formed, and saddled for ever on us. What we have to do I think is devoutly to pray for his death, in the mean time to keep alive the idea that the present is but an ordinance and to prepare the minds of the young men." https://legallegacy.wordpress.com/2015/12/08/december-8-1784-jefferson-writes-to-madison-about-the-best-way-to-handle-patrick-henry/

Yeah, they were best buds.


shag: "I also note that no self-proclaimed originalists have professed support for John's "HOLY TRINITY ORIGINALISM" in threads at this Blog."

There are actual originalists that post on this blog? To the best of my knowledge, I'm the only one who bothers to comment. Besides, your abusive moniker hides the fact that you would have us live on our knees worshiping King Judge.

You just HATES guns! Hates 'em forever! Gollum! And you don't have a credible argument that can assail my position.

John Barron said...

Shag: "Jefferson as Minister to France knew he would be safer there than if Minister to England, perhaps because of Jefferson's role in the DOI that dropped a Motherload on the former Motherland. But I digress. Was Jefferson in favor of ratification of the 1787 Constitution?"

Where did you flunk history again? According to our government:

"Although Thomas Jefferson was in France serving as United States minister when the Federal Constitution was written in 1787, he was able to influence the development of the federal government through his correspondence. Later his actions as the first secretary of state, vice president, leader of the first political opposition party, and third president of the United States were crucial in shaping the look of the nation's capital and defining the powers of the Constitution and the nature of the emerging republic. ...

Writing to William Smith (1755–1816), John Adams' secretary and future son-in-law, Thomas Jefferson seemed to welcome Shays' Rebellion in Massachusetts: “god forbid we should ever be twenty years without such a rebellion . . . the tree of Liberty must be refreshed from time to time with the blood of patriots & tyrants. it is it's natural manure.”

Thomas Jefferson's December 20, 1787, letter to James Madison contains objections to key parts of the new Federal Constitution. Primarily, Jefferson noted the absence of a bill of rights and the failure to provide for rotation in office or term limits, particularly for the chief executive. During the writing and ratification of the constitution, in an effort to influence the formation of the new governmental structure, Jefferson wrote many similar letters to friends and political acquaintances in America.

[As an aside, we really should have listened wrt term limits.]

Thomas Jefferson called the collected essays written by Alexander Hamilton (1755–1804), James Madison, and John Jay (1745–1829), the “best commentary on the principles of government which ever was written.”

On July 4, 1776, in addition to approving the Declaration of Independence, Congress chose Thomas Jefferson, John Adams, and Benjamin Franklin to design a great seal for the new country. Franklin proposed the phrase “Rebellion to tyrants is obedience to God,” a sentiment Jefferson heartily embraced and included in the design for the Virginia seal and sometimes stamped it on the wax seals of his own letters." https://www.loc.gov/exhibits/jefferson/jefffed.html

I'd ask you to learn even a little American history, but you are obviously too old to learn new tricks.

Shag from Brookline said...

So, Jefferson wrote self-promotional letters - as did John and Abigail Adams - that were broadly published in the new republic of America so all Americans were contemporaneously aware of their views? Of course during the 1800 campaign Jefferson was published but not in his own name, sort of in the manner of John Barron today (hiding behind a Donald Trump moniker while self-promoting his knowledge of the "CLASSICKS"). May we expect John to furnish quotes from Jefferson's excised Bible to support originalism and anarchy?

By the bye, John, how aware were Americans at the time of the identity of the authors of the Federalist Papers?

Further by the bye, John, I'm not aware of a policy at this Blog that prohibits comments from those claiming to be originalists. So far I'm not aware of comments in threads at this Blog supporting your "HUMPTY-DUMPTY ORIGINALISM."

Perhaps John will delight us with Jefferson's method of duplicating his letters in case addressees did not save the originals. Sally forth!

John Barron said...

ES: "According to a speech in "Scalia Speaks," only originalism can constrain judges and "there is no alternative to originalism but standardless judicial constitution-making."

