Wednesday, February 14, 2018

Shaquille O'Neal and the New Originalism

By Eric Segall

This Friday and Saturday I'll be discussing my forthcoming book "Originalism as Faith" at the annual Works-in Progress Originalism Conference at the University of San Diego. I am excited and flattered to be included in this event. In this post, I want to discuss one aspect of my book that deals with what many people call "New Originalism."

First, a little background. In the 1970's and early to mid-1980's, Judge Bork, Justice Scalia and Professors Raoul Berger and Lino Graglia, among others, criticized many of the Warren Court's liberal decisions as being inconsistent with the original intent or original meaning of the Constitution. An important element of their critiques was that judges should be deferential to the decisions of other political actors unless the plaintiffs challenging a law could show that it clearly violated constitutional text or the history behind that text (Scalia later abandoned the deference part of that critique at least in practice). In 1980, President Ronald Reagan promised to appoint judges who would "interpret not make the law," and later his Attorney General Edwin Meese argued that judicial decisions that went beyond the Constitution's original intent were illigitmate.

As more Reagan and George H.W. Bush judges came to dominate the federal judiciary in the 1990's, however, the scholarly embrace of originalism began to change to accommodate aggressively conservative judicial decisions. There were three major changes.

First, consistent with a famous speech Justice Scalia gave in 1986, originalist scholars argue that the appropriate search is for the original meaning of the constitutional text, not the intent of the text's authors. Today, most originalists, New and otherwise, rely on original meaning, not original intent.

Second, scholars like Randy Barnett, Keith Whittington, Larry Solum and Jack Balkin argue for a distinction between constitutional interpretation and constitutional construction. Interpretation requires judges to ascertain the non-legal, semantic or plain meaning of the text which they claim is fixed at the time of ratification. But that meaning will usually not decide hard cases because most text that leads to litigation will be vague or imprecise. When the semantic meaning does not clearly point to a decision, judges use the process of constitutional construction to apply the principle at issue (such as freedom of speech or equal protection) to new facts. The scholars who self-identify as New Originalists at first conceded that originalism often runs out in this construction zone, and the judges' other normative commitments would be needed to resolve most cases. Today, some New Originalists such as Barnett and Evan Bernick are trying to put a bit more originalism into the construction zone, but so far, at least in this writer's opinion, without much success.

The third major change is that deference to other political actors is not part of the New Originalists' paradigm. They are much more concerned with judges construing the Constitution correctly than with judges being extremely cautious before striking down laws. In fact, some New Originalists such as Barnett and Ilya Somin argue that the Ninth Amendment and/or the Privileges or Immunities Clause of the Fourteenth Amendment should be used by judges to enforce economic rights that the Court hasn't protected since the long-discarded Lochner line of cases decided by the Justices during the first third of the twentieth century. Judge Bork and Justice Scalia disliked Lochner as much as they disliked Roe v. Wade.

These developments have led some New Originalists to advocate surprising positions. Barnett agrees with Balkin (the lone liberal in the group) that the right to abortion can be justified on an originalist basis. Somin wrote an amicus brief in the Obergefell litigation arguing that state bans on same-sex marriage should be overturned by the Court using originalism. Self-identifying originalists Professors Will Baude and Stephen E. Sachs have stretched the definition of originalism the furthest, arguing that originalism is already our law. They claim that decisions like Brown v. Board of Education, Roe, Lawrence v. Texas (striking down state law prohibiting consensual, private same-sex sodomy), and the same-sex marriage decisions, are all originalist cases. Baude and Sachs have taken originalism almost full circle to embrace both the methods and the results of decisions that most people think exemplify living constitutionalism.

