A question for our nonoriginalist readers…

Do you really want President Trump to pick a nonoriginalist Justice?

|The Volokh Conspiracy |

Here's a question for our nonoriginalist readers–and it's not intended to be a trick question. If President Trump won't choose the type of justice you wish he would–defined however you like–would you prefer he replaced Justice Kennedy with:

  • (a) A self-described living constitutionalist/multiple modalities/common-law-constitutionalist/moral-readings–pick your fave–justice who shares President Trump's political and moral views or
  • (b) A self-described originalist?

Or, to put the question another way: Which type of Justice would you most fear? And, if it is (a), then doesn't that tell you something about the possible merits of (b)?

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  1. “Trick question – Trump is Hitler and shouldn’t be allowed to appoint anyone.”

    1. I think you’ve really understated things here. Trump is clearly Hitler^3.

      1. Hitler to the power of Hitler.

      2. What’s funny is that the reasons why Trump isn’t Hitler are also why he’s president. Like, if Trump weren’t such an incompetent blowhard, he would never have set his eyes on the presidency. But it is exactly his incompetence that is protecting us from his worst instincts. If Trump had Hitler’s savvy we would really be fucked.

        1. Yea we all remember how savvy Hitler was in attacking his ally Russia to open up a second front instead of taking the silly option of only fighting on the Western Front and defeating the Allies there. Not to mention how savvy Hitler was in ignoring some of the best military minds in the world and over ridding their advice.

          1. Some of Hitler’s military judgements were savvy. Some not so much. Up until Poland he had an unbroken record of success in predicting, against the desperate warnings of his High Command, that no one would actually do anything to stop his aggressions. He correctly went with the more modern junior Generals, against the more senior old school, in conclusing that he could beat the Western Allies swiftly and decisively, using blitzkrieg. And he made the correct decision in the winter of 1941-42, against the advice of his High Command, to “stand your ground at all costs” rather than retreat. So although he was an amateur, he clearly had some talent for military matters. But he also made some crashing mistakes.

            But it’s not obvious that invading the Soviet Union was one of them. Remember the war in the west was a prelude, a little pre-war to deal with that flank. And it did remain dealt with for all serious purposes unti 1944. His real objective was Russia all along. There’s no good reason to believe he’d have done better against Russia if he’d delayed until 1942.

            His truly catastrophic mistake was declaring war on the US, when it was far from likely that the US was going to declare war on him.

  2. Here’s the thing: They think originalists are just conservative living-constitutionalists who are lying. They really do think that: Originalism isn’t wrong, it’s impossible.

    So, from their perspective, it’s between, (a), an honest living constitutionalist who shares Trump’s values, or,

    (b) A lying living constitutionalist who shares Trump’s values.

    So, A is perhaps marginally preferable.

    Also, at the first opportunity they’re going to pack the Court anyway, so it’s just a short term problem.

    1. There has a been a run of “originalists” who were willing to throw originalism under the bus to get to the “right” outcome.
      (In much the same way that the old Conservative preference of non “Activist Judges” who wouldn’t “legislate from the bench” became the new Conservative preference of activist judges who legislate from the bench in the way they like.)

      Originalism is a valid starting point for interpreting the Constitution. It isn’t, however, also the ending point.

      1. There have been, yes. Nobody claims being an originalists makes a judge infallible, or guarantees that they’ll be honest.

        But not having principles is a lousy solution to the problem of judges who don’t always live up to their principles.

        1. “There have been, yes”
          this in response to my explanation of why “They think originalists are just conservative living-constitutionalists who are lying.”

          So, now that we’ve concluded together that there is a good reason why we might doubt anyone’s claim to be “originalist”, why would “originalist” or “not originalist” be a relative topic during confirmation?

          “But not having principles is a lousy solution to the problem of judges who don’t always live up to their principles.”
          And having different principles is not at all the same as not having principles.

          Let us assume, for a moment, that there are two adjectives… conservative with a lower-case c, and Conservative with an upper-case C. The difference is that the lower-case conservative wants things to remain largely as they are today, with only incremental change. The upper-case Conservative, on the other hand, wants wholesale changes, on a wide range of political topics.

          With those definitions, I want a judge who is conservative, and I do not want a judge who is Conservative.

          1. Isn’t there a difference between “desiring wholesale changes to precedent to re-align SCOTUS with an Originalist version of the Constitution” vs. “wholesale changes”?

            Barnett wants wholesale changes. But he grounds his argument solidly on both Originalism and the legitimacy of law.

            1. Isn’t there a difference between “desiring wholesale changes” and “desiring wholesale changes”?

              No.

              It’s like explaining to someone wearing a MAGA hat that America is ALREADY great.
              It’s like the idea is foreign. And you know how those guys feel about ANYTHING that is foreign.

          2. I have a simpler explanation: “Virtue is impossible!” is the age old cry of those who don’t want to be virtuous. Ask any adulterer: Everybody cheats on their spouses, right?

            That’s all this is: Living constitutionalism is just a formalized version of an old vice of judges: Ruling according to your own preferences instead of according to the law. Like any vice, the defense for it is virtue is impossible, everybody is sinning the same way.

            1. It’s why I’ve given up on finding mysteriously high value in this or that interpretation method and just devised a new rule: judicial activism is ok when it discovers new, unanticipated freedoms for The People, but not ok when it discovers new, unanticipated powers for government.

              Both are consistent with the guiding principles behind constitutional design: limiting government from interfering with the actions of The People except where The People expressly grant government a power.

            2. Virtue isn’t impossible, but having virtue and being Trump’s pick for Supreme Court justice is.

          3. “And having different principles is not at all the same as not having principles.”

            There is no theory of interpreting the Constitution besides originalism.

            1. And yet people who call themselves “originalists” want you to think that their way of interpreting the Constitution is better.

    2. living-constitutionalists who are lying

      That seemed to be at the core of Dorf’s argument against Barnett in their debate. Dorf used the phrase “bait and switch”, but he was really just saying that Barnett was too hopelessly optimistic and that everyone is really just going with their FEELZ.

    3. They think originalists are just conservative living-constitutionalists who are lying.

      Or perhaps the Constitution’s text is vague enough, that orignalism permits one to reach his desired political result anyway.

      1. If one’s a Scalia. Perhaps not if one is a Thomas

        1. Thomas can do it too. Gonzales v. Raich, for instance.

      2. Why would the vagueness of the Constitution’s text result in desired political results? There’s another way, espoused by Wilkinson among others. If the text or understanding of original intent runs out, you don’t adjudicate.

        1. Wait, you’re proposing that the judge just get up and walk out of the room?

          1. Of course not. I’m suggesting the judge do what every judge does in the entire country when there isn’t sufficient evidence to support the claim. They deny the requested relief. The plaintiff has the burden to assert a right or remedy under the Constitution, do they not?

            1. I don’t know. Where in the Constitution does it say that the plaintiff has the burden to assert a right or remedy under the Constitution?

    4. If that’s the case, we should just abolish the court, because no judge like that is fit to made decisions that affect my life.

    5. Also, at the first opportunity they’re going to pack the Court anyway, so it’s just a short term problem.

      You mean, ‘enlarge the Court in a lawful manner, as has occurred a number of times in American history and would recognize that the population has increased substantially?’

      If you don’t want a Court that favors tolerance, progress, science, education, and inclusivity, vote for people who favor right-wing positions, persuade your fellow citizens that your positions are sound — and don’t lose elections.

      1. Aha. Like FDR’s unobjectionable attempt to enlarge the court legally.
        Perhaps Republicans will be lucky enough to keep winning elections, so that tolerance includes tolerance of beliefs at odds with left fascism, so that progress belongs to others than those self-declared prophets of the right side of history, so that science isn’t suppressed in service of political notions of ‘gender’ and poisonous GMO crops, so that education actually teaches the useful arts of reading, writing and arithmetic instead of history as a series of white oppressions of everyone else, and so that inclusivity includes those with such wild notions as dedication to God and country, opponents of abortion, and those crazies who question whether rapists run wild on college campuses.
        Now that would be a court to reckon with.

        1. FDR was allowed to make the Court bigger, Jefferson was allowed to sack the midnight judges, there are lots of unfortunate things that are not unconstitutional.

        2. “Like FDR’s unobjectionable attempt to enlarge the court legally.”

          Yeah, its not so easy even with the huge majorities FDR had.

          1. Do you yahoos object to every change in the Supreme Court’s composition effected in compliance with the Constitution, or solely one proposed by a Democrat (or anyone other than a movement conservative Republican) during a particular period?

            Thank you.

      2. You mean, ‘enlarge the Court in a lawful manner, as has occurred a number of times in American history and would recognize that the population has increased substantially?’

        Are progressives really that stupid!? Harry Reid (mostly) killed the filibuster. Trump and McConnell finished it off and use the new rules to confirm Supreme Court justices without any support from Democrats. And now we have progressives arguing that there’s nothing magic about nine justices and maybe we should enlarge the court to match population growth. Has it really not occurred to you that — in that case — there’s nothing to stop Trump from saying, “Gee, thanks, guys! Great idea!” and going ahead and nominating another half dozen justices right now?

        If I were a Machiavellian adviser to Trump, I’d push for a constitutional amendment to fix the Supreme Court size at 9. If Democrats oppose, then I’d say, OK, Democrats must be fine with a bigger court. They say so, and they won’t support limiting it to 9, so….why wait? Let’s get on with that overdue court enlargement project — It’s gonna be huuuuge!

    6. Originalism essentially is a lie. You might be able to stitch together a theory around originalist principles, but it will never deliver on its essential, validating promise: an objective and consistent standard for interpreting statutes and constitutional provisions.

      Randy’s smarmy, self-satisfied query amounts to: Well, liberals, which would you rather have: an asshole, or a unicorn?

      1. This is very silly. Originalism is a reasonably well defined principle establishing a set of rules for interpretation. As with any set of rules there will be problems even for honest people trying to apply them. And any set of rules is vulnerable to cheaters.