....with Scalia being Exhibit A. He was only an originalist when originalism got him to the answer he wanted. Scalia was as faithful to his originalism as Tiger was to ex-wife Elin. On this, all are agreed.

But in the abstract, he has a point.

To the originalist, the judicial power means the power to interpret the law, as opposed to rewriting it. As Justice Frankfurter observed, the judge’s only legitimate task is “to ascertain the meaning of the words used by the legislature,” for to go beyond it, and rewrite a statute to his or her liking, is to “usurp a power our democracy has lodged in its elected legislature.” Felix Frankfurter, “Some Reflections on the Reading of Statutes” (speech before The Association of the Bar of the City of New York), Mar. 18, 1947.

Originalism dictates that a decision that cannot be squared with COTUS or statutory law is void ab initio, and carries no stare decisis effect. However, to the LC adherent, “caselaw on point is the law,” Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001), irrespective of whether it can be squared with COTUS. As such, under the LC, we are not ruled by the dead hand of the Framers, but the equally dead hand of unelected and unaccountable judges. A classic illustration of this point is provided by the dead hand of Learned Hand (in Gregoire v. Biddle):

"It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery."

[At the risk of stating the obvious, that is why you have trials.]

Earlier, Hand reveals that

We discussed at length the absolute privilege of judges, and held that a United States attorney "if not a judicial officer, is at least a quasi-judicial officer, of the government," and that as such the defendant "in the performance of the duties imposed upon him by law, is immune from a civil action for malicious prosecution. * * * The immunity is absolute and is grounded on principles of public policy.

This may or may not be good public policy (see, Chemerinsky) but that is not for judges to decide. To an originalist, the doctrine of absolute judicial/prosecutorial immunity is void, on the ground that it is "standardless judicial constitution-making," which you in the LC camp have no problem with.

Bottom line, Constitutional Scholar Scalia is right, and LC Justice Scalia proves it.

Shag from Brookline said...

John puts on his anarchy mode with this in his 11:43 AM screed:

***

"Writing to William Smith (1755–1816), John Adams' secretary and future son-in-law, Thomas Jefferson seemed to welcome Shays' Rebellion in Massachusetts: “god forbid we should ever be twenty years without such a rebellion . . . the tree of Liberty must be refreshed from time to time with the blood of patriots & tyrants. it is it's natural manure.”

***

John fails to disclose the date of that writing. Was it contemporaneous with Shays' Rebellion, an event that resulted in such concern to the Framers that the Convention included an insurrection clause (that the slave states also wanted) tied-into the Militia clauses. Perhaps John needs to provide context (rather than name-dropping). Was Jefferson perhaps relating this to the 2nd A insurrectionist view that John has been presenting in his constitutional blivet.

John Barron said...

shag: "By the bye, John, how aware were Americans at the time of the identity of the authors of the Federalist Papers?"

OMG! I think I'm debating Hamilton Burger!

Evidently, logic is an undiscovered country for you. Even if you only had a HS logic class, you would know that arguments are independent of the person making them.

Shag: I'm not aware of a policy at this Blog that prohibits comments from those claiming to be originalists. So far I'm not aware of comments in threads at this Blog...."

Again, logic ain't your specialty. E silentio arguments rarely prove much of substance, as the causes of silence are often legion. My read is that generally, originalists don't bother with Segall Sloppiness.

We can't canvass the entire country at the time, but the evidence we do have shows that there was no support for replacing King George with King Judge.

John Barron said...

Shag: "Perhaps John needs to provide context"

I'm tired of spoon-feeding history to you. http://www.heritage.org/constitution/#!/articles/1/essays/55/militia-clause

Shag from Brookline said...