The common strands for all of these counter-intuitive arguments are that 1) vague constitutional provisions like the equal protection clause were originally meant to be applied on an evolving basis taking into account current values and conditions; and 2) originalists are not bound by the specific expectations of those people alive in 1787 or 1868 but rather are bound be the objective meaning of the words they used. Thus, words and phrases like "equal protection" and "due process" will be applied by judges differently over time to new facts, but the meanings of those phrases don't actually change, just their applications. For example, New Originalists have argued that, although the ratifiers of the equal protection clause probably thought that racial segregation and discrimination based on gender were consistent with the Fourteenth Amendment, they were wrong about the facts. Judges today are bound by what the ratifiers wrote, not what legal effect they expected the words to have.

What the New Originalists have done (and of course not all modern originalists are New Originalists), is define originalism in a way that makes it virtually indistinguishable from living constitutionalism and other non-originalist judicial methodologies. Professors Tom Colby and Peter Smith have written a series of articles explaining that by interpreting the level of generality of vague constitutional provisions at a high level, and ignoring what the ratifiers expected to happen, originalists can advocate for virtually any result in any case. All of the deference and limiting of judicial discretion that Bork, Meese, and the early Scalia argued were the hallmarks of originalism have been lost by New Originalist  theory.

Professors Smith and Colby are right, but I want to make a different point. New Originalists have defined originalism in a way that makes helpful and important conversations about originalism quite difficult. This disconnect has never been more important because the President of the United States has promised to only nominate "originalist" judges. But what exactly does that mean (not to Trump, who knows nothing about the subject, but to the people being nominated, United States Senators, and the American people)?

There can be many different legitimate versions of originalism, but allowing judges to define constitutional text in a way that permits them to apply it differently today than yesterday without the constraint of originalist-era evidence is simply not one of them. And here is where Shaquille O'Neal comes in. The statement Shaq is tall is not objectively true because tall (as Balkin points out in his paper for the San Diego conference) is a descriptor, not a statement of fact. But if we can't all agree that Shaq at 7'3'' is tall, then we cannot have a discussion about what tall means. We have no shared premises to start our discussion. In that sense, we can say that the statement Shaq is short is a non-starter.

The same is true for New Originalism if cases like Brown, Roe, Lawrence, and Obergefell are embraced by people who claim to be originalists. In Obergefell, Justice Kennedy specifically rejected the premises that make originalism a distinctive theory of constitutional interpretation: "The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning." Yet Baude and Sachs use Kennedy's rejection of originalism as showing "originalism is our law." This is like saying Shaq is not tall. 

So one of the points I hope to make in San Diego, and that I support at length in my book, is that originalism in the hands of many (certainly not all) modern scholars no longer means what most people think it means. This makes it easy for politicians to say they are appointing "originalist" judges and for scholars to don the mantle of originalistm as a symbolic gesture, when all they are really doing is employing a values-driven approach to constitutional law, just like the Warren Court did (although most of the time embracing different values). 

In other words, there is little originalism left in the New Originalism, making it difficult for scholars, judges, and anyone else interested in constitutional law to have meaningful conversations about originalist methods of constitutional interpretation. It is like saying Shaq is not tall.  People can of course describe him any way they want to, but describing Shaq as not tall would make a serious discussion of who else is tall more challenging than fruitful.


Joe said...

"originalist" probably always had a certain Calvinball quality

Shag from Brookline said...

In this day and age of multiple amici briefs being filed in a case before SCOTUS, imagine a case in which separate briefs are filed by (1) Balkin, (2) Barnett, (3) Solum, (4) Baude/Sachs, (5) Whittington, (6) Somin, (as well as additional New Originalists) addressing a constitutional issue before SCOTUS that under New Originalism is in the so-called "construction zone," but these briefs differ as to the appropriate construction. What's not clear under the New Originalism are the standards for determining such construction. Can such standards be determined as of the time of ratification of the constitutional provision in issue that cannot be "interpreted" because the original meaning is unclear. Recently, however, Barnett and Bernick call upon determining the "spirits" back when in this regard

By the way,my moniker, Shag, has been confused with Shaq over the years. But I'm short in comparison to Shaq and I can't dunk. But perhaps Eric may do some dunking at the Conference. I have faith in Eric, even though he can expect to be triple-teamed.