        But the object of the exercise is not to design a perfect system that can never fail. That would only work if the system was to be operated by angels rather than men. The object of the exercse is to design a system that works reasonably well with flawed operators. That makes it easy to detect cheaters and helps honest men keep to the rails.

        It’s obvious that relying on that which is not written down – intent, purpose, policy etc – cannot provide guard rails for the honest or chains for the dishonest. Whereas relying on that which is written down provides both of those things. Everyone can see the words. No one can see the intents or the purposes.

        If you don’t like textualism (or its gloss, originalism) propose something better that has a chance of working tolerably in the real world. Where we can all see the moving parts.

  3. I would fear a Sotomayer / Stevens / Ginsburg

    Stevens since the constitution was far too malable – Kelo, etc

    1. Stevens and Ginsburg apply constitutional reasoning to their constitutional decisions. The other one, though, …

  4. I believe that set A is a null set.

    President Trump doesn’t have any political or moral views.

    1. You know, I’d actually be okay with Trump just not appointing anyone and letting the court shrink to eight seats. It’d be really weird, sure, but I’d be okay with it.

    2. Or just ones you don’t agree with. A problem endemic to both sides.

      1. He has a political philosophy: “Whatever is best for Trump, and glorifies him, is the best policy.”

        He has a view of morality: “Trump can do and say whatever he wants.”

        I don’t agree with those. Do you?

        1. Compared to your political and moral philosophy of saying the stupidest thing you can think of that supports your team?

          1. Sounds bad on both sides. The tie-breaker for me is to go against the bigots. Sorry, JesseAz.

            1. I’d say there is ample evidence for my comment.

              Jesse is just a Trump cultist, like too many here.

              1. Were I a backward-oriented, diffusely intolerant, half-educated, economically inadequate, disaffected American, I might be a Trump cultist, too.

                1. You are living proof that the set of backward-oriented, intolerant, half-educated, economically inadequate, disaffected American Trump haters isn’t a null set.

                  1. How many black votes would I need to suppress to become your friend, Hey Skipper?

      2. Me: “President Trump doesn’t have any political or moral views.”
        You: “Or just ones you don’t agree with. A problem endemic to both sides”

        No, I meant what I ACTUALLY said.
        He doesn’t have any political views. Whatever the person who talked to him most recently said is likely to resurface out of the President.
        As fir moral views, those seem equally “flexible”.

        Do I wish someone else were President? In an absolute sense? Yes. As a pragmatist, however, I think the utter ineffectiveness of the Trump regime is preferable to a Republican who actually understands the nature of Washington and the Presidency, and can get things done that can’t be undone by President Nextguy.

        1. How many of Trump’s speeches have you actually watched or read? Be honest. He tends to sway initially but ends up in the end with a more tempered but consistent view. But he’s also willing to compromise on certain aspects of his views for points he doesn’t feel strongly about, ie immigration comrpromise. He’s way more consistent than Hillary and her “what’s the latest polling say” views.

          1. “He tends to sway initially but ends up in the end with a more tempered but consistent view.”

            That’s a pretty positive spin on “He keeps going back to whatever the people in front of him said they liked.”

            “he’s also willing to compromise on certain aspects of his views for points he doesn’t feel strongly about, ie immigration comrpromise.”

            That’s swell? Who’s he compromising with, seeing as there’s no deal on immigration, and they weren’t even PRETENDING to be consulting with anyone who wasn’t a Republican?

            “He’s way more consistent than Hillary and her “what’s the latest polling say” views.”
            The difference is, being consistent in your views (or not) doesn’t matter for private citizens. If he went back to being a private citizen, too, I could start not giving a shit what HIS views are, either.

          2. Jesus, just pick an issue. Tax cuts? Health care reform? Look at what he said during the campaign on some of these issues. He’s been all over the map.

            Look, just because he’s surrounded himself with clever sycophants who will spin everything he does as a “win” and part of a coherent agenda doesn’t make it so. He wants to win a trade war with China! Grr, tariffs! Well, except for ZTE. And Foxconn. But more tariffs! Unless he changes his mind again.

  5. I would fear a Sotomayer / Stevens / Ginsburg

    Stevens since the constitution was far too malable – Kelo, etc
    Sotomayer since the constitution seems to require discrimination in favor of her favored class – Shuttee, Ricci,
    Ginsburg since preferred policy seems to take priority – Elcino motor, ledbetter, ACA concurence, Janus / Filpa compelled speech

  6. Mostly this tells me something about the importance of not letting a single person or party pick Supreme Court justices.

    I couldn’t be happier than if the Democrats took the Garland/Gorsuch precedent and turned it into an unwritten rule that no President can nominate someone without the approval of both sides of the aisle in the Senate. (Absent a situation where the President’s party has more than 60 seats.) Put McConnell, Schumer, and White House counsel in a room and have them agree on a shortlist of judges that are acceptable to all three, to fill the next couple of vacancies.

    1. It’s hard to create unwritten rules when you’re in the minority though.

        1. It’s hard to filibuster when you’re the minority party who destroyed it.

          1. Shhhh. He doesn’t realize Schumer or blew the filibuster wad on gorsuch.

    2. How do you enforce such a rule?

      End life tenure and enact 18 year terms. Reduce the stakes and you start to calm all the angst.

      1. Filibuster.

        I’m on board with ending life tenure, bearing in mind that that would require a constitutional amendment.

        1. “Filibuster”

          Already dead and buried.

          1. Let him keep his innocence. He’s a wishful thinker.

            1. Much like those who figure nine is written in stone?

    3. “I couldn’t be happier than if the Democrats took the Garland/Gorsuch precedent and turned it into an unwritten rule that no President can nominate someone without the approval of both sides of the aisle in the Senate. ”

      With the pseudo filibuster dead for all judicial nominees all the way up to SCOTUS, there is no way to enforce such a rule.

      The Democrats killed it for circuit and district court nominees and the Republicans finished it off when the Democrats tried to block Gorsuch’s nomination.

      Which ever side has a simple majority in the Senate, now has full control of the confirmation process. Trump is screwed in terms of being able to get any judicial nominees confirmed if the Democrats run the board and achieve a Senate majority in November. However, if the Democrats fail to get a majority (and there are only 8 Republican seats in play in November) they are powerless to stop any Trump nominees.

      1. “With the pseudo filibuster dead for all judicial nominees all the way up to SCOTUS, there is no way to enforce such a rule.”

        Sure there is. When you have a party that treats party unity as the most important thing, they will have trouble finding consensus when they actually have to manage the country. And once the party unity slips, they lose the ability to actually run the government on their own. At which point, we’ll see whether or not “deal-maker-in-chief” Trump actually has any ability at all to make deals, despite almost 18 months of showing no such ability.

        A lot of rank-and-file Republicans speak approvingly of letting the federal government crash-and-burn. We’ll see if their opinions change when the collapsing government starts to cost them money. (Note that I’m not actually predicting that it will… a lot of them supported things that were directly contrary to their economic well-being… because the talk-radio hosts told them it was the Democrats’ fault. But surely they’ll EVENTUALLY catch on to the lying, right?

      2. With the pseudo filibuster dead for all judicial nominees all the way up to SCOTUS, there is no way to enforce such a rule. The Democrats killed it for circuit and district court nominees and the Republicans finished it off when the Democrats tried to block Gorsuch’s nomination.

        This misstates the murder victim. The critically important murder was the murder of the rules themselves. The Democrats killed the rule for changing the rules. After that everything else is just secondary details. Once the rule for changing rules is dead, there are no rules.

        Trying to renegotiate a new rule for filibusters is futile. Because the rule for changing rules is dead. Everyone knows that a new filibuster rule can last only so long as it is convenient to the majority.

        So, currently, the filibuster still exists for legislation. But since the rule for changing rules is dead, everyone knows that the filibuster for legislation is also dead. It’s just a skin that’s beng worn for the time being, until it becomes convenient to discard it.

        1. “This misstates the murder victim. The critically important murder was the murder of the rules themselves. The Democrats killed the rule for changing the rules.”

          Actually, the democrats didn’t murder that rule. There is a pre-Civil War SCOTUS decision stating that the rule is legally meaningless and that either branch of Congress can change their internal rules by simple majority any time they want to even if they enact rules claiming otherwise.

          1. I’m not sure you’re understanding Lee correctly. Yes, the internal rules of a house of Congress has been largely non-justiciable since the founding of the republic, as affirmed in that SCOTUS decision.
            However, before Harry Reid knifed the filibuster, there was a very strong force of tradition, which was effectively used by then Democratic minority along with their helpers in the media to keep the filibuster alive and active to thwart Bush’s nominations to the courts. Yes, the “rule” was psychological, not Constitutional, but it existed.

            Once changed for the convenience of Reid and Obama, however, any such psychological constraint no longer held, or is likely to ever hold again.

            1. ” there was a very strong force of tradition, which was effectively used by then Democratic minority along with their helpers in the media to keep the filibuster alive and active to thwart Bush’s nominations to the courts.”

              I refuse to accept calling such a tradition a rule when it is legally unenforceable.

              1. rule (n)
                1 One of a set of explicit or understood regulations or principles governing conduct or procedure within a particular area of activity.

            2. I agree that the “rules” were supported by deference, tradition, consensus etc, but that as a matter of law a simple Senate majority can do what it likes. But they actually were called the Senate rules, and they included a rule on how to change the Senate rules. And there are still Senate rules, and the Senate still follows them – eg even after the death of the filibuster, the minority can still spin out debate and waste a lot of time. So there is still a show of respect to the rules.

              My point was simply that if, in practice, both sides deferred to the rules, in particular and most importantly the rule for changing rules, the system could work as if the rules were supported by something more solid than mutual trust. But once you break the rule for changing rules the whole web of deference, trust, consensus is shredded. There’s nothing left holding up the rules except majority convenience.

      3. With the pseudo filibuster dead for all judicial nominees all the way up to SCOTUS, there is no way to enforce such a rule.