Is John suggesting with his:

"Evidently, logic is an undiscovered country for you. Even if you only had a HS logic class, you would know that arguments are independent of the person making them."

that we should judge his arguments independently of whoever he is? We should ignore that he is a self-admitted draft dodger who is afraid personally of guns but has no problem inciting others to adopt his insurrectionist view of the 2nd A? Does John reference authorship by Jefferson only in casual passing in judging Jefferson's arguments or does Jefferson's place in history serve as a persuasive to the argument? Ditto Plutarch et al. Knowing who the author is and knowing something about the author, like the author's views, his politics, his religion, his biases, provides context on the author's arguments. Why that's how you, John, came to the conclusion that Scalia was a hypocrite.

John, your concept of logic can be defined as a blivet. I assume you're a subscriber to Breitbart.

The right to "publish" other than under one's own name doesn't give credence to what is "published." But if the reading public back then knew the identities of the authors of the Federalist Papers, some in the public might have responded about some of their failings, e.g., like with Judge Roy Moore. Hiding their identities had a purpose.

And that's a tiresome straw man regarding "replacing King George with King Judge." Did "King Judge" lead to the Civil War? [This is bait.]

As for "spoon-feeding history," no one's swallowing. You're spoon-feeding hysteria. We all got computers and can Google away to find bits and pieces of "evidence" that we might like and ignore what we don't like. And speaking of bias, you're spoon-feeding Heritage? That's enough to make anyone gag.

John Barron said...

shag: "that we should judge his arguments independently of whoever he is?"

Yep. Logic 101. From my friends at the Internet Infidels site:

Argumentum ad hominem (Abusive: attacking the person)

Argumentum ad hominem literally means "argument directed at the man"; there are two varieties.

The first is the abusive form. If you refuse to accept a statement, and justify your refusal by criticizing the person who made the statement, then you are guilty of abusive argumentum ad hominem. For example:

"You claim that atheists can be moral--yet I happen to know that you abandoned your wife and children."

This is a fallacy because the truth of an assertion doesn't depend on the virtues of the person asserting it. A less blatant argumentum ad hominem is to reject a proposition based on the fact that it was also asserted by some other easily criticized person. For example:

"Therefore we should close down the church? Hitler and Stalin would have agreed with you."

A second form of argumentum ad hominem is to try and persuade someone to accept a statement you make, by referring to that person's particular circumstances. For example:

"Therefore it is perfectly acceptable to kill animals for food. I hope you won't argue otherwise, given that you're quite happy to wear leather shoes."

This is known as circumstantial argumentum ad hominem. The fallacy can also be used as an excuse to reject a particular conclusion. For example:

"Of course you'd argue that positive discrimination is a bad thing. You're white."

This particular form of Argumentum ad Hominem, when you allege that someone is rationalizing a conclusion for selfish reasons, is also known as "poisoning the well."

It's not always invalid to refer to the circumstances of an individual who is making a claim. If someone is a known perjurer or liar, that fact will reduce their credibility as a witness. It won't, however, prove that their testimony is false in this case. It also won't alter the soundness of any logical arguments they may make.


https://infidels.org/library/modern/mathew/logic.html#hominem

You appear to be impervious to logic, Shag.

John Barron said...

Shag: "We should ignore that he is a self-admitted draft dodger who is afraid personally of guns but has no problem inciting others to adopt his insurrectionist view of the 2nd A?"

Shag is about as honest as Dolt45. He lives in an alternate universe, where "red" means "chartreuse." Sad. Bigly. (Check the record, and you will see that Shag is channeling his inner The Donald.)


Shag: "Does John reference authorship by Jefferson only in casual passing in judging Jefferson's arguments or does Jefferson's place in history serve as a persuasive to the argument?"

Along with Dr. Franklin, TJ was the most brilliant man of his age. In the words of JFK: "I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered at the White House - with the possible exception of when Thomas Jefferson dined alone." Jefferson is worth quoting because he is Jefferson.


Shag: "I assume you're a subscriber to Breitbart."

