Barnett v. Sunstein

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First rule of law prof Fight Club: The party of the first part shall be bound by certain nondisclosure rules pertaining to activities in or around aformentioned law prof Fight Club, subject to the provisions of subclause… no, no, never mind. But head over and check out the ongoing bout at Legal Affairs between Cass "Big C" Sunstein and Dandy Randy Barnett over the "Constitution in Exile" movement. Starting with an argument over whether there's any such thing as a "Constitution in Exile" movement.

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  1. From the very beginning:

    “To some, restoring the “Constitution in Exile,” as Judge Douglas Ginsburg dubbed it in 1995, means having the federal courts encourage freedom. To others, it’s the signature of a movement to roll back health, safety, and wage regulations to where they were 70 years ago, before the Supreme Court embraced the New Deal.”

    Hmm, those things aren’t necessarily mutually exclusive!

  2. For my part, I believe that the US Constitution is the greatest political document ever written, and that it has been ignored from Day 1. To quote Sunstein in her opposition:

    “Do you believe that the national government can discriminate on the basis of race and sex? Can the national government segregate the public schools in the District of Columbia?”

    This, apparently, is an argument against an “originalist” view of the Constitution. But as far as I can tell, this discrimination and segregation is only possible by actively ignoring the Constitution. Where does that document give Federal powers over discrimination and segregation? Maybe I’m mistaken, but I thought it severely limited national power, and that actions taken in those awful directions should be seen as unconstitutional activism.

    Unforunately, the cultural blind-spots of our forefathers are often used as a reason to disregard the ultimate point of the Constitution (ie, National Gov’t must be severely limited). The founding fathers were even smart enough to indlude a perfectly valid method of changing the Constitution, should the need arise…and it didn’t involve the judiciary.

    As much as I may disagree with Scalia, he’s dead on when he says that to accept the total idea of a “living consititution” is to give judges to power to make law based on the whims and desires of any given age, in which case there’s zero point talking about this constitution or any other.

  3. “All men are created equal- no amendment needed here”

    -from a Gil Scott Heron track which I can’t remember. Google is not giving it up. Heard it a long time ago, and that line always stuck in my head.

    I agree that it’s a brilliant document, but, like any sacred text, it’s either sacred or it’s not- notice how Christians will go through any amount of logical contortion in order to think of the Bible as infallable truth, because to admit it has even minor flaws (it was written by humans after all) or has things that are culturally specific to its time, opens the whole thing up to questioning (can’t have that in a sacred document!). Same with the constitution- the 3/5 of a man problem casts a pall on the whole document. And should, in my mind, give healthy pause to treating it like a sacred parchment. However, it is a great enough document that it should hold up well in any age to questioning. Problem is, people don’t really think about it anymore. Current public political debate only references the constitution in terms of how it affects their own favorite issues, instead of considering the broad philosophy behind it.

  4. The problem is that I don’t think the constitution is sacred and certainly not infallable. Of course, the constitution itself admits as much. We have a perfectly good, though difficult, process by which to change it. It gives no recourse for the judiciary to change it, nor do I believe it should. Really, either we have a constitution or we don’t, and we really haven’t for awhile. It’s ignored or condoned depending on which way the political winds blow. But I really do have a problem with equating a closer following of the constitution with racism and slavery. The founding fathers may well have been hypocrites, but we should decry their actions and not their ideas.
    ———————————————

    “All men are created equal- no amendment needed here”

    Amen.

  5. Some thoughts:

    1) Cass Sunstein, despite the name, is a he
    and not a she.

    2) Cass Sunstein is very smart and very slimy.

    3) Will Cass’ entourage of geeky lefty wonks
    get together with Randy’s entourage of hot
    young libertarian things? 🙂

    Jeff

  6. Ah … now I have looked at the thing.
    Sunstein’s first slime is to refer to
    originalism as “fundamentalism”. That
    sure advances the debate.

    I have always wondered whether folks who
    dislike originalism and prefer a “living”
    constitution would like to work under a
    “living” employment contract in which agents
    appointed by their employer to life terms
    could change the terms of their employment
    contracts at will. I suspect they would not.
    The whole living constitution position is
    intellectually vacuous in a really deep way.