        Not that Senate Democrats are clever enough to do this, but sure there is. The filibuster threshold just happened to be relevant because its 60-vote threshold was higher than typical Senate representation of either party. Absence of the filibuster just means that the threshold is lower, so now you’re no longer looking at holding a party line, but having to pick up a couple dissenters from the other side of the aisle.

        Claire. Lisa. Jeff. John. Who knows, maybe even Rand. Pick a target and make a deal. McConnell can block compromise bills he doesn’t like, but he can’t do anything about a Senator that sees value in breaking ranks on a confirmation vote. Especially after the Senate has rubber-stamped so many total fuck-ups. Now might not be a bad time to show that you’re not a cowardly dittohead co-signing 100% onto an incompetent presidency.

    4. “Put McConnell, Schumer, and White House counsel in a room and have them agree on a shortlist of judges that are acceptable to all three, to fill the next couple of vacancies.”

      You could ask, but without the President agreeing, it’d be sort’a pointless, and trying to require it probably unconstitutional.

      1. There is nothing unconstitutional about the Senate telling the President that they will approve the nomination of person X and no one else.

        1. No, but actions that would result in a wholesale turnover of seats held by the party that would have to undertake them are effectively unconstitutional.

          A minority party might get away with a deal like that, on the basis that it was the best that they could get. The Republicans would be slaughtered by their voters if they tried something like that.

          Key point to remember: Trump is more popular with Republicans than Congress is.

          1. Then I guess the master orator Trump would have to go to his voters with the Luther defence: “Hier steh ich, ich kann nicht anders!”

        2. What could possibly motivate the Senate as a whole to do such a strange thing? You do realize that many Senators either really believe what they preach or fear their electorate enough to pretend to do so.

          1. What would motivate them is the recognition that no majority lasts forever.

      2. “Put McConnell, Schumer, and White House counsel in a room and have them agree on a shortlist of judges that are acceptable to all three, to fill the next couple of vacancies.”

        I predict the Dem caucus will go for this right now.

        And I predict the GOP caucus will go for this. As soon as there’s :

        (a) a vacancy
        (b) a D President and
        (c) a D majority in the Senate

  7. Why would you ever think that Trump would appoint someone who “shares his views”? He has consistently used appointments to reward sycophants and donors and appease his base. How close any given appointee is to his own views has, so far, been irrelevant.

    So sure, I’ll take (A). As difficult as they are to discern, what little we can see of his “real” views appear pretty mild. An “originalist”, on the other hand, is just another appeasement for his base

    1. “He has consistently used appointments to reward sycophants and donors and appease his base.”

      Yes he has.

      Just like the 44 others before him.

      1. Robert Gates says hi!

      2. Just like the 44 others before him.

        At least with the half dozen or so Presidents – those that were appointed were competent.

        1. Can’t tell if your ignorantly naive or just stupid.

  8. It doesn’t really matter.

    An “originalist” is someone who reaches their preferred policy result via psuedo-historical examination. It might be a little simpler than other arguments to read, but it won’t ultimately affect the outcome.

    The only part that matters is the “who shares President Trump’s political and moral views” part. Originalist or not, that’s what will matter.

    Personally, I’d prefer someone in the Kennedy mold. Someone with subtle and non-dogmatic political and moral views.

    1. See what I mean? Non-originalists are committed to denying that there ARE any real originalists. So they can’t admit that the choice Randy proposes is real.

      1. Give me an example of a “real originalist”. Give me examples of people who engage in “originalism” that has regularly resulted in outcomes that are inconsistent with their policy preferences.

        1. I doubt Scalia liked abortion, yet he said states could legalize it.

          1. When was the question of whether a state could legalize abortion ever brought before Scalia?

            1. He could have upheld anti-abortion laws based on the “constitutional right to life” if he were so inclined. It was the position taken by Texas in Roe, after all.

              1. I’m also curious about Scalia saying there’s a right to burn the American flag. Is this a “policy preference” of his?

                “I hate the result [in Texas v. Johnson],” Scalia…said at a 2014 question-and-answer session sponsored by Brooklyn Law School.

                “”I would send that guy to jail so fast if I were king,” he added, then referring to Gregory Lee Johnson as a “bearded weirdo.””

                https://read.bi/2tFcgvv

                1. I also can’t imagine he liked the idea of lessening the sentence for a career criminal in Smith v. United States

                  1. Sure, but that was also a gun case and the pull of the gun always held special allure for Scalia.

              2. Scalia wasn’t on the Court for Roe. He was serving in the Nixon administration at that time. Later, when he was on the Court, he did say in dissent that a state could legalize abortion.

                But, honestly, if he’d had 5 votes, who’s to say what he would have done?

                1. And I personally presume that originalists are against child abuse and neglectful social services staff who let abuse happen, so I personally have trouble thinking that DeShaney v. Winnebago County expressed the policy preferences of Scalia and Rehnquist when they joined the decision.

                  1. Sure it did. They might not have liked child abuse, but they hated viable causes of action against government actors even more. Hence their expansion of qualified immunity and near constant attack on 14th amendment remedies in general.

                    1. You asked about *outcomes* inconsistent with their policy preferences.

                      I listed several – legal abortion, legalized flag-burning, no federal relief for an abused child.

                      I can add challenging an improper sentence in a criminal case in Apprendi v. NJ.

                    2. Sometimes, such as in Winnebago, two competing policy preferences collide. In Winnebago, as in many cases, Scalia sided with protecting state actors from suit over victims of government action. That was a pretty standard thing during his term, as shown by his expansion of that great originalist theory, qualified immunity. Comes straight from the text, ya see.

                      Similarly, in Raich, he had to choose between his beloved federalism and being hard on drugs, and in the end he went with being hard on drugs.

                      And then there’s Bush v. Gore, where the so-called Originalist wing showed their true colors. It’s all politics, even when it is dressed up as poorly researched/written history.

                2. “But, honestly, if he’d had 5 votes, who’s to say what he would have done?”

                  So this example doesn’t count because he probably didn’t mean it.

          2. What does “states could legalize it” even mean? Is there any doubt that Scalia would have upheld a federal late term abortion law?

            Is Scalia your “real originalist”?

        2. Your assumption, with nothing behind it, is that outcomes align with pre-existing policy preferences and so written judicial decisions are simply post hoc rationalizations using the text of the constitution as pretext. If true, that would argue for simply getting rid of the court and just letting Congress vote on any disputes.

          1. Nothing behind it, huh? You think it’s just random chance that “originalists” always seem to arrive at the outcome they desire?

            What SCOTUS’s true role in this country has become is a non-democratic check on the tyranny of the majority . . . but the check is limited because it is ultimately an expression of past majorities. It is the cold dead hand of majorities past that either endorses or limits the present majority’s tyranny.

          2. Most judicial decisions spend little time even referencing the text of the Constitution. There are lots of advantages to using courts for certain things rather than using Congress. But the fact that judges tend to analyze the constitutionality of their decisions more than members of Congress isn’t one of them.

            (Congress is supposed to follow the Constitution too, you know.)

      2. There aren’t, so it isn’t.

  9. Barnett’s premise?or at least the premise he wants folks to adopt while answering his question?is that originalism somehow constrains judicial decision making, and that makes it a better option?at least better than unconstrained decision making. That won’t make any sense until judges are on their mettle to decide among originalist options that the judges have not created for themselves.

    I have asked time and again on this blog why courts couldn’t make originalist fact finding a task for academic historians, and then take the results as expert testimony. That would provide real constraint. None of the lawyers commenting here?liberal, conservative, or libertarian?has responded in any way but negatively. I conclude the lawyers don’t want restraint, and won’t stand for it. That makes Barnett’s question kind of pointless. Or maybe, following Brett Bellmore, I deny the choice Randy proposes is real.

    1. Oops. Not “restraint,” “constraint.”

    2. One response might be a preliminary question: Do Howard Zinn and Michael Bellesiles count as “historians”?

    3. “I have asked time and again on this blog why courts couldn’t make originalist fact finding a task for academic historians, and then take the results as expert testimony.”

      You want an answer? Academic historians are highly partisan. Look at the Bellesiles scandal: His book was a fraudulent load of crap, you couldn’t get three pages into it without a WTF moment, if you were even casually acquainted with the relevant historical literature.

      And yet, it got the profession’s highest honor, the Bancroft award, AFTER people were pointing this out. Because academic historians liked Bellesiles’ politics.

      The suggestion is a non-starter.

      1. . . . as opposed to judges and law clerks, who are totally non-partisan, right?

        1. They’re at least not all of the same partisanship.

          1. So the reason judges and law clerks should be conducting historical analyses rather than historians is because you believe that more judges are in agreement with your policy preferences than historians?

            Now that’s a ringing endorsement of the virtues of originalism!

            1. No, because I know that virtually all academic historians are hard leftists.

              The takeover of academia by the left is no secret. Of course left-wingers want legal decisions to be delegated to academics: That’s the same as delegating the decisions to the left itself.

              And academic history is the worst field by far, 33.5 Democrats for each Republican. No wonder Arming America got the Bancroft award even after it had been exposed as a fraud.

              1. The takeover of academia by the left is no secret.

                Teaching nonsense, disdaining science, flattering superstition, and promoting ignorance and intolerance have consequences. One of those consequences is that strong education is incongruent with conservatism and the Republican Party.

                Our strongest schools are operated in the liberal-libertarian mainstream. There is a reason most schools operated by conservatives are censorship-shackled, third-tier (or worse) goober factories with sketchy accreditation.

                The market speaks, vividly. Conservatives whine.

                1. “Teaching nonsense, disdaining science, flattering superstition, and promoting ignorance and intolerance have consequences.”

                  That they do?how else would departments of sociology have come into being?

              2. So you admit then that originalism is just window dressing for a partisan decision? Because otherwise, if originalism was something more than that, why would it matter what the policy preferences of the originalist?

                You like originalism because you identify it as aligning with your policy preferences. If it did not align with your policy preferences, such as if you actually had qualified historians doing historical research, you would not like it.