Query: I wonder how New Originalists might construe the Emoluments Clauses in the "construction zone," perhaps as "Trump Towers"?

John Barron said...

The only way that Prof. Segall can make his case is to ignore the historical evidence in its entirety.

We know what Madison had in mind when writing the 9/10Am because he freakin TOLD US! In introducing his draft of our BoR to the House, he 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 456 (1789) (remarks of Rep. Madison).

With this as a starting point, you don't need to strain to get to the Balkin or Somin reading of the law. Marriage is a simple contract; society can impair our liberty to contract (cf., Lochner), but only for good cause (sorry, Randy Barnett!). The 5/14Am only protect the rights of "persons"--which, in 1791/1868, did not include the fetus. It takes chutzpah to argue with a straight face that the right of adults to engage in consensual relations was ceded to the government in COTUS, and even Segall concedes that Brown is an originalist decision. Once a wrong is admitted, “the courts will look far to supply a remedy,” DeLima v. Bidwell, 182 U.S. 1, 176-77 (1901), including forced busing.

Originalism is grounded in contract and consent. If Georgia State started paying Segall in Jamaican dollars, he'd be more than a little upset. COTUS is the document we signed (technically, unless you emigrated, it's an adhesion K), and that is what we agreed to. Or to be more precise, that is what the Framers' generation agreed to.

Say the phrase "judicial Power" to a Colonial attorney, and he would know what it meant. He could cite Bacon, Locke, Blackstone, and an array of English precedents, which Thomas Jefferson summarized in a single phrase: "Let the judge be a mere machine." Segall's LC would precipitate sheer horror.

Originalism is a principled and disciplined approach to the interpretation of contracts. Its singular virtue is that it limits the discretion of the judge. Under the Segall paradigm, COTUS is quite literally rewritten on a daily basis on an ad hoc, ex post facto basis--and that is not law.

John Barron said...


The standards of construction were well-established. Words have meaning. Pacta sunt servanda. It is the office of the judge to always “make such construction [of any 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 (Exch.). Most of the canons we learned in LS were grounded in common sense. Many were borrowed from the Roman ius civile, and all were in general use long before 1789. Ejusdem generis. Expressio unius est exclusio alterius. There's a pretty complete list here:

Take this famous statement: "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." Marbury, at 174. Did CJ Marshall invent that rule, or was it a pre-existing one? Was the "Rule of Charming Betsey" invented in that case, or did it have a foundation in older law? You'd be hard-pressed to find canons that weren't in use in 1789.

As for obscure phrases such as "impeachment" and "emoluments," I will defer to those who have done the research. (Josh Blackman filed an amicus in the CREW case on behalf of a historian arguing for a narrow interpretation of the latter.)

Shag from Brookline said...

John, nowhere in your two comments do you commit to whether you are of the New Originalism school or some other variation of originalism. Eric's post focuses on New Originalists. My comment focused on New Originalism. I realize you have lots of latin expressions at your fingertips as one well versed in the Austinians [sic] and seem to be a multi-tasking originalist. But with so many versions of originalism, a scorecard is needed. As to CJ Marshall's famous statement, how did that apply to the 2nd A's prefatory clause? By the way, the "construction zone" can be a constitutional sinkhole for the New Originalism.

John Barron said...

We've been over this ad nauseum, Shag. Gone through a number of examples, from Roe to Shelby County to Alden to Obergefell. Originalism is an analytical process, applying an array of common-sense rules in a principled and transparent manner. The original public meaning rule is a necessary consequence of contract/treaty law; the subjective intent of the parties can't be discerned without a seance, and is therefore inadmissible if the text is clear. Berger and Bork were in the right church, but the wrong vestibule.