    Jeez. For Randy this will be shooting fish
    (albeit slimy fish) in a barrel.

    Jeff

  7. The constitution, even here, is only referenced.

    As I get older I have more and more trouble dealing with ANYONE’S bitching about its strengths and weaknesses when the very forum discussing it not only doesn’t have a copy ‘on hand,’ but provides no link to it either. (maybe I missed it?)

    Many of the publications that kick around the constitutionality of this or that seem unable or unwilling to print the entire document unless it’s a shrunken picture of a photocopy; difficult to read, at best.

    Then, to add insult to injury, a narrow light is shone upon ‘choice’ events that shaped its writing without consideration of others, leaving an uneven impression of what really went on in the hallowed halls of America’s birth.

    If art truly imitates life then that shrunken image of the constitution found in so many publications is indeed an accurate indication of its perceived worth.

  8. I have always wondered whether folks who
    dislike originalism and prefer a “living”
    constitution would like to work under a
    “living” employment contract in which agents
    appointed by their employer to life terms
    could change the terms of their employment
    contracts at will.

    OK, first let me make it clear that I’m not a big fan of a “living” Constitution. But I do want to take issue with your analogy. Most employment contracts usually stipulate that the arrangement is “at will”, meaning that the boss can pretty much fire you when he wants within the (usually) loose terms of the contract.

    That certainly has many economic advantages, but let’s not kid ourselves: the “at will” nature of employment means that, in practice, an employer can make quite a few demands (within reason). The arrangement is, in many ways, a “living” one. So it isn’t the best analogy.

    People on this forum frequently defend the prerogatives afforded to bosses under “at will” employment arrangements. Typical exchange goes something like this: Somebody posts an article about an employee who got fired for smoking or having a Kerry bumper sticker, Jennifer complains, and then everybody else goes after her with a reminder that this is part of the free market, yadda yadda.

    Anyway, let’s not get carried away with the alleged virtues of iron-clad employment contracts when we all know that soon enough a lot of people here will be going on about how bosses should have discretion, yadda yadda.

    (FWIW, I think that “at will” arrangements are, from a consequentialist perspective, a net benefit. Yes, Jennifer, I know, some real assholes get away with a lot of crap because of it. And yes, everybody else, I know, consequences shouldn’t matter, just the sacredness of economic freedom, yadda yadda. But there is good evidence that “at will” arrangements keep unemployment down. For instance, the Economist regularly points out that countries with less flexible labor markets have higher unemployment rates and attract less foreign investment. If it’s hard to fire somebody then an employer will be more cautious about hiring. Anyway, I know that some people will fault me for taking the side of bullies, and others will fault me for not insisting that principles are good enough on their own regardless of consequences, but that’s where I stand.)

  9. “For my part, I believe that the US Constitution is the greatest political document ever written…”

    Articles of Confederation all the way, baby!

  10. Like most posts above, I don’t necessarily like the idea of a “living constitution” that changes at a whim. However, I find two problems with the “originalist” line of thinking.

    First is that, like any other law, the Constitution contains many passages and words that are subject to interpretation. Only the people who wrote it knew what they intended by each passage. None of the current justices (or anyone else) can really claim to know what the “original” intent of the drafters was. Claiming to follow the “original” intent can just as easily be a fancy way of dressing up your particular political views and achieving your own political ends. It might sound better, but it isn’t necessarily any different from what the other side (purportedly) wants to do. As an aside, it also seems somewhat strange to imagine the founders creating the constitution as some sort of straitjacket that restricts future generations from subtly changing how the law is interpreted (as opposed to more dramatic changes, for which amendments are required).

    The second is the specious claim that judges are only supposed to follow the law and not make the law. Since we have a common-law tradition, it is the right and the duty of judges to analyze, follow and occasionally change the law when the law no longer serves the purpose for which it was intended.

    Of course, results-based jurisprudence isn’t a good idea either. But if forced to choose between getting a reasonable result and having clear (but inflexible and undesirable) law, i’d rather err on the side of the reasonable result. It seems like there ought to be a happy medium somewhere between these two extremes. Anyone have any ideas on how to get there?