                So, your complaint about non-originalists above applies to you! You just think that the originalists will be on your side, so you are okay with it.

              3. Brett, did you even read your own link? It says this:

                The report found 3,623 of the 7,243 professors registered as Democrats
                and only 314 registered as Republicans. The ratio of registered Democrats to Republicans has increased in the past decade and is highest among young professors.

                First, registering as a Democrat makes you a “hard leftist?” That’s pretty lame. But also, in what universe is 50% equivalent to “virtually all?” Note also, I don’t think “tenure track,” is in any way regarded, at least in the better precincts of the historical profession, as equivalent to “professor.” An historical expert used as an expert witness ought to be drawn from the very upper reaches of the profession, or the lawyer is incompetent.

                If your remark is representative of Republican thinking, why would someone trained to respect facts, and eschew motivated reasoning?as academic historians are trained?ever prefer the style of thought you exampled to their academic training?

              4. Also Brett, I’ve been biting my tongue on this for a while, because of the caterwauling I know it will provoke among the historically ignorant fraction among commenters who like guns. But this has to be said.

                Arming America was properly debunked for shoddy scholarship. Bellesiles was rightly booted from the historical profession, for dishonesty and incompetence (which goes a long way to contradict your use of him to discredit the profession, but leave that aside). What was not accomplished?although almost every pro-gun commenter here thinks it was?was disproof of Bellesile’s thesis that America’s gun culture was largely a creation of post-founding-era events.

                That question remains open. We know Bellesiles didn’t prove it. We know his critics said that because they had debunked Bellesiles, they had proved the contrary. But reading critiques of Bellesiles from the debunkers will not convince anyone who knows how to reason historically that they accomplished what they claim. They didn’t even begin to do that.

                1. And who did the debunking of Arming America? It wasn’t the profession policing itself, the debunking came from outside of the coterie of tenured history professors.

                  1. mad_kalak, that is a point worth taking seriously. Here is an example to sharpen your point considerably. Edmund Morgan?one of the best American historians who ever lived, and a specialist in the periods most relevant to Bellesile’s argument?fell for the deception and praised the book. What can that mean?

                    What it can’t mean is that Morgan didn’t know his stuff, or was speaking ideologically. You can read his entire output without finding notable ideology?other than commitment to the historical record, to truth, and to not indulging motivated reasoning?or to indulging practically any reasoning at all. Morgan not only doesn’t try to push an argument too far. Morgan doesn’t argue. He tells you what happened, better than anyone, because he knows what happened better than anyone. When he’s done, you conclude what you want, on the basis of stuff you didn’t know before.

                    So how come Morgan got fooled? Well, first, he didn’t examine Bellesile’s methods. For better or worse, that’s not how historians judge peers, until there is controversy. Mostly, they don’t try to redo each other’s research. But probably more important, I think Morgan’s own historical insight agreed with Bellesile’s thesis. That could mean Bellesiles was stupid, dishonest, and incompetent, but right.

                    1. Thanks. I think it speaks to a broader issue, in that society needs experts, but experts tend to get locked into a certain ways of thinking due to the matriculation process of them becoming experts. We need intelligent entrepreneurs/disrupters from other fields to see things in a different way.

                    2. Problem there is “intelligent.” I might prefer “wise.”

                      Intelligence these days seems to leave a lot of room for motivated reasoning, with all its perils. The Bellesiles case is an example. His critics were, first and foremost, motivated by wanting to set right (as they saw it) a challenge to a narrative they believed in and treasured. So they went looking for flaws and hit the jackpot. From that discovery of flaws, they, and who knows how many of their followers, concluded that their motivation had been vindicated, and their preferred narrative proved valid.

                      You can’t say they weren’t intelligent. I do think they aren’t wise. I’m tempted to put it yet more generally, and suggest the internet is a better ally of intelligence than of wisdom. I wish I could figure out what except wisdom can stay the hand of a would-be disrupter before he sets out to revolutionize something that’s working well, and that won’t be replaced, and delivers a net loss in the process.

                2. So, moving on from “fake but accurate”, we’ve now arrived at “fraudulent but accurate”?

                  Look, the reason Bellesiles had to falsify so much is because the evidence didn’t support his thesis.

                  1. Brett Bellmore, I don’t think so. You seem to be struggling under the impression that evidence which is insufficient to support a thesis is therefore sufficient to support the negation of the thesis. On the Bellesiles case, you are in plentiful company, but it isn’t so. There is all kinds of evidence, for instance, which doesn’t support the theory of gravitation. Not because the evidence is to the contrary, but because it is irrelevant.

                    I think Bellesiles read some history, got a gut feeling about a thesis he thought might hold water, then turned to a data set he should have left alone?because it had little or nothing to tell about the rise of a generalized gun culture in America. After he did that, and it wasn’t working out, his incompetence and dishonesty came to the fore, as he tried to save his project.

                    Bellesiles critics then turned to the same data set?which still had little or nothing to tell about pre-Founding gun culture?but by that time had plenty to tell about Bellesiles. That’s all fair and good. But it goes off the rails when the critics then assert that the data which really don’t tell much about Bellesiles thesis?pro or con?somehow proves not-Bellesiles thesis.

                    1. Didn’t one of Bellesiles data sets not actually exist, or if it did, it was destroyed in a flood, as he later claimed?

                    2. I thought Bellesiles claimed it was his notes that were lost in a flood. Correct me if I misremember.

                      His critics also pointed out he seemed to be claiming authority of other records which had in fact been destroyed?if memory serves, destroyed in the San Francisco earthquake/fire.

                      If the point of your question is to point again to the fraudulence of some of Bellesile’s data, and also of some of the things he said when defending against critics’ charges, we don’t need to go there. That’s all long-established.

      2. You want an answer? Academic historians are highly partisan. Look at the Bellesiles scandal…

        I mean, the scandal also shows the academy’s ability to correct itself, and its scandalous nature similarly demonstrates the extraordinary nature of the events…

        To say nothing of the particular longevity of citing this particular scandal, and the frequency of its being the go-to cite in every fucking discussion about the partisan nature of the academy, all of which suggests that maybe the interlocutors in question have less basis for their claims than they purport to…

        But let’s straightforwardly allow that academics are predominantly leftist. There are ways we can correct for this, can’t we? Ways we can isolate the actual “originalist” research we are asking them to do?

        Don’t forget that most law clerks have zero training outside an undergraduate degree and a degree from a professional degree mill, and judges are both political actors and only slightly more experienced in the practice of law itself. None of these people exactly have the tools necessary to engage in properly “originalist” research. So, the fact that they may not be as ends-oriented in conducting their originalist inquiry does not mean that their conclusions will be any more reliable or consistent.

        1. “I mean, the scandal also shows the academy’s ability to correct itself,”

          The point isn’t that they eventually reversed the award when sufficient pressure was brought to bear from outside the profession. The point is that they gave it in the first place, after it was already evident Arming America was a work of fiction.

          Only committed partisans would have done such a thing.

        2. the scandal also shows the academy’s ability to correct itself

          I’ve always liked Max Planck’s explanation of the process whereby the academy corrects itself :

          “A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die and a new generation grows up that is familiar with it”

          1. Undoubtedly truth in that. But I suggest two academic disciplines, at least, where members at the peak of the profession not infrequently weigh new evidence, and abandon previous positions as a result: those being physics and history. Read, Richard Rhodes,’The Making of the Atomic Bomb for multiple examples of the former. I mention the latter on the basis of personal experience.

            I am tempted to mention journalism as another example. Seymour Hersh reports in his new autobiography, Reporter, A Memoir, on several instances where he got stories wrong on the basis of what he thought was good information, and learned only much later what was mistaken. In one instance, Hersh got accurate contrary information from an inside source years after he wrote his story, and persuaded the New York Times to put a lengthy (more than a thousand words) correction on the front page.

            I am less certain whether practitioners at lower levels of professional status will as readily make that kind of switch?and of course many won’t, regardless of status.

            1. Yeah, I think ol Max probably had his tongue in his cheek. A bit. But we all know what he was getting at.

              Geology is another example of the battle between entrenched opinion and new facts. Wegener proposed continental drift in 1912. Holmes even proposed a mechanism, not far off the actual one, in 1928. But the theory was about as respectable as global warming scepticism is now – and particularly poo-pooed in the US. For nearly fifty years. Only with the mapping of the ocean floor, in which US geologists had a major advantage over everybody else because of access to US Navy data, did the penny begin to drop, and Hess worked out his seafloor spreading theory (also assisted by his time in the Navy.)

              When Marie Tharp identified a rift valley in the centre of the mid Atlantic ridge, her collaborator Bruce Heezen was appalled – it woud give ammunition to the crazy drifters !

              But in the end, the weight of actual evidence won the day. But an awful lot of old geologists had died confident it was nonsense, even though Wegener had provided quite a lot of circumstantial evidence and Holmes had proposed a mechanism, decades previously.

    4. Perhaps the reluctance is related to the hysterical political near-uniformity of academics, historians or otherwise.

    5. “Barnett’s premise?or at least the premise he wants folks to adopt while answering his question?is that originalism somehow constrains judicial decision making, and that makes it a better option”

      It does and it does. The fundamental point that has escaped Mr Lathrop is that “originalism” is merely a clarification of “textualism.” The fundamental constraining of judicial discretion comes from binding them to the text, rather than allowing them free play in the sunlit unfenced fields of “intent”, “purpose” and “wise policy” (all of which are unstated, because they’re ABSENT FROM THE TEXT.

      Originalism then simply provides an added detail for when there a particular type of uncertainty – how do we apply a textualist analysis when there appears to be a difference between what it means now and what it meant originally ? 95% of the time there will be no difference so Lathrop’s grumbling about how we discover a two hundred year old meaning will be irrelevant. And in the few cases where there appears to be a difference of view, each side’s Counsel can do their researches and place them in fron of the judges for their decision.