The classic example is SSM. The right to contract was retained, subject to the powers granted to the feds under the Commerce Clause and state constitutions. The government's powers in this area are not plenary; to hold otherwise is to abolish the right. Hence, it follows that the State can only impair contractual rights for good cause. No one in the Framers' generation would have seriously contemplated SSM, but their silence on the matter means that we're saddled with the plain meaning of the text.

Bork would dismiss the 9Am as an inkblot; Barnett sees it as a bulwark. Thanks to the representations of Madison (and the Marshall statement), Barnett has the better of the argument. Marriage is a simple contract, and the State couldn't come up with a reason sufficient to deny SSM. Ergo (thanks to the 14Am), state bans are unconstitutional.

Are there other ways to get there? Yes. But this one is rational and dispassionate.

Prefatory clauses are not a source of binding law. How do you translate "in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity" into enforceable law?

No big fan of guns, but COTUS means what it says and says what it means.

The sophistic demand that originalists produce an unassailable Unified Field Theory of Everything misses the point. You can either give judges a little discretion, or a lot. Originalism, enforced through the Good Behavior Clause, takes away a lot of discretion, protecting us from the scourge of judocracy.

The fatal flaw with your Living Constitution is that the changes effected by judges are post hoc, and ex post facto. Under your paradigm, I can read COTUS and the entire U.S. Reports until I go blind, but can't know what the law is, and adjust my behavior accordingly.

Unless and until you solve that problem, the LC isn't even a viable alternative. Thus, by default, originalism wins.

Shag from Brookline said...

Has originalism (of whatever variety) been the winner in the current SCOTUS? John, perhaps you have in mind your alter-ego Trump concept of what constitutes a "win." Being a generic originalist is being a "loser." You still duck whether you are a New Originalism cultist. Common sense? A chain is said to be no stronger than its weakest link. Weak links have been demonstrated in the variety of versions of originalism, including the current top originalism dog New Originalism. Eric with this post exposes one of New Originalism's weak links.

John Barron said...

Odd comments, Shag.

S: "John, perhaps you have in mind your alter-ego Trump concept of what constitutes a "win." Being a generic originalist is being a "loser.""

Another 17 in the morgue. Still celebrating your big win in Heller? Go ahead and take another victory lap.

This is not about winners and losers. It's about the right way to interpret COTUS.

We are doing it wrong; the why is unsurprising. Scalia admits that his own Court was often tempted toward “systematically eliminating checks upon its own power; and it succumbs.” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 981 (1992) (Scalia, J., dissenting). Judge Posner adds that there is "a pronounced political element in the decisions of American judges," and that the evidence of this is "overwhelming." Posner, How Judges Think at 369. Your sweetheart (and, Elton John stunt-double) Elena Kagan calls it "the problem of Platonic Guardians." Max Boot calls it "gavelitis": that we need a King, and they should be our King.

You will understand if I forcefully dissent.

S: "A chain is said to be no stronger than its weakest link. Weak links have been demonstrated in the variety of versions of originalism, including the current top originalism dog New Originalism."

You can't beat something with nothing, and you have fifty shades of bupkis. The fatal flaw with your Living Constitution is that the changes effected by judges are post hoc, and ex post facto. Under your paradigm, I can read COTUS and the entire U.S. Reports until I go blind, but can't know what the law is, and adjust my behavior accordingly. Even if originalism has a weak link--Eric hasn't come close to demonstrating that--the LC doesn't even have a chain. In the words of Robert Bork, "[t]he requirement that the Court be principled arises from the resolution of the seeming anomaly of judicial supremacy in a democratic society. If the judiciary really is supreme, able to rule when and as it sees fit, the society is not democratic." Bork, Neutral Principles at 2.

The notion that the Framers fought a revolution to replace King George with King Judge is a truly remarkable flight of folly. As the Continental Congress observed,

"...[i]f it was possible for men, who exercise their reason to believe, that the divine Author of our existence intended a part of the human race to hold an absolute property in, and an unbounded power over others, marked out by his infinite goodness and wisdom, as the objects of a legal domination never rightfully resistible, however severe and oppressive, the inhabitants of these colonies might at least require ... some evidence, that this dreadful authority over them, has been granted to that body."

