First You Need to Persuade the President

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In a Washington Times op-ed piece, Bruce Fein urges President Bush to use the Roberts nomination as an opportunity "to persuade the public that the Supreme Court should interpret the Constitution according to its original meaning as mandated by the rule of law and separation of powers, not to achieve particular results." But Fein's subsequent examples of Republican infidelity to this principle suggest that the president is an unlikely defender of the Constitution:

The advocacy task is difficult…because process commands no impassioned and well-funded supporters. In contrast, the opponents of process obsessed with results–whether liberals or conservatives–are organized and vocal. Thus, liberals would manipulate the Commerce Clause to enact federal laws banning guns in schools or transforming state crimes against women into federal cases. Conservatives are equally eager for Congress to brandish the Clause to prohibit partial birth abortions or to thwart Oregon's Death With Dignity Act, or to act without a crumb of constitutional power to disturb a final Florida state court judgment concerning Terri Schiavo's vegetative state. Whereas liberals rejoiced at the Supreme Court's invocation of the "mysteries of the universe" and the "moral fact that one belongs to oneself and not to another or to society" to proclaim rights to an abortion and homosexual sodomy, conservatives similarly crave to wield corresponding fatuousness to promulgate an embryo's constitutional right to birth and a constitutional prohibition against suicide or assisted suicide.

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  1. If Bush used Roberts’ nomination as a carrot to keep his own ass in the clear, I’d say it’s unlikely that anything of the sort is going to happen.

  2. Whereas liberals rejoiced at the Supreme Court’s invocation of … the “moral fact that one belongs to oneself and not to another or to society” … conservatives similarly crave to wield corresponding fatuousness …

    I think the idea that “one belongs to oneself and not to another or to society” is not fatuous, but then I’m a crazed liberal.

  3. The Roberts nomination has already shown that GWB has no spine when it comes to selecting for SCOTUS.

  4. That’s a strange and kinky metaphor, Rich.

  5. I thought it worked out all right. 🙂

  6. Whereas liberals rejoiced at the Supreme Court’s invocation of … the “moral fact that one belongs to oneself and not to another or to society” … conservatives similarly crave to wield corresponding fatuousness …

    Alkali, the statement itself is not fatuous. It’s the liberals and conservatives who mouth such statements while they write laws that contradict it. I.e. “You belong to yourself unless you want to own a firearm or die with dignity or do anything else I disapprove of.”

    Unfortunately these folks don’t realize that if they give the government power sooner or later the government will use that power against them. The only way to protect your right to do what you want to do is to protect my right to do what you don’t want me to do.

  7. Larry A: your point might be a good one but it is not the point that Fein is making.

  8. its original meaning

    i’ll get a lot more interested in originalism as something more than a way to negate marbury/madison in favor of a populist dictatorship when someone comes up with the “original meaning”.

    what a fraud of a notion. fit for simpleminds, but does anyone here actually believe that the constitution had a fixed and defined meaning to all people at any time — including the convention itself? please. such absolutism is a path to idiocy.

  9. gaius, did you read Randy Barnett’s book Restoring the Lost Constitution? You’ll find in there the Original Meaning you are looking for.

  10. Another problem with Fein’s plea to the Prez is that Bush has shown zero ability “to persuade the public” of anything. I share a few of the aims Bush at least purports to seek, but he’s an utter failure at the rhetorical task of generating broad support. (To be fair, he’s pretty piss-poor at drumming up support for the things I oppose as well. To be less fair, he seems much more sincere in his desire to enact those things.)

    All that said, there is a sense in which the Constitution lacks “a fixed and defined meaning to all people at any time”, but no more than any document lacks it. Really, it’s often quite clear. Or does gaius think we didn’t *really* ban slavery of black people, and we’re just haveing a good laugh at their expense while hammering out stronger chains?

  11. Fein’s definition of “original meaning” amounts to the belief that there are not unenumerated rights, or at least, none that the Supreme Court of the United States – the last resort for those seeking to have their rights protected against the actions of the political branches – is allowed to recognize.