      This is a couple of orders of magnitude more constrained than running free in the meadows of unstated intent.

      1. This is a couple of orders of magnitude more constrained than running free in the meadows of unstated intent.

        Nope. Not if the person practicing the originalism/textualism is also the person allegedly constrained. That isn’t constraint at all. That’s no boundaries, arm waving, and making things up, like Scalia in Heller. As long as that case stands, it will stand as conclusive proof of the vapidity of “originalism.”

        1. In Lathropia, the legal system is in some ways similar to the United States. Each side has a lawyer who puts his client’s case to the judge. The judge determines the winner according to a “communion with the Goddess of Justice.” A smoking urn is brought into the court room. The judge wafts some smoke towards his nose and pronounces “The Goddess has spoken. You’re Guilty.”

          In the Mooreist Confederacy, things are similar except that the judge determines the winner according to a “test by the Pebbles of Justice.” The floor of the courtroom is painted in black and white squares. The judge is blindfolded and handed the five sacred pebbles of justice, and the two attorneys select white or black as their team color, by picking a card. The judge then throws the five pebbles in the air and they scatter on the floor. He then takes off his blindfolds and counts how many pebbles are on each color square. Judgement is awarded to the side that has most pebbles on its squares.

          In which system does the judge have more discretion ?

          1. But why ? Of course the judge in the Mooreist Confederacy could just lie. If there are three pebbles on white and two on black, and he wants to find for black, he can just miscount and say it was 3-2 to black. What’s the difference from the jude who pronounces based on smoke from the urn ?

            Obviousy the difference is that the pebble judge has to cheat IN PUBLIC VIEW. Everyone can see where the pebbles landed, everyone knows that he miscounted. Whereas with the smokey judge, no one can second guess him. The Goddess (allegedly) speaks to him via the smoke. That’s private to him. Nobody else is privy to the Goddess’s answer.

            And that is it in a nutshell. An interpretative theory where all the cards are played face up necessarily gives the judge less discretion than one where the cards are hidden.

            1. Alas, it’s a non-starter as an analogy. Insight into the past matches neither alternative?it’s neither smoke nor pebbles. But it can be judged in public view, by laymen with enough training to recognize intellectual honesty. A tall order maybe, but not as bad as putting postal clerks on a jury to decide the facts of a patent case based on quantum theory.

      2. Lee Moore, as for 95% of the time, etc. When you say that in reference to a two-hundred-year past, you put orginalism’s greatest weakness front and center. No one who understands the importance of context to historical meaning would think to conclude that 200 years of intervening contextual change?all of it utterly unknown to the period in question?wouldn’t usually inflect interpretations of past meaning. And alas, without historical training and practice, there is never an ability to note those inflections, discount them, and read antique meanings accurately. As an historical layman, every single thing you think you know about your text is conditioned by a mass of stuff that you are pickled in, and about which the writer of the text knew absolutely nothing.

        If you study history?a year or two reading original documents of all kinds from a particular era?the insight about how little you understand begins to dawn. More study lets you know that era like the people who lived it knew it, by reading what they read, from their own era, and from times preceding?emphatically not from succeeding times. That gives you some ability to filter present-minded interpretation from textual analysis. There is no easier way to do it.

        A person without historical study can’t do textualism without making a mess. Often, the trained person avoids making a mess only by confessing lack of sufficient record to support a conclusion. You’ll never get that from an untrained “originalist.”

        1. “A person without historical study can’t do textualism without making a mess”

          I assume you mean “originalism” rather than “textualism” here.

          Two points :

          1. A (textualist) judge would probably assert that he knew as much about textual analysis as most grammarians and Professors of linguistic theory. A couple of decades working in the salt mines of legal language can make you an expert. Thus you do not necessarily need to have a certificate in language to be an expert. You can be self taught and you can learn on the job. And ditto with the analysis of historical legal texts. Yup, you can screw up by not understanding the context of the times. But that doesn’t mean that a professional historian with a certificate will always get it right either.

          2. A court case traditionally has two sides. Each can bring an expert on how words were used at the time and the judge can decide between them. I reckon Thomas would say he does quite a lot of historial study, so he’s not a person “without historical study.” But I can’t imagine he’d object to a brief setting out a historical view different from his own. He’d just have to decide whether it was good enough to change his mind.

        2. “No one who understands the importance of context to historical meaning would think to conclude that 200 years of intervening contextual change?all of it utterly unknown to the period in question?wouldn’t usually inflect interpretations of past meaning.”

          I’m not quite sure what you’re getting at here. If you’re saying that the past and its contexts will become hazier the more distant they are, sure. If you’re saying that an originalist judge should be taking into account 200 years of changing context in arriving at his view of what the text meant originally, then no, he shouldn’t.

          The 200 years thing needs a bit of unpacking. In principle originalism requires you to look for the original meaning of any legal text whether it is a year old or a thousand years old. Most legal texts are much younger than 200 years old and so much more historically accessible than 200 year old texts. We just happen to have a particularly important 200 year old legal text, and yes, sometimes that makes it harder to be sure of the correct original meaning. But that doesn’t invalidate the interpretative theory. You learn to kick field goals. If it’s windy and it’s a long kick, it’s harder. So what ?

          1. Actually, the typical case is that the past becomes clearer?to a historian?the more distant it is. But by contrast, the past becomes progressively less comprehensible to a historical layman.

            That is because historians uncover an ever-more-complete record with the passage of time. A common mistake among historical laymen?Scalia succumbed?is to prize especially historical accounts from times closer to the events in question than to the present. It’s wiser to do the opposite.

            The layman, not knowing a bit about the record, thinks?using thinking which relies on a growing store of intervening intellectual changes of all sorts?ever more differently than the makers of whatever text is in question thought?and never suspects the growing difference even exists. The layman sees words he thinks he recognizes, in contexts he thinks he understands, and concludes, without noticing he is doing any concluding, that the past is like the present. And thus ends up thinking “proper”?in the necessary and proper clause?had something to do with admittedly antique notions about propriety which he’d better look into.

            1. “the past becomes clearer?to a historian?the more distant it is.”

              So, if I understand you correctly, if we want to understand the original public meaning of a statute passed in 2017, we – the folk living in 2018 – are at a disadvantage compared to the historians of 2218 ?

              1. Maybe not. Contemporaneous review is not as challenging as historical review. But the folk living in 2068 will probably be at that kind of disadvantage.

          2. If you’re saying that an originalist judge should be taking into account 200 years of changing context in arriving at his view of what the text meant originally, then no, he shouldn’t.

            No, I’m saying the originalist judge should be discounting completely that changing context, and that without historical training it is utterly impossible for him to do it. As a historical layman, he has no notion what the point of beginning looked like. And accordingly, no notion of what changed. All the judge knows is what came out the present end of all that change. That is his entire mental furniture, give or take a few bits.

      3. Originalism then simply provides an added detail for when there a particular type of uncertainty – how do we apply a textualist analysis when there appears to be a difference between what it means now and what it meant originally?

        By far the more relevant question, for the historically untrained, is, “How do we apply a textualist analysis when there does not appear to be a difference between what it means now and what it meant originally?” Because not noting the existence of a difference?even though a difference is actually there?is the norm among present-minded investigators. You can’t know what you don’t know.

        1. The words stick in my gullet, obviously, but you hire an effing lawyer. If your lawyer thinks there might be an original meaning that’s different from the current meaning, and it’ll help you win, it’s his job to research it and present it to the judge.

          But but but, a lawyer can’t know everything ! Correct. He doesn’t know everyhting about bloodstains either, but it’s his job to find someone who does.

          1. Well, finally. That’s my whole argument. Let the lawyers find historians to present expert testimony. That would be the basis of an intellectually honest originalism, however far short of useful it might prove to be.

            But note, that would be way different from current practice, where appellate judges act as their own historians, give themselves evidence, and then decide the case on the basis of the “facts” they introduced. And as far as I know, that’s the only model the legal community wants to see. If anyone could somehow make actual expert historical testimony constrain legal fact finders, I think the whole “originalist” legal community would give up the candle. Constraint is not what they want from the enterprise.

    6. No, you don’t have to adopt that premise to answer the question. That’s the whole point of “self described”. If you assume every person who claims to be an origanlist is lying or deluded, you can still answer the question as presented.

  10. I suspect that many potential nominees in category A would tend to see themselves as “originalists,” and therefore tend to describe themselves as such. For a generation or more, conservatives have self-identified as “originalists” in discussions of constitutional matters, and done so so strongly that it’s something that they have internalized that they really believe it. Every one of the hardcore conservatives on the Court over the last five decades (i.e., Rehnquist, Scalia, and the current quartet) has publicly identified as such, regardless of how consistent they were in that regard.

    So what it boils down to is that we are going to get a nominee, and likely a Justice, nominated by a Republican president. Given the kind of nominees that present-day Republicans have put forward, I doubt that I will find anything reassuring about whoever ends up being nominated in Trump’s name.

    1. Oops, typed too fast. I meant to type “internalized so strongly that they really believe it.”

  11. “I’ll take the False Choice Fallacy for $1000, Alex.”

    1. Might want to learn what that is before you choose it, because this isn’t one.

  12. “Can you imagine any scenario in which a justice writing an opinion in 1925 which calls for this result (whatever the advocate is arguing for) and which could have garnered 5 votes?”
    …might be a winnowing question.

  13. As long as judges/justices are chosen through a political process, that political process will be choose candidates based on desired outcomes. Add to this that many or most candidates are political animals with high ambition, some of whom doubtless adjust their judicial philosophy to the political circumstances of the times. This is perfectly symmetric on both sides, democratic or republican.

    True originalism (if it exists) never prevails. It can delay re-interpretations of the text, but over the long haul it will yield to the mores of the time, because the desired outcomes change over time.

    Our only hope is that, once confirmed to a lifetime appointment, justices put country over politics and adjudicate with integrity. What is most disconcerting to me is that Trump values, above all, extreme sycophancy. This is probably the most dangerous characteristic for a justice.