  11. Thoreau’s points are, as usual, wise and
    thought-provoking. However, I would make the
    reverse point about my analogy. Some flexibility
    in employment contracts is likely to be good
    precisely because the employment contract is at
    will. If an employer or employee gets carried
    away with their flexibility, the other party
    can call it quits and leave. In contrast, as
    was demonstrated at some expense in the 1860s,
    with the US constitution (one might say the US
    contract), you can check out but you can never
    leave. This makes it all the more important, I
    would say, to limit flexibility, as there is no
    “exit” option.

    The new EU constitution shares this dreadful
    “no exit” property as well. Bad idea in my
    view.

    Jeff

  12. I think we all will eventually come to grips with the idea that constitutions are written to be ignored. At first crisis, you throw out every bit of inconvenient interpretation with the full support of the populace. After that, you appeal to precedent. The constitution is only good for what Julian a while back dubbed ‘easy cases’.

    It can’t be used by any movement to roll back popular programs, even if they blatantly violate certain written provisions. If you want to get rid of government programs, you have to make them unpopular rather than appeal to the constitution. That line of reasoning only appeals to the converted. Everyone else hears “Blah blah blah, you don’t get free shit, blah blah blah.”

  13. Try this arguement out on the living constitution crowd and see how they like it:

    Well sure the founders set the term for Presidents for four years, but back then how could they even imagine having to fight a war on terror. The Constitution needs to evolve, change with the times. We really need Pres. Bush’s leadership and commitment to win and we will still might be fighting in Jan. 2009. So we’ll just keep him in office until he tells us he’s done.

  14. A little background on employment at will (tangential, but thoreau will probably think of a way to bring it back to the point).

    Employment contracts are very difficult to enforce against the employee. Essentially, any employee can walk at any time, and the employer has no way to get a court order to force her to come back to work. Even the prospect of collecting damages is legally remote.

    From the employee’s perspective, then, all employment contracts are at will. Under a contractual doctrine known as mutuality, then, the presumption is that a contract terminable at will by one party is also terminable at will by the other.

    Its only fair, you see.

  15. Try this arguement out on the constitution in exile crowd and see how they like it:

    Well sure the founders set what issues the federal government had jurisdiction over, but it never mentions regulating marriage. Since the constitution doesn’t mention control of marriage as a function of the federal government, the passage of DOMA is clearly unconstitutional. Those nice boys that married each other in Massachusetts needs to have their marriages recognized without the federal government overstepping their bounds and saying no.

    And then just watch the apoplectic fit that it induces.

  16. First is that, like any other law, the Constitution contains many passages and words that are subject to interpretation. Only the people who wrote it knew what they intended by each passage.

    Those people left behind a wealth of speeches, letters, and papers (such as the Federalist Papers) explaining their interpretation of the Constitution’s words. And, although they haven’t left behind enough to solve every debate, they have left enough behind to know some important things. Like, for example, that the general welfare clause was a throwaway line copied from the Articles of Confederation used to summarize and introduce the specific powers that follow it, rather than a grant of infinite power to spend tax money on whatever Congress decides to be for the “welfare” of the people. It is areas such as that where modern jurists ignore the original meaning of the Constitution — and that’s hardly a minor change. Records show this was a major bone of contention while states were ratifying the Constitution — they wanted and got explanations from the likes of Madison and Jefferson saying the general welfare clause on its own granted no power. Alexander Hamilton was the only Founder I know of who strongly took the modern view of the general welfare clause — but that matter was supposed to be put to bed by the Tenth Amendment, which was explicitly designed to clarify the clause in favor of the interpretation of Madison, Jefferson, et al. and reject Hamilton’s view. No wonder Hamilton was against the Bill of Rights.

    The 1937 reinterpretations of the general welfare clause and commerce clause effectively reopened the issue and established for all time the dominance of the Hamiltonian view, in spite of the Tenth Amendment. Note that no Amendment since 1937 has granted the federal government additional powers, as was done earlier in the century with Prohibition and the income tax. There’s no more need for such Amendments, as Congress now has the power to do whatever it deems for the “welfare” of the people.