  12. You’ll find in there the Original Meaning you are looking for.

    no, there i’ll find the meaning that mr barnett wants to ascribe to the constitution now.

    i’m sorry, but the idea of an original meaning in any document of this type — from the magna carta to the gospel of matthew — is simply a fraud. it didn’t have an indisputable universal meaning then any more than it does now — in fact, it had far less of one then, prior to being fleshed out by two hundred years of precedent.

    it’s complete and willful simplemindedness to assume that everyone in the united states agreed on every precept of the constitution at its founding.

  13. “there i’ll find the meaning that mr barnett wants to ascribe to the constitution now.”

    Yes, exactly. Sort of like Clarence Thomas declaring that the original meaning of the 14th Amendment would never have allowed special protections for black people, or that the takings clause would never have allowed the kind of takings that were common in the 1790s.

    It’s a crock, a way of defining your own preferences as the “right” one without the bother of actually putting forth an argument.

  14. Or does gaius think we didn’t *really* ban slavery of black people, and we’re just haveing a good laugh at their expense while hammering out stronger chains?

    clearly it enumerated some ideas into law, mr shelby — but what ideas? there were many disagreements about what the document could mean even then. many of the statements within it are simply widely interpretable, and were when they were written. the founders weren’t dumb enough to think that they could agree on everything; they deliberately left room in the constitution for interpretation — and outright change — based on the experiences that were yet to come. and they had to, as a means of getting everyone to sign on.

    in short, barnett’s hypothetical “reasonable person” no more existed then than today. quick — what is the original intent of the patriot act? what would a reasonable person say? there’s a massive spectrum of opinion — just as there was then — about that question.

    i’m saying nothing new — law review excoriated the intellectual pretesnes of this bullshit completely in 1985.

    furthermore — are we really to believe that, because judicial review wasn’t enumerated, that the founders abhorred it and the supreme court should abandon it? or should we instead acknowledge that judicial review is an important part of our framework and proven valuable by experience? so much for empiricism, i guess.

    but then — we are supposed to disdain the reality-based community, aren’t we?

  15. mr. marius, there exists at any particular point in time a common understanding of the general meaning of a particular word or phrase. Although precedent builds a foundation of applied meaning, it should never fundamentally alter the general meaning as understood at the time it was written. Current Commerce Clause jurisprudence has completely redefined the word Commerce to mean something far different than it was commonly understood at the time of its writing. If you discard the concept of a common understanding, what then do you use as a guidepost to determine if a SCOTUS decision is sound?

    And joe, I’ll never understand the inkblot rationality behind those who discard the Ninth amemndment.

  16. there exists at any particular point in time a common understanding of the general meaning of a particular word or phrase.

    no — not so, mr mp, to anyone with some intellectual depth of field.

    what is the meaning of “obsequious”? “difficult”? “freedom”? you can reduce it to a webster line, and its field of acceptable usage may be approximately so delineated — but the meaning of the word itself is as variable as the sentences it is used in — more, as the events it can be used to describe. no word has any single meaning — instead, each has a field of meanings, limited in range but infinite in nuance, which is can be used to imperfectly represent.

    do not subscribe to this disease of reductivism and standardization in a primitive and barbaric battle against complexity! it is the affliction of proletarianizing societies throughout history — it is the dumbing down of our social compact.

    meaning is complex and fluid, and endlessly debatable, even in a single word — much less a document like the constitution. “original meaning” is fundamentally a fraud, as an idea, as applied to a social compact. at best, you can say that there was once a distribution of ideas among a majority of the founders that could be partially and approximately stated by the manifold and several interpretations of the document.

    and i have not once herein said that the constitution has or should evolve over time.