  14. Most likely Trump will appoint someone like Scalia, who was …

    (c) …an political activist ideologue who legislated from the bench as much as anyone in recent history, but PRETENDED to be an originalist, when it suited his purposes to do so.

    1. How do you explain Scalia’s 4th amendment jurisprudence?

      1. Your argument is that in one area he was (x), therefore in other areas he couldn’t have been (y)?

        1. No the argument is that in one area he was x, therefore “he was never x” is contradicted.

          You can still have “he was sometomes not x” but that’s not really consistent with “politically activist ideologue” unless, perhaps, you take the view that his 4th amendment jurisprudence was a tactical concession to bolster his false colors, made in an area he didn’t much care about. Which is a view I suppose.

          1. “the argument is that in one area he was x, therefore “he was never x” is contradicted.”

            But… “he was never x” wasn’t the claim advanced.

        2. Also, as has been pointed out above: Texas vs Johnson belies your point.

      2. How do you explain Breyer’s 4th Amendment jurisprudence?

  15. Self-described “originalists” hide behind their armor of hypocrisy, where they can say they are following original intent but really just want to get to their preferred outcome. Originalism serves merely to brush away unwanted precedent.

    So I’d prefer no. 1. Conservatives who observe a “living constitution” change with the times. There are many examples of justices who “drifted to the left” during their tenure. Not as many drifted to the right.

    1. What is your definition of judicial integrity?
      If a Court in 1975 had unanimously found that the Constitution does not prohibit a law which defines marriage as limited to one man/one woman, would that decision at that time have been wrong?

      1. You need more legal reasoning in your argument.

        The way we got nationwide same-sex marriage wasn’t because of the argument you suggest.

        Rather, it was the attempt to strip away the (pre-existing) right to have a same-sex marriage that did it.

        The California Supreme Court found that the existing statute in California did not require spouses of differing genders, and thus allowed marriages to proceed where the spouses were the same sex. Then came the effort to strip away that marriage right, which was overturned in court.

        1. Obergefell v. Hodges was not decided on that basis.

          1. Facts is facts. Which of my facts are you claiming is not a fact, specifically?

      2. “If a Court in 1975 had unanimously found that the Constitution does not prohibit a law which defines marriage as limited to one man/one woman, would that decision at that time have been wrong?”

        I’m not sure what you’re getting at. Of course it would have been wrong.

    2. “Self-described “originalists” ………… say they are following original intent ”

      No they don’t.

      2/10

      Read the Question.

  16. Whatever a philosophy calls itself, I’d ask if it leaves the living and evolving to the amendment process.

    Of course, sometimes when the courts adapt an existing principle to new circumstances the living-constitutionalists will say “aha! it evolved! it’s alive!”

    Also, there are plenty of people who attribute their own views to the original understanding, but rely on “law office history.”

    It’s basically a “duck test” – is the judge acting like a judge or like a member of an ongoing constitutional convention?

    There’s room for disagreement even among judges who sincerely are into following their proper role (judging not amending).

    There’s a whole lot more room for disagreement among judges who think they’re part of a constitutional convention.

    1. “Whatever a philosophy calls itself, I’d ask if it leaves the living and evolving to the amendment process.”

      You had a bunch of justices who decided that Korematsu was overruled by history, so I think you might be underwhelmed by your level of success.

      1. I would think that the exclusion and internment of large numbers of citizens based on the fear some of them might commit crimes in the future, while all the time purporting to leave habeas corpus undisturbed, represented a constitutional innovation, not the admission that this was wrong.

        1. Whoosh.
          The point just flew past.
          The point isn’t that Korematsu was wrongly decided (which it was), or that it was eventually overruled (as it apparently has been).

          The point was that it was overruled by “history”… neither by express overrule of the USSC, nor by Constitutional amendment. There’s just suddenly dicta that Korematsu isn’t precedential any more.

          1. Why would it take a constitutional amendment to undo a bad decision? That’s the very opposite of what I said about respecting the amendment process.

            And anyhow, it wasn’t generic “history” which overruled the Korematsu decision, that was shorthand. First Korematsu’s volunteer lawyers showed that the Justice Department had misled the Court, and got his conviction set aside on that basis. Then Congress authorized hearings and proclaimed that the evacuation/internment program had been unconstitutional. Congress passed, and President Reagan signed, a compensation bill.

            1. “Why would it take a constitutional amendment to undo a bad decision?”

              Because that’s how our Constitutional Republic was designed?

              Examples:
              USSC decides that black men don’t have rights. So we need a Constitutional amendment that says they do. USSC says that income tax is unconstitutional, so we got a Constitutional amendment that says it is peachy-keen and fine.

              1. Supreme Court Decisions Overruled by Subsequent decisions (as of 2002)

                If the Supreme Court’s decisions are the law of the land, then the law of the land seems to say that the Supreme Court can overrule its own decisions. By your reasoning, only a constitutional amendment can require the Supreme Court to adhere to previous decisions.

                QED

                1. Let me put it this way: Should the Supreme Court overrule the decisions in which it overruled prior decisions?

                2. “the law of the land seems to say that the Supreme Court can overrule its own decisions.”

                  Duh. Seriously?

                  Now, how do you overrule the Supreme Court if you are NOT the Supreme Court? I mean, WITHIN the structure of the Constitution. This rules out things like “just take control of the military, and shoot anyone who doesn’t do what you tell them to do.”

                  ” By your reasoning, only a constitutional amendment can require the Supreme Court to adhere to previous decisions.”

                  In the sense that NOT EVEN a constitutional amendment can require the Supreme Court to adhere to previous decisions?

                  1. Did you see the claim to which I was replying?

                    “”Why would it take a constitutional amendment to undo a bad decision?”

                    Because that’s how our Constitutional Republic was designed?

                    “Examples:
                    “USSC decides that black men don’t have rights. So we need a Constitutional amendment that says they do. USSC says that income tax is unconstitutional, so we got a Constitutional amendment that says it is peachy-keen and fine.”

                    1. “…how do you overrule the Supreme Court if you are NOT the Supreme Court?”

                      If you’re Congress, I suppose you apologize for Japanese internment/exclusion and vote compensation to the victims – and meanwhile, sympathetic lawyers prove to the district court that the Department of Justice misrepresented key facts to the Supreme Court and undo Korematsu’s conviction on that basis.

                    2. (Same with the Sedition Act – if you’re Congress you vote to repay the fines of Matthew Lyon and Thomas Cooper, with interest, those two being two of the victims of the Sedition Act)

                    3. “Did you see the claim to which I was replying?”

                      Sure did. I wrote it. It was:

                      The point was that it [Korematsu] was overruled by “history”… neither by express overrule of the USSC, nor by Constitutional amendment. There’s just suddenly dicta that Korematsu isn’t precedential any more.

                      And in your response, you somehow thought it necessary to explain to me that the USSC can overrule previous decisions.

                      So I repeat. Duh. Seriously?

                    4. My question: “Why would it take a constitutional amendment to undo a bad decision?:

                      Your answer: “Because that’s how our Constitutional Republic was designed?”

              2. It doesn’t take an amendment to undo a bad decision, all it takes is the executive branch to not enforce it or Congress to not fund it. Give things a bit of time, and the Court will flip flop due to the appointment process.

                And it’s debatable whether we were designed with judicial supremacy. Hamilton in Federalist 78 says no, despite what the anti-federalists like Brutus said.

                1. Except that that would violate the President’s obligation to see that the laws are faithfully executed.

                  1. The Court has no authority over a co-equal branch of government, so the Court best keep that in mind, if it expects the Executive Branch to follow whatever *interpretation* of the law it has. Moreover, the president decides *how* to “faithfully” execute the law.

                  2. The Constitution *is* the law. (The Supreme Court’s rulings on the Constitution, to the extent that they conflict with the Constitution, is not.)

  17. This question, of course, supposes that originalism is not itself a sort of policy preference.

    But of course it is. Since originalism is not required by an originalist reading of the Constitution, a preference for originalism must come from somewhere else other than the Constitution.

    There is a reason that conservatives like originalism. They feel that it (for the most part) advances their political goals while restraining the political goals of liberals. What is not to like???

    I also think the question is framed in an interesting way. Which justice would you most fear? Why should fear be an appropriate emotion in this context??? The Supreme Court is the head of only one branch of government. And mostly, it is not where the action is or should be.

    1. (cont.)

      Here is a more honest way of looking at it. If conservatives are elected to the political branches, you can (mostly) expect justices who advance conservative goals, either through originalism or otherwise. And similarly, if liberals are elected to the political branches, you can expect justices who advance liberal goals. Whether or not the conservatives call themselves conservative has nothing to do with it.

      I actually do not have a problem with this state of affairs. I do not have the same expectations for an ideological neutral judiciary that others have. And, in fact, think the whole idea is a fantasy. At the end of the day, with some lag, the Court will inevitably reflect popular opinion.

      So, with that background, to answer the question posed, it doesn’t make a difference. And I would fear neither. Whomever is in power today, whether on the court or in control of the political branches, will be out of power tomorrow. These things work in cycles.

      The whole question is kind of stupid, as it presupposed a possible consensus regarding interpretation that could never happen and should never happen.

      1. If the Court should just reflect popular opinion, there’s no point in having it. That means that if we fill America with enough sharia believing Muslims, the 1st Amendment should properly allow the establishment of Islam.

    2. “There is a reason that conservatives like originalism.”

      Sure, and it’s not complicated.
      Conservatives are backwards-looking for solutions to problems… how did this problem get solved in the past? OK, then that’s how the problem must ever be solved. White folks own all the property, and black folks IS the property was good enough for the Founders. Women should be married off but their concerns are trivial and need not be addressed. We certainly can’t let them VOTE or anything important!

      Originalism denies that any cultural change that has taken place has any significance. Mainstream America has kind of gotten used to the idea that gay people are people, even if some are still struggling with the idea, it turns out that treating gay people like they were people does NOT cause society to collapse into a nasty dustcloud of pedophilia, bestiality, and fabulously stylish clothes.