    James Madison would be especially pissed about this. His view was that an expansive interpretation of the GWC would change the entire character of the US Government, for the worse. He maintained that things like public charity were to be carried out by the states and the states only.

  17. Try this arguement out on the constitution in exile crowd and see how they like it:

    I like that fine. No apoplectic fit here. I don’t know whether I count as part of the “constitution in exile crowd” though, since I think the Constitution has been circumvented and undermined since the day it was committed to paper. Whether it is 1800, 1900, or 2000, legislators and jurists have no problem ignoring it when it furthers their other goals. Thus, returning to 1920 or 1787 isn’t what I have in mind.

  18. metalgrid- that’s why people like Santorum want to pass an amendment. Just because congress passed DOMA doesn’t mean they don’t know it’s unconstitutional.

    As for Barnett, trying to lump him in with “originalists” seems a stretch. His ideas about liberty and the Ninth put him in conflict with luminaries such as Bork and Scalia.

  19. No argument that the commerce clause is, in current jurisprudence, ridiculously overbroad. And i’m not saying it’s impossible to sometimes discern what the intention of the drafters was through parol evidence (if you’ll pardon the contracts analogy). I’m just saying that their interpretations shouldn’t necessarily be the end of the inquiry. Interpretation of the law does need to mesh (at least at some level) with what people expect. If an interpretation can be altered or updated without doing violence to the spirit of the Constitution, then I don’t really have a problem with it. Of course, i’m not sure exactly where that line is, but I think both sides are pretty far from it.

  20. Just a small point about originalism, Scalia and the phrase “all men are created equally”. First, there is ample evidence that at the time, men really did only mean “males of european descent”, there is ample evidence and case law that at the time everyone else, even if apparently born of a human mother, might not be human, and instead could be property. Secondly, the phrase is not in the constitution, it is in the Declaration.

    The reason the second point is so significant is that Scalia, one of America’s chief supporters of originalism, just recently came out agains a very important and significant idea that is contained in the Declaration of Independence. Here is a link to a slateslate article about it. The Declaration states “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,”

    While the slate article points out Scalia’s state of mind(from the bench) “Scalia’s even bolder statement that the commandments are “a symbol of the fact that government derives its authority from God,”

    Which is probably what he does think. To Scalia, originalism may actually take us to a time before white men even reached the shores of “America” to a time when “the creator” did not make men free, but instead made governments that we are obliged to submit to. A definitely pre-originalist theory.

  21. PS: Kennedys use of the phrase “Life, Liberty and the pursuit of Happiness.” in Lawrence v Texas does seem to have enraged Scalia. Further suggesting that “originalism” might not be what it seems to be.


  22. I like that fine. No apoplectic fit here. I don’t know whether I count as part of the “constitution in exile crowd” though, since I think the Constitution has been circumvented and undermined since the day it was committed to paper. Whether it is 1800, 1900, or 2000, legislators and jurists have no problem ignoring it when it furthers their other goals. Thus, returning to 1920 or 1787 isn’t what I have in mind.

    I doubt you count as one. There are two sides to this whole thing:

    – The Living Document crowd who want to interpret the constitution to support their agenda.

    – The Constitution in Exile crowd who want to interpret what men who’ve been dead for several hundred years were thinking in order to support their agenda.

    Actually there’s probably more than 2 sides, but the ones that continuously harp on this issue over and over generally seek justification to support one agenda or another, and both sides are just as guilty of fabricating and interpreting as the other.

  23. The Constitution in Exile crowd who want to interpret what men who’ve been dead for several hundred years were thinking in order to support their agenda
    This may be where Bork sits, but it is not where Barnett sits. There is an enormous difference between original intent (what you describe) and original meaning. Original meaning deals with what the works/phrases meant in the context of the common language in use a the time of writing. I’ve yet to see a good argument that disputes the validity of original meaning without undermining the validity of the Constitution as a just foundation for the laws of this country.

  24. …sorry…”words/phrases”…


  25. This may be where Bork sits, but it is not where Barnett sits. There is an enormous difference between original intent (what you describe) and original meaning. Original meaning deals with what the works/phrases meant in the context of the common language in use a the time of writing. I’ve yet to see a good argument that disputes the validity of original meaning without undermining the validity of the Constitution as a just foundation for the laws of this country.