Where do you find the legal authority for the judicial veto of even COTUS itself in that document? Certainly, not in the grant of the "judicial Power." Did you find it in your Depends? Seems like judges have a nasty habit of doing that. But the power to jettison the 7Am, the 11Am, and Good Behavior Clause, and/or invalidate treaties by construction cannot be inferred from any then-extant definition of the term.

It's the old saw about the man running from a bear. Originalists don't have to outrun the bear--all they have to do is outrun you LC cultists.

Asher Steinberg said...

"Baude and Sachs have taken originalism almost full circle to embrace both the methods and the results of decisions that most people think exemplify living constitutionalism."

The methods, yes; they claim those opinions exhibit originalist reasoning. But their articles make no claims about the correctness of these cases' results as an originalist matter.

Shag from Brookline said...

John, it was you who declared at the close of your 11:11 PM comment:

"Thus, by default, originalism wins."

That's your alter ego Trumpian verbiage. With all your depredations of the judiciary, how is originalism the winner by default, or otherwise? You continue to avoid a commitment to a particular variation of originalism. Rather, you support any and every version? As for a judicial veto built into the Constitution, I have have observed many times at this and other legal blogs that the Constitution does not specifically provide for horizontal judicial supremacy over the Legislative and Executive Branches. I don't know if originalism claims such judicial supremacy. It's not clear to me that LC does. The Constitution's Supremacy Clause does not resolve this.

The Revolution replaced King George with the Articles of Confederation that did not provide for a judiciary. The problems with the Articles led to Article III of the Constitution, in addition to a comparatively strong central government. In both the Articles and the Constitution their respective Framers did not specify the manner in which each document was to be interpreted and/or construed. Both documents were rather novel and significantly different from the then law regarding contracts. The Constitution sought to bind people who did not "consent" to it. Many law review articles have been written on the concept of such "consent." How's that work out with contract law back then?

With regard to your old saw about running from a bear, is that another part of your Trumpian alter ego vis-a-vis a Russian bear?

By the way, did the Constitution incorporate the Declaration? I can't seem to locate such a provision in the Constitution. Perhaps for the New Originalism that would be found in the "construction zone"? But then, you haven't committed to the New Originalism.

John Barron said...

Shag: "In both the Articles and the Constitution their respective Framers did not specify the manner in which each document was to be interpreted and/or construed."

In bestowing the "judicial Power" on judges in Article III, they did so with precision, as every lawyer of that time knew what that phrase of legal art meant.

From time immemorial, it had been universally understood that the office of the judge was jus dicere—the power to declare the law, as opposed to writing it. Francis Bacon, Essays LVI (Of Judicature) (1620). Alexander Hamilton explained that, to “avoid an arbitrary discretion in the courts, it is indispensable that [our judges] should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case before them.” The Federalist No. 78, at 470 (I. Kramnick ed. 1987) (A. Hamilton). Blackstone wrote that a judge’s duty to follow precedent derived from the nature of the judicial power itself: a judge is “sworn to determine, not according to his own judgments, but according to the known laws.” 1 Blackstone, Commentaries at 69. A century earlier, Lord Coke wrote that “[i]t is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion.” 1 E. Coke, Institutes at 51 (1642). Jefferson crystallizes the thought with his usual brilliance: "Let the judge be a mere machine." Thomas Jefferson, Letter (to Edmund Pendleton), Aug. 26, 1776.

Gibbon observed in his magnum opus on the Roman Empire that “the discretion of the judge is the first engine of tyranny.” 1 Edward Gibbon, The History of the Decline and Fall of the Roman Empire 97 (ed. M.F. Guizot, 1844) (1776). No truer words were ever spoken.

As Madison avers, there is one and only one proper way to interpret the Constitution:

"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).