      The problem that Conservatives face is that a substantial portion of the population doesn’t accept “but that’s the way our grandparents did things” as authoritative.

      1. The problem that Conservatives face is that a substantial portion of the population doesn’t accept “but that’s the way our grandparents did things” as authoritative.

        That’s the whole point of a constitution. To authoritatively say, “This is the way to do things, and if you don’t like it, tough.” (Unless, of course, you amend it.)

        1. “That’s the whole point of a constitution.” Is it?

    3. But of course it is. Since originalism is not required by an originalist reading of the Constitution, a preference for originalism must come from somewhere else other than the Constitution.

      That’s supposed to be one of those clever gotchas — “the constitution doesn’t say to use originalism to interpret itself!” — but it’s really just nonsensical. Nobody needs to write down, “Here are some rules, and you should understand them the way I mean them.” It’s self-evident that when one declares a rule, one wants people to obey the rule one wrote then, rather than however one feels like interpreting it. That’s the entire point of writing down a rule.

      1. Actually it’s quite common to write down rules in a vague way, so that there is a lot of flexibility for people to use in the future. But moreover, why should we care what those dead people wanted?

  18. And let us not forget that Randy Barnett is in favor of depriving millions of health insurance. Given the health consequences to innocent people, that is not exactly a forgivable policy preference.

    The real lesson here is that we should listen to the judicial branch less when it is going to harm people. Of course, harm usually comes from one of the other branches, but with the sort of motivated reasoning the Randy Barnett was pushing around not too long ago with made up distinctions harm can come from the judicial branch also. But only if we choose to obey it. Judicial review is not in the Constitution. And more importantly, judicial supremacy is not in the Constitution. The way to rein in an overly aggressive conservative or liberal court is to not concede that it has the last word.

    1. What policy allegedly deprives millions of people of health insurance?

      1. The policy of abolishing Obamacare (subsidies)

    2. Moronic post. Every single decision can be set to benefit or harm another person. That’s the whole point.

  19. What is the alternative to originalism?

      1. So
        No Brown vs Bd.
        No incorporating any of the Bill of Rights.
        No Roe. No gay marriage.
        …?

        1. I’d be OK with that, as long as it is done in a principled way.

          (Although I’m not sure you’d end up without all of those. At least some of them turned out that way without overruling any previous precedents. Incorporation exists the way it does exactly because no one wants to overrule the Slaughterhouse cases, so they’ve circumvented that precedent instead. Roe was a development of the case law on privacy, like Griswold v. Connecticut, as well as 1st amendment case law about doctors talking to patients. I’m not sure that there was ever a case that said that banning abortion was allowed.)

          1. Plessy v. Ferguson – Separate but equal is constitutional

            (several precedents) – The states don’t have to have juries or respect the right against self-incrimination, they can practice double jeopardy, etc.

            etc.

            1. Yes, I understand that, but I also understand that amending the Constitution is possible, and perhaps not as difficult as people think. At the moment, there is no incentive to try to get the Constitution amended because it’s easier to try to get SCOTUS to do it for you. In a world with much stronger stare decisis, more people would work on Constitutional amendments.

              That said, it’s worth reflecting on the UK House of Lords’ 1966 practice statement. In London Tramways Co. v London County Council [1898] AC 375, the House of Lords had said that it considered itself bound to follow all of its previous decisions under the principle of stare decisis, even if this created “injustice” and “unduly restrict(s) the proper development of the law”. But in 1966 they changed their minds and said that they would overrule their own precedents. Then again, they’ve done so only 21 times since.

              Of course, in the UK it’s easier to change the constitution than in the US, but still…

              1. “In a world with much stronger stare decisis, more people would work on Constitutional amendments.”

                No they wouldn’t. In a world with much stronger stare decisis, Justices would simply discover, even more often than they currently do, that there was a subtle distinguishing point which made the past precedent inapplicable. Bear in mind that most lawyers can do this before they are weaned, and Justices of the Supreme Court come up through the inferior courts where dodging inconvenient precedent set by a higher court is your daily bread and butter.

                When you grow up , best beloved, you will discover that the hearts of men are filled with trickery and deceit. And judges are men. Or possibly serpents.

                I happened to be in Iceland a couple of weeks ago, and found myself chatting to an Icelandic lawyer in a bar. I was pleased to dscover that “what do you call a thousand lawyers at the bottom of the sea” was an old joke even in Iceland.

                1. In a world with much stronger stare decisis, Justices would simply discover, even more often than they currently do, that there was a subtle distinguishing point which made the past precedent inapplicable.

                  That too. (Which is exactly what happened in the UK House of Lords.)

                  But you’ll note that those two aren’t mutually exclusive…

            2. Most states mirror most (though in many cases not all ) of the major rights protections in the first 8 amendments to the US constitution in their state constitution.

        2. “No incorporating any of the Bill of Rights”

          Well, except that the text does explicitly protect “privileges and immunities” conferred by federal citizenship. The decision reading that part out of the 14th is why you have to have “incorporation” under one of the other sections.

    1. Everything that isn’t originalism. Purposivism, Active Liberty, Modern meaning, Original intent. Scholarship abounds.

      Which you, as a regular on this blog, know. But you want to delegitimize all of them as not actually things.

    2. Originalism: Let’s read this thing and see if we can figure out what it meant when it was set down on paper.

      Living Constitution: Let’s gloss this text so that it supports our ideological, pseudo-legislative agenda.

      That should clear things up.

      1. Originalism contains a fundamental flaw, a reverence for the guys who wrote it, that they couldn’t make a mistake. The skill of anticipating the future is hard. REALLY hard. The fact that a bunch of guys 80 years ago or 150 years ago or 220 years ago all thought X doesn’t mean that we do, or should.

        So, the bulk of the Constitution was written in 1789. But it’s been amended a couple of dozen times since, with each amendment directly overruling the 1789 document… sometimes directly, and sometimes by implication. The implications are… subject to partisan wishful thinking. This is why you don’t get all Constitutional cases resolved 9-0.

        1. Well, there are methods of changing the law, and the Constitution.

          Origiinalists claim that originalism keeps the law as it is unless and until changed by legislative or amendment processes. They argue that other methosds would mean effective judicial amendment of laws and constitutional provisions.

  20. Presidents may not choose a replacement for a retiring Supreme Court Justice within a year of a national election. It is called the McConnell Rule and shall be obeyed.

    The people must be allowed to speak in the November, 2018 election. No appointments until the newly elected Congress is seated.

    What goes round, comes round!

    1. That works fine hen you control the Senate. The Democrats do not.

    2. Technically the McConnell Rule is no SCOTUS nomination within a year of a Presidential election.

      1. No; what you are quoting isn’t the “McConnell Rule”, it’s the Biden Rule.

        1. It sounds suspiciously like you don’t approve of how Gorsuch got to be on the Supreme Court, given that you don’t want to give your tribe credit for changing the rule.

          1. Why should I care who gets credit?
            Biden’s not a monster.

            1. “Biden’s not a monster.”

              No, but I’d keep my daughter out of arm’s length all the same.

  21. Someone who follows the constitution or someone who doesn’t.

    You folks at Reason never cease to amaze me.

    Oh let me see B you fricking idiots

    Geez I though this was a libertarian site. Lack of Reason is a more appropriate site name

    1. Are you not familiar with Barnett at all or is this a comment on the commentariat?

      If the latter, it is somewhat bemusing that so much of the commentariat seems to be pro-Living Constitution. (Or “the Constitution mean whatever is convenient for it to mean”.)

      1. I find it remarkable that so much of the commentariat seems to be authoritarian and conservative to the point of being card-carrying members of Libertarians For Bigoted, Authoritarian, Big-Government Immigration Policies And Practices.

        With respect to the Conspirators, one might ask Prof. Barnett to explain the libertarian position that supports pre-emptive invasion of the wrong country, which is conveniently congruent with right-wing authoritarianism.

      2. The Constitution means what the Constitution means now.

        It’s a contract that describes how we, the people, interact with our government and how it exercises our power.
        The way that people thought that ought to work in 1789 is a valid starting point in determining how it ought to work now. But everyone who lived under that 1789 document is dead now, and it’s worth pointing out that they thought it needed changes right from the beginning.

        In my lifetime, the Constitution protects black people and women, expressly issuing them a right to vote. This presents some assumptions about how things “ought to be”. Those assumptions are not the assumptions that would have been made under the Constitution of 1789, as Chief Justice Taney pointed out for us. I prefer the assumption that all people are equal under the law, over the assumption that some people deserve to be subjugated because of their natural skin pigments.

  22. And once again the Volokh Conspiracy devolves into, “Everyone who does not agree with me (or I think does not agree with me) 100% is evil, everything I say must be taken as fact (although I prove no cites), and any suggestion I make is the only true way out (and anyone who disagrees with me is, well, you know…).”

    Have fun, y’all.

    1. There isn’t much point to any of this, Jerry B., other than taking a side. The dividing line is plain.

      It’s reason, science, tolerance, education, and progress or the opposite.

      1. Amen

    2. Well, it’s simply objective fact that I am right and anyone who disagrees with me is not. It’s also true that everyone would be better off if they just did what I wanted them to, instead of insisting on having their own input, but, well, people have a right to be wrong about things, if they want to.

  23. Prof. Trump will select a self-described originalist who shares Pres. Trump’s political and moral views (or the Republican Party’s political and moral views, if worse).

    Self-described originalists tend to reach the desired right-wing result, which means ample helpings of backwardness and intolerance.

  24. The problem is, originalists skew heavily towards certain political preferences, and the others tend to skew just as heavily toward other political preferences. Name a notable left-wing originalist.

    So while I’d prefer originalism, in fairness it’s less a method than an indicator. Originalists are all more likely to think along the lines a classical liberal would think, which is my political preference.

  25. Originalism?

    Why should anyone devote much attention to something that is younger, less sensible, and less popular than the Kardashians?