    It still makes little difference. It’s tantamount to Clinton asking you to define ‘is’. One person’s context is not neccessarily that of another. It’s still extrapolating current usage to a non-verifiable context – i.e. common langauge at the time of writing. Factoring in class differences, education, etc. of different people, the context changes as well.

    Having said that, I’d toss in my lot with whichever interpretative method is used to expand liberty, case by case, since the means of both camps are equally suspect.

  26. I think you bring up an important point, metalgrid. The problem, as it’s ever been, is the idea of the Constitution as the servant of one agenda or the other. I think it’s important for us (and for lawyers, legislators and judges) to have a *common* idea of what the Constitution means. This would require people to freely admit that they disagree with aspects of the Constitution and to advocate amendments to it. I support a rather limited view of the Constitution, but in fact implementation of this view would reverse several aspects of the current interpretation which I support ideologically or practically, such as the protection of privacy or the public funding of some science. Basically, I cannot defend these positions based on my view of the Constitution, but would support amendments to do so. Unfortunately, I find very few others who think something other than that their personal views are in complete compliance with the Constitution. This leads me to believe that most people think backwards, interpreting the Constitution in light of their personal feelings about the role of government, rather than letting the Constitution inform their view of government. And that is why the Constitution is used and abused to serve agendas, instead of acting as it should — as agreed-upon rules of the game that can be changed only through the amendment process.

  27. non-verifiable context

    The meaning of the language is verifiable based on the historical records of the time. If you can simply redefine the words of a written Constitution at will then having a written Constitution is absolutely pointless.


  28. The meaning of the language is verifiable based on the historical records of the time. If you can simply redefine the words of a written Constitution at will then having a written Constitution is absolutely pointless.

    That’s exactly the point I was making. Thank you.

  29. Oops, entered that post too soon.

    Addendum:

    Which historical records? Those provided by the liberals or the conservatives? I guess we’d need to hire historians and linguists to do the reading for us. And as long as there are people at the helm, it will always be subject to interpretation. As quaint as writing is as a communication medium, the written word loses a lot of nuance and direction – a simple glance at yesterdays Hit n Run article on the conservative witch hunt perfectly illustrates this.

    There will always be people pushing to read the word one way or another. It’s just a matter of picking which side you want to be on – and as phocion points out (I really like the way you put that phocion), amend it to mean what you really want it to mean in todays context and amend it again tomorrow if today’s context isn’t hip anymore.

  30. That’s exactly the point I was making. Thank you.

    If you believe that the Constitution is pointless (i.e. irrelevant), then what is your suggestion for providing a foundation of legitimacy to a government? Your trail logically leads to anarchy, since you infer that it isn’t possible for humans to create a written document that has any meaning beyond what any individual says it means at the time they read it. Thus, there is no way to implement any sort of law whatsoever.


  31. If you believe that the Constitution is pointless (i.e. irrelevant), then what is your suggestion for providing a foundation of legitimacy to a government? Your trail logically leads to anarchy, since you infer that it isn’t possible for humans to create a written document that has any meaning beyond what any individual says it means at the time they read it. Thus, there is no way to implement any sort of law whatsoever.

    I believe that the age of the constitution and it’s contextual scope makes it irrelevant today. If it cannot change with the times, or rather, if those in power refuse to allow it to change with the times, it just becomes a quaint little piece of paper reminiscent of the past.

  32. I believe that the age of the constitution and it’s contextual scope makes it irrelevant today. If it cannot change with the times, or rather, if those in power refuse to allow it to change with the times, it just becomes a quaint little piece of paper reminiscent of the past.

    More whining, less solutions. Paul Krugman jr?


  33. More whining, less solutions. Paul Krugman jr?

    Oh I already have my solution. I support any activist judiciary that expands liberty. As long as the means of both sides are equally suspect, the means become irrelevant. Thus, leaving the ends as the only deciding factor.

  34. Well then, it appears that your opinion and mine is being adequately debated by Cass and Randy.


  35. Well then, it appears that your opinion and mine is being adequately debated by Cass and Randy.

    They may represent you, but they do not represent my view. I disagree with both of them, and in the absence of a workable ideology (which you label as whining), I have a practical ideology to follow.