While testifying under penalty of perjury, every sitting Justice agreed emphatically with that sentiment. Justice Sotomayor notes that the “intent of the founders was set forth in the Constitution. They created the words; they created the document. It is their words that is the most important aspect of judging.” Justice Thomas asserted that his job as a judge is “to interpret [lawmakers’] intent, not to second-guess” it. Chief Justice Roberts adds that “the Framers were willing to have the judges decide cases that required them to interpret the Constitution, because they were going to decide it according to the rule of law.”

There is no contrary authority. And certainly, there is no warrant for your view that the Framers fought a revolution to replace King George with King Judge.

Shag: "Both documents were rather novel and significantly different from the then law regarding contracts."

COTUS wasn't novel. Every state but Rhode Island had a written constitution, and many were governed by charter for more than a century.

As a matter of law, COTUS is a treaty between independent States, which superseded the old Articles of Confederation. Since time immemorial, the law of contract--especially, the doctrine of pacta sunt servanda--governed the interpretation of treaties. And it still does. See, the Vienna Convention.

More unsupported bullshit from the Shag-man.

John Barron said...

Shag: "That's your alter ego Trumpian verbiage."

The obligatory insult. How ... original.

Your argument was already vanquished by Bork: "If the judiciary really is supreme, able to rule when and as it sees fit, the society is not democratic." By definition, your LC empowers judges to disregard Congressional findings of fact (Shelby County), rewrite any statute they disapprove of (Hively), void treaties (e.g., the ICCPR), grant themselves absolute immunity in tort (Stump v. Sparkman), and even rewrite COTUS itself (Alden v. Maine).

Who in their right fuckin' mind would agree to that deal?

You can have a living Constitution, or a functional Republic. You cannot have both.

Shag from Brookline said...

John, going back again to what you declared at the close of your 11:11 PM comment:

"Thus, by default, originalism wins."

are you now suggesting with the close of you 6:56 PM comment:

"You can have a living Constitution, or a functional Republic. You cannot have both."

are you suggesting (a) we have a functional Republic today because "originalism win" or (b) we don't have a functional Republic today because we have LC?

If your battle is with the judiciary, where has originalism won, at the Originalism Blog and the Legal Theory Blog? Perhaps you may believe we should revert to the Articles of Confederation to Make America Original Again.

By the way, you seem to be claiming that I claimed the judiciary is supreme. Reread the second paragraph of my 3:59 PM comment on the matter of horizontal judicial supremacy.

John Barron said...

Shag: "are you suggesting (a) we have a functional Republic today because "originalism win" or (b) we don't have a functional Republic today because we have LC?"

Asked and answered ... in gruesome detail. B. Obviously.

Shelby County, Hively, and especially Alden wouldn't happen in an originalist regime, because the losing party could remove judges from the bench under the Good Behavior Clause. Judges generally want to keep their jobs, and if they say "not X" when COTUS says "X," they would have no credible defense.

Let's do the math. “In all Cases … in which a State shall be Party, the supreme Court shall have original Jurisdiction. U.S. Const. art. II, § 2, cl. 2. And no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. If a legal duty is owed to a plaintiff by a State and it failed to discharge it, it is a proper party defendant, which may be sued in SCOTUS.

And as Justice Stevens explains,, the 11Am did not change that. (Segall agrees with me on Alden, fwiw.)

The Justice who invokes sovereign immunity would find himself unemployed in short order.

But under your precious LC, judges can do what--in Segall's words--"whatever they damn well please." "We are infallible because we are final." And COTUS provides no shelter in the hailstorm of judicial caprice.

Shag: "By the way, you seem to be claiming that I claimed the judiciary is supreme."

True by definition. When a judge can even rewrite pellucid constitutional provisions like the 11Am, the judiciary is supreme. Your LC doesn't prevent Alden. Ergo, you own it.

Shag from Brookline said...