  17. that said, i do think that there is a broad field of meanings that the constitution did have at its writing — and which has been progressively and increasingly forgotten. you would cite the commerce clause. i might cite the art 1 sec 8 clause 11.

    but scalia is wrong when he writes

    This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected.

    that was precisely the intention of the founders, and the very reason that the court and the senate are constructed in the manner they are.

    the key argument against originalism in this sense, it seems to me, is whether or not the founders themselves would have subscribed to the notion that the meaning of the document was to be fixed. the notion is undermined by the very existence of an amendment process.

    but, more than that, the motives of originalism are so easily discredited as to reduce them to triviality. it should be clear from scalia’s statement that what he really wishes is for — indeed, what the goal of originalism is — is a form of populist proletarian dictatorship in which the court has no power to intervene to turn back congress and the president. after all, if every clause has a fixed original meaning, there is little or no need for judicial review — congress can determine for itself what is and is not constitutional. and certainly it is not within the purview of the court to stop the other two branches (now unfortunately conjoined) from indulging in their legislative fantasies. in the end, originalism removes the purpose of having a third branch of government in the first place.

  18. at best, you can say that there was once a distribution of ideas among a majority of the founders that could be partially and approximately stated by the manifold and several interpretations of the document.

    As far as I’m concerned, this is gaiusspeak for my phrase “common understanding”. Determining what the common understanding was is clearly not an issue of simply looking up a word in Webster’s. However, a just determination of this understanding must be founded on the materials, literature, statements, etc. that existed at or before the time of the writing of the words/phrases that are to be interpreted. Because Common Understanding may shift over time due to the fluidity of language, it is important to thus restrict oneself to the usage of language at the time a contract was written in order to derive a justifiable interpretation. The job of SCOTUS is thus to consistently apply that original common understanding to discrete events.

  19. arriving at a modern understanding of a then-“common understading” presumes near-complete transparency into the minds of all the founders as to what the words meant, mr mp — an impossible standard from a distance of two centuries, and one long ago convincingly rejected in law review. you don’t have the raw materials to enact such a scheme.

    it further presumes that there was no horse-trading — that the founders came to a consensus on every issue. they didn’t. some voted for ideas they disagreed with in order to get votes for their pet words. and many worked by means of compromise to obfuscate and dilute phrasings specifically so as to make them widely interpretable — so that, upon reaching power, they might change practice within the form of the constitution without changing the wording.

    i say again — this very notion is a fraud. there is no such thing as ‘original meaning’. there were arguable ‘a set of possible original meanings’ — but that is all.

  20. The very existence of an amendment process cuts rather against your argument, gaius. It implies that one cannot just read anything into the Constitution — if you want to change its meaning you have to actually, you know, change the text. If there were no amendment process, then we’d need to be much more flexible in how we read it.

  21. gaius, if you haven’t actually read Barnett’s book, I suggest you do. He argues against your points far better than I can. FWIW, I find Scalia’s Originalism to be tainted by his personal perferences for the ideal social order. I don’t think much of his dissent in Romer v. Evans. What appears to really get your goat is Originalists who inkblot the Ninth. And what I don’t see in your statements is an interpretive standard that you feel should be used. There must exist some sort of evaluative criteria to say that an application of law, as based on the written text supporting the law, is just.

    BTW…it’s unfair of me to suggest that you need to come up with some sort of detailed invocation of your Constitutional doctrine in a thread that’s been long forgotton. Maybe you should blog about it sometime if you haven’t already.

  22. if you haven’t actually read Barnett’s book,

    i read enough to toss it in disgust (which admittedly was not a lot). i thought it a rather transparent attempt to reduce a government of separated powers to a plebiscitarian free-for-all.

    And what I don’t see in your statements is an interpretive standard that you feel should be used. There must exist some sort of evaluative criteria to say that an application of law, as based on the written text supporting the law, is just.

    just as there was no fixed meaning then, mr mp, there is no fixed exegesis now — and if there ever is, i suggest to switch countries, because this one will have obviously calcified into a moribund and dessicated skeleton of a society. that which refuses to change must die.

    how we respond to the challenge presented us determines our fate. i have a lot of problems with the way law has been perverted in this society — first becoming a secular management template instead of a moral code, then abandoning all social and historical context to emphasize technique in avoiding our looming decline — but to pretend that the perversion means that going back into the womb is even possible (not to say desirable!) is just ridiculous prima facie.

    should blog about it

    i actually have — here and particularly here.

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