    Yet you still toss in your chips with those who will lose this battle – like every other libertarian before you. Take a principled ideologic stance without compensating for it’s lack of practicality, again, just like the libertarian party.

    For all your dictinctions between original ‘intent’ and original ‘meaning’, the possbility that the SC nominee(s) will be of the ‘meaning’ school are miniscule. Would I rather have one of them than a living constitution one? Sure. Would I rather have an ‘intent’ one rather than a living constition one? Probably not.

    Don’t get me wrong, I do admire the futility of your position and the powerlessness of mine :p

  36. Would an originalist interpretation of the 2d Amendment limit gun ownership to those available in 1787? Just curious.

  37. regarding the constitution as a sacred document:

    I was debating a coworker and said in response to his challenge, that yes, I’d like to change certain things in the US Constitution. He replied that I should move out of the country, since I obviously didn’t want to live under the system we have. I asked if he’d ever heard of amendments to the constitution. This elicited the response that the amendments are clarifications, not changes. (Maybe the Bill of Rights is a list of clarifications, but the amendment process clearly allows for changes).

    my point: this guy is a self-described conservative and we work at a university, so clearly we didn’t discriminate against him based on that. (maybe we should have discriminated based on his ability to think and argue rationally, but too late now.) this anecdote has all the statistic validity of Cathy Young’s article yesterday. my experiences with conservatives usually consist of arguments about as logical as the above.

    another conservative coworker who commonly claims he wants the constitution to be followed exactly as written, no more, no less overheard me explain what the NAMBLA organization was to a third employee. the third employee said “can’t we stop them?” I said “first amendment right to freedom of speech” (referring to their advocacy regarding changing age of consent laws). the constitution-as-written-only-guy said: “it means POLITICAL speech only”

    noone really want to follow the constitution as written, just like noone really wants to follow the bible, they all just want to pick their favorite parts.

  38. [i]Would an originalist interpretation of the 2d Amendment limit gun ownership to those available in 1787? Just curious[/i]
    No, because nothing in the Ammendment specifies that it is limited to a particular make or model of guns. I think phocian hits the nail on the head. No one disputes that there may be instances where originalist interpretation is difficult or the rare case where it may be impossible. But they dutifully attempt to do so nonetheless. This is a far cry from the “living constitution crowd”, who have adopted the convienent theory that becaue it is sometimes original meaning is sometimes diffiuclt to discern, the entire enterprise should just be abandoned and we should accept that the Constitution means whatever they want it to mean.

  39. Would an originalist interpretation of the 2d Amendment limit gun ownership to those available in 1787? Just curious.

    The definition of arms in 1787, and now, is not “weapons that have been invented”, but simply “weapons”.

  40. metalgrid frames the problem differently than I do, but the results are the same.

    What is true of our constitution is true of constitutions in general. Popular pressure will cause any obstruction to popular legislation to be ignored. People in general don’t accept the value of constitutional values even though they pay lip service to them. What people are interested in is maximizing the amount of free shit they can get at the expense of others and making the world conform to their values. As the amount and type of potential free shit expands, so will the power of government to redistribute. As segments of the culture migrate away from majoritarian norms, government’s power to regulate culture will expand. That document means exactly nothing in the face of these pressures.

    What I take from all this is that someone interested in limited government has to be focused on managing one issue at a time through the gauntlet of free lunches and naked boobie fear that is our legislative process. Minor changes can be brought about on an issue by issue basis if there is no motivated opposition.

  41. Apologies for the horrible sentence structure and repetition of the word ‘value’ up there. Not a good week …

  42. “Popular pressure will cause any obstruction to popular legislation to be ignored.”

    No. Prohibition was both enacted and retracted with proper Constitutional amendments.

    The reason Roosevelt did not attempt to go through the Constitutional amendment process was not that his programs were so popular…it was that they were so controversial.

    He didn’t have the votes to pass amendments to institute such things as a federal minimum wage, so he simply violated The Law. (And laughed about it, to boot.)

    If there is a special Hell for presidents who violate the Constitution, FDR is Satan.

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