John harps (in an un-heavenly manner, even though originalism is faith-based) on the judiciary for his claim that we don't have a functional Republic today because we have LC. But what explains the dysfunction of the elective branches? Perhaps John could annotate Article III of the Constitution to explain pellucidly the original public meaning of Article III in looking back at SCOTUS decisions that have defiled the Constitution even recently.

Recall this reported episode following the close of the Constitutional Convention in 1787:


The deliberations of the Constitutional Convention of 1787 were held in strict secrecy. Consequently, anxious citizens gathered outside Independence Hall when the proceedings ended in order to learn what had been produced behind closed doors. The answer was provided immediately. A Mrs. Powel of Philadelphia asked Benjamin Franklin, "Well, Doctor, what have we got, a republic or a monarchy?" With no hesitation whatsoever, Franklin responded, "A republic, if you can keep it."


Centuries later, John says we can't.

Query: How much debate took place at the Convention on Article III? Pellucid may be in the eye of the Latin scholar invoking Putarch and the Austinians [sic] in explaining original public meaning. But of course we have the post-Convention Federalist Papers of three of the conventioneers and various states' ratifications closer in time to 1787.

ERGO, John, GFY (Latin version reserved).

Shag from Brookline said...

Speaking of originalism and in particular Heller (5-4, 2008), combined with Citizens United, we once more see demonstrated the meaning of "blood money." Someone tweeted certain Republicans on Parkland by setting forth NRA contributions each received over the years. In Heller, SCOTUS displayed its dysfunction in the name of originalism by ignoring original public meaning. But the elective branches have been dysfunctional on addressing gun massacres. Perhaps if there were open/closed carry rights in the halls of Congress and SCOTUS ....

John Barron said...

You're rambling, Shag.

Take the Bribery Yields Fantastic Returns Act of 2017. Lindsey Graham openly admitted that large R donors would cut off their allowance if they didn't raid the Treasury on their behalf. And a few days after the bill was signed, Paul Ryan got $500,000 in his coffers from the Kochs.

Bribery. Honest services fraud. Couldn't be any clearer.

In an originalist world, there is a remedy: private criminal prosecution. Donald Trump could have been held accountable for Trump U. Clarence Thomas could have been called to account for those fraudulent EIGA forms. But today, lawlessness hides under the cloak of "prosecutorial discretion."

No other country in the Anglo-American legal tradition has abolished private criminal prosecution. And most of the civilised world has it in some form. If we were fortunate enough to live in Australia, one of us could have petitioned to have a GJ hear evidence regarding Thomas and his EIGAs--and as any taxprof can tell you, getting an indictment would have been a job for a 2L.

How much debate was there regarding Article III? Not that YOU would know, but not a lot was actually needed. We had thirteen colonies with fully-functioning legal systems, and all followed the British model. The Articles of Confederation created a legal system in the Northwest Territories, even though it did not have the power to impeach. Everyone conceded the value of good behavior tenure and the jury trial in controlling the courts, and not a lot of tweaking was needed.

There wasn't much debate regarding impeachment, emoluments, or pardons, either. Doesn't mean we can't impeach Dolt45.

If you have read the debate, you know that it was reasonably robust. The Federalist and the Anti-Federalist responses were of uncommon quality, but similar debates were being held in every quarter of the land. To suggest that they didn't think about it doesn't pass the smell test.

What explains the dysfunction of our other branches? Read Washington's farewell address to the nation and the Federalist and get back to me. Faction was the Achilles' heel of the Framers' design; not listening to their sage counsel is the proximate cause of our current morass.

Will stop here to ensure that some response gets posted.

Shag from Brookline said...

John, you took a lot of words to "respond" to Franklin in hindsight that we can't keep a Republic.

Nice effort, John, to go back to Washington's Farewell Address, etc, to explain the dysfunction of the elective branches. Back in those days, we had the Militia, covered by the Constitution's Militia Clauses. Recall the 2nd A prefatory clause on the Militia. The bill of rights did not amend the 1787 Constitution's Militia Clauses. That was accomplished in Heller (by 5 inJustices, 2008), the "Guns R US" decision.