All that that proves is that you are an ass. Ironically, I've also been squabbling with Ed Whelan (the editor of Scalia Speaks) on Twitter (called him a "partisan hack" on Sen. Ben's Asse's feed wrt judicial candidates). There, I am "Scalia 2.0," and have been banned by Eric "Bugsy" Segall.

That you even suspect that I might be a subscriber to Breitbart (used to squabble with Andy before he died) means I'm doing a good job of masking my political views. (You'll find me to be a flaming liberal on most subjects.)


Shag: "Knowing who the author is and knowing something about the author, like the author's views, his politics, his religion, his biases, provides context on the author's arguments. Why that's how you, John, came to the conclusion that Scalia was a hypocrite."

Scalia is a flaming hypocrite, but logically, that does not invalidate his arguments. Judge Roy Moron is a pig, but he can still say that 2 + 2 = 4.


Shag: "Hiding their identities had a purpose."

Silence Dogood.


Shag: "And that's a tiresome straw man regarding "replacing King George with King Judge."

Methinks the laddie protesteth too much. The core question: Who is to be master? It is either COTUS, or judges. There is no third option, and you have no answer.

Shag from Brookline said...

I guess John will continue with his Master Debating skills as part of his hands-on rehabbing, at least until moderation sets in but in an immoderate manner (and a poor imitation of the late Bill Buckley in a defensive mode).

By the bye, are jurors bound by logic in determining the testimony of a witness?

Joe said...

Trump seems to favor appointing conservative bloggers to the courts but Ed Whelan is a bit too old (late 50s) to be one of them.

Christopher Scalia tweets. Wonder how his dad felt about that.

Christopher J. Scalia‏ @cjscalia:

140-word Twitter: Shakespearean sonnet
280-word Twitter: undergrad workshop free verse confessional

Shag from Brookline said...

And John Barron is worth quoting because he's John Barron? Perhaps we can expect some "syllygisms" to demonstrate John's logic.

But name dropping JFK? Sheer desperation my desperatado.

John Barron said...

Well, at least, we know who the Shag-man is: https://www.youtube.com/watch?v=mTH_nlUvrnc Actually makes sense of his blather. :)

John Barron said...

Shag: "are jurors bound by logic in determining the testimony of a witness?"

When you can't argue rationally on the merits, you have to play the emotion card. (It is a tacit confession that even Shag knows the weakness of his arguments.)


Shag whines: "name dropping JFK?"

Why? Because I can. Sucks for you, 'O Solon of Senility!

Shag from Brookline said...

Query: Does accusing someone of senility over and over constitute ad hominem attacks? John, what would your parents think about this? Or your spouse? Or your children? Or your caregiver? Does Logic 101 address this? I am aware that bullying can be effective on the elderly but not when that bully assumes the identity of Trump's one-time alter ego as a means of dissing The Donald. John, you're farcical but entertaining as a target. Yes, I'm in my 88th year and I'm aware that the memory is the second thing to go. But I've had my desktop updated. Now if only I could remember thosedamn passwords.

John Barron said...
This comment has been removed by the author.
John Barron said...

Senility is the best explanation for your frequent mental lapses.

Joe said...

This is not really germane but it's too good not to toss in:

https://balkin.blogspot.com/2005/11/advice-to-thurgood-marshall.html

I guess it has certain germane aspects.

Shag from Brookline said...

Included in John Barron's impressive disclosure of his educational achievements [not from Trump University, I assume] is his Juris Doctor, which "qualifies" John to make a medical diagnosis via a thread on a legal blog. When "Plutarch" said "Physician, heal thyself" did he have John Barron in mind?

Before I have a complete memory lapse, full disclosure: I received in 1954 my LLB. Years later, when the JD succeeded to the LLB, I went along with the change for myself. Why? Not because I wanted to play "doctor," like John. Rather, I opted for the new degree to hang on my office wall in place of the old. If I stayed with the old degree, perhaps years later a client might be curious about "What's an LLB, a clothier from Maine"?