John Barron said...

The LC requires a blind faith in the virtue of judges, who have assumed the role of Platonic Guardians--our de facto rulers. Putting blind faith in a Neil Gorsuch or an Allison Eid is sheer folly, but that is what you are left with.

The other side got to choose our rulers.

You keep whining that originalism requires faith, but can't say what we are supposed to have faith in. All we're saying is that words have meaning, and that if you don't like COTUS as is, you can always change it.

Quite to the contrary, a rational lack of faith in our fellow man is part of what makes originalism so attractive. I'd rather have the term "person" defined by someone other than Judge Phyllis Schlafly, but that's just me.

And that is what this is all about. Judge Shag Schlafly hates guns, Gollum! COTUS does not say what he wants, and he doesn't like it. (Problem is, under his LC, COTUS means what Neil Gorsuch says it means.)

He can't get over the fact that in Heller, Scalia had what was adjudged to be a better argument. That's what happens when the other side chooses our rulers.

And now, he's whining about "blood money." (You know you are scoring major blows when your opponent resorts to arguments like "Go fuck yourself!")

Shag from Brookline said...

Gee, John, most legal academic originalists and conservative Republicans laud the appointment of Justice Gorsuch as a pure originalist. Are they all out of step but you? And you denigrate Justice Thomas, a self-described originalist. So if as you claim "originalism wins by default," where is that "win" celebrated other than in the minds of Republican Senators, and you. John, you are obviously a "barren originalist."

John Barron said...

Shag: "John, you took a lot of words to "respond" to Franklin in hindsight that we can't keep a Republic."

I'm in the habit of presenting reasons for my positions. Funny that way--it must be the lawyer in me. You should try it some time.

Why are you trying to re-litigate Heller? You don't believe in originalism, and you got what you wanted: an LC decision by our Platonic Guardians. "We are infallible because we are final." They voted; you lost. Under the LC, you have no recourse.

John Barron said...

Shag: "And you denigrate Justice Thomas, a self-described originalist."

Scalia was, too. But in practice, both Barnett and Segall accurately describe him as an originalist of convenience on the bench. I judge on performance, and cases like Alden v. Maine, Shelby County, and Obergefell argue against Thomas's fealty to originalism.

The jury is technically still out wrt Gorsuch, but like Gandalf in Lord of the Rings, I no longer doubt my guess.

Shag: "So if as you claim "originalism wins by default,"

In the abstract, originalism wins. In the real world, power corrupts, and absolute power corrupts absolutely. Our only hope for salvation lies in originalism, as it is the only system that divests our Platonic Guardians of absolute power.

That much has been made clear, but as progressive wag Upton Sinclair once quipped, "It is difficult to get a man to understand something, when his salary depends on his not understanding it." You don't want to understand my position, to say nothing of working it through.

Shag from Brookline said...

As I recall, John, your "original position" on this Blog was while rehabbing from dual knee replacement, presumably resulting from your extensive praying and faith in originalism. You are obviously not a secular originalist. I understand your position and disagree with it.

By the way, John, you have a habit of quoting me out of context. at 9:58 AM I said:


So if as you claim "originalism wins by default," where is that "win" celebrated other than in the minds of Republican Senators, and you. John, you are obviously a "barren originalist."

at 10:39 AM you said: Shag: "So if as you claim "originalism wins by default,"


John Barron said...

Shag: "I understand your position...."

I can find no objective evidence to support that claim.

Shag: "where is that "win" celebrated"

Asked and answered. In the real world, you won ... and Parkland High is covered in blood. Go ahead and take that victory lap.

Shag from Brookline said...

John, on this thread you have twice used the phrase "asked and answered." It's obvious you are still rehabbing and watching "Law & Order" re-runs to keep you current on the law - with verbosity.

By the way, John, I understand your position and there is no objective evidence to support your position, only your faith. Throw some more "Hail Mary" originalism.