    Other than the desperate clinging part, I mean.

    1. I know this is spitting into the wind, but:

      Answer the hypo above.
      If a SCOTUS had ruled in 1975 unanimously upholding a “marriage only between one man and one woman”, would that decision at that time have been wrong, according to whatever “non originalist” judicial philosophy you favor?

      1. Supreme Court judgements are by definition a correct statement of the law. That doesn’t mean you can’t criticise their reasoning, but it puts limits on the sense in which SCOTUS can be “wrong”.

        1. So any decision at anytime prior to Obergefell which said that the EPC and the Due Process clause do not protect a marriage between 2 men is correct.
          That looks like legal realism to an almost Maoist degree.
          You ought to tell us more about the positive aspects your “non-originalist” philosophy, before you superciliously condemn originalism.

          1. That’s not legal realism at all. That’s simply pointing out that, under art. III of the Constitution, “the judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

            (As a result of which, “it is emphatically the province and duty of the judicial department to say what the law is”.)

      2. Answer which hypo above?

        I believe a decision upholding homophobia-based discrimination against gays would have been a bad decision.

        I do not recognize any connection to this discussion.

        1. Justices are not philosophers at large.
          They decide cases.
          In what sense would the anti gay marriage decision have been “bad”; and what does “bad” (in the sense you mean) have to do with the work judges do?

          1. Presumably the Reverend meant that it would have been “bad” in the sense of “unfortunate”.

            1. I suspect that IS what he meant.
              The obvious followup question then becomes:
              “Why do I care that it’s unfortunate?; I’m a judge, not a legislator, or a moralist.”

              1. Because you’re also a citizen and a voter, and so you might want to overturn the judges decision through the political process.

                1. Indeed (assuming the decision is not in the category of Roe vs Wade that shuts down the political process).
                  But, again, what does this response have to do with the work judges do?

                  1. – Roe v. Wade can be overturned through the political process too. See the 8th amendment to the Irish Constitution, for example.

                    – Nothing. I’m not sure why you thought that that was the question.

              2. Just because you don’t care doesn’t mean that others won’t. Some people believe that justices should do justice.

          2. Smooth:

            I encourage you to read Justice Breyer’s book (it’s “Making Democracy Work” or something similar) and one of Justice Scalia’s books. I sense they could illuminate some of the points have attracted your attention — and which deserve attention.

            Cheers

            Rev. Kirkland

        2. If you need a less poignant hypothetical:
          Was the 13th amendment, according to whatever non-originalist theory you favor, necessary; or could a SCOTUS after 1865 have simply correctly ruled that the Constitution as written and interpreted, prohibits chattel slavery?

          1. Just to give you my version: I would think that Dredd Scott v. Sandford and other such cases would be controlling.

            (And even if we assume that that case doesn’t exist, I think it would be difficult to say that slavery is inherently unconstitutional for the same reason that the death penalty can’t be: because the Constitution explicitly contemplates it existing.)

            1. So you are willing to swallow originalism when you are absolutely compelled to.
              Why only then?

              1. Stare decisis doesn’t offer an answer when the question is a matter of first impression. In that case, there is nothing to base the decision on except some version of originalism.

  26. Originalism…that’s the method where you pretend like the Federalists didn’t win the political struggle of the day, and appoint anti-federalist and Jeffersonian views as “the” correct views, right? John Marshall and his Federalist colleagues just didn’t understand simple English, because every word, especially abstract words, clearly have one meaning…

    If we started over today and a new constitution was drafted, which partisans would later generations cite as conveying the “original meaning” of the text? I mean, it’s not like we argue over tge very meaning of words in our political discourse … /S

    1. Obviously we argue about the current meaning of words. The idea of textualism (of which originalism is a merely a subset) is that we argue about what is visible. If intent or purpose or policy was the measure of legal interpretaton we’d argue about those. The advantage of the text is that everyone can see it. There are still going to be arguments about what it means. But the argument is confined to a subject matter that exists on paper, and so is objectively the same for all arguers, not invisible subject matter that is in each individual head.

  27. It’s not a trick question, but it is basically irrational. If you ask someone “Which is best, a greater evil or a lesser evil?” the expected answer does not speak to its merits. Would you say that someone who has said he would prefer to die by drowning than by burning has recognized the virtue of drowning?

    1. I think this misses the point of the question. Yes, it is intended to get living constitutionalists to be more sympathetic to originalism, but the method is to show, in stark terms, the downsides of living constitutionalism, for living constitutionalists.

      Which are that you will get more judgments you don’t like if your political enemies are simply making things up as they go along, than you would get if they followed their wacky theory of just reading the text. In the latter case, they’ll sometimes rule your way, because the text will be in your favor.

      So yeah, a court of originalist judges is way worse for you that a court of folk committed to ruling according to your political preferences. Obviously. But it’s way better than one packed with your political enemies, committing to ruling against them.

      This is of course the fundamental divide between liberals and conservatives as to the ideal structure of the polity. Do you bet that every day will be sunny ? Or do you prepare for rain ?

      1. I don’t think I am missing the point, but even if I am, you say that “the method is to show, in stark terms, the downsides of living constitutionalism, for living constitutionalists.” However, notice that you would make this showing only by loading up on the negatives assigned to the living constitutionalist. You have him sharing the “political and moral views” of Trump, while the hypothetical originalist is pure of heart so far as we know. If you want to make a comparison, why not postulate that both of our hypothetical justices share Trump’s political and moral views?

        By assigning the same characteristics to both candidates you would learn how much faith nonoriginalists would have in the ability of the originalists to faithfully follow their supposedly scientific pursuit of single-meaning etymology wherever it may take them.

        1. Hmm. OK then. In the red corner we have a Trump opinioned self professed living constitutionalist and in the blue corner we have a Trump opinioned self professed originalist.

          If the “originalist” is lying, or if you postulate that “Trump opinoned” entails “liar” then there would appear to be no difference between the two. You will get a steady stream of Trumpist opinions. But there must be some non zero probability that the “originalist” might be telling the truth, or that being “Trump opinioned” does not entail dishonesty, merely that as a policy matter he favors the same sort of things as Trump does. In that latter case you will get a steady stream of originalist opinions, whether they happen to align with Trumpist views or not.

          On an expected value basis, therefore, going for the “originalist” is going to get you more originalism and less Trumpism than if you go for the living constitutionalist.

          So sceptical non originalists would be wise to vote for the living constitutionalist if they feel than, on average, originalism will give them more deplorable judgements than Trumpism. And vice versa. This is so even if you think the guy is such a liar that 99% of the time, he’ll be substituting Trumpism for originalism. And since you can’t possibly know 100% that he’s a liar, it’s irrational to assume that it makes no difference.

          1. You still have not addressed my original question: Would you say that someone who has said he would prefer to die by drowning than by burning has recognized the virtue of drowning?

            Your latest argument is premised on the assumption that originalists are principled defenders of the constitution, while living constitutionalists are free wheeling. Living constitution people also read and follow the words of the constitution. Remember, it was the originalists who persuaded themselves that a right to bear arms as part of a well-regulated militia is not really what the Second Amendment says; rather, it is an individual right of self-defense. To take the originalist position you must ignore part of the constitution. And this “truth” was finally discovered by five justices 217 years after the Second Amendment was adopted!

            Are living constitutional people to take comfort in this sort of selective historicism?

            1. Would you say that someone who has said he would prefer to die by drowning than by burning has recognized the virtue of drowning?

              “Virtue” seems like an odd word. Clearly drowning is bad so it’s hardly a virtue. But it’s better than some other possibilities. Drowning ranks higher than burning in his list of things he’d like to happen to him. That doesn’t mean that a picnic in the meadow on a sunny day wouldn’t be preferable to either. Barnett isn’t inviting you to say you like originalism, he’s asking whether you’re capable of ranking two options neither of which you like.

            2. Remember, it was the originalists who persuaded themselves that a right to bear arms as part of a well-regulated militia is not really what the Second Amendment says

              Nor is it. It’s a prohibition on infringing the right of the people to bear arms, justified by the necessity of a well regulated militia. The militia isn’t a condition, it’s an explanation. This is really simple English grammar which would never have been controversial if it was about milk :

              “Calcium being necessary to healthy bones, no tax shall be levied on milk.”

              The rule is no tax on milk. Calcium and bones is the justification. But if it were to be discovered later that actually calcium is of no importance to healthy bones, or that you could get all the calcium you need from pills, the rule would still be no tax on milk. Sure people might think, well, maybe we should change the rule now. But until they did, it’d still be the rule.

              1. Yes, we are all now well acquainted with the argument that “the militia isn’t a condition, it’s an explanation.” But, can you offer any other example in the constitution or the bill of rights where the drafters offered an explanation? Does the lack of other instances cast doubt on your original intent theory? And not only did the drafters waste a noun, “militia” and an adjective, “well regulated”by including some sort of concealed “whereas” clause. Indeed, nearly half of the 2d Amendment is made up of wasted words. At least as persuasive as the wasted words theory of the originalists is the state protection theory articulated by Breyer in both his dissent to Heller and in his 2010 book, Making Our Democracy Work, He suggests that the amendment was adopted because Article I of the Constitution granted Congress extensive power to regulate and employ state militias. It was intended to protect the powers of the states.

                Also, since the originalist reading of the 2d Amendment was not discovered until 2008, how can we conclude that this is what the drafters of the 14th Amendment intended in 1868 as the originalists told us in in McDonald in 2010. For that matter, how do the originalists know that the 14th Amendment was intended to incorporate the 2d Amendment at all?

                Perhaps the living constitutionalist would be more comfortable with this if she or he would have more faith in the “principled” solutions offered by the originalists.

                1. If you’re going to have a go at criticising originalism, perhaps you should know that it’s about original meaning, not original intent. It’s a subset of textualism, not glue sniffing for secret intent.

                  I agree that it is unusual to put in explanations. But it is a part of a Consttution not a statute. You will find no shortage of windy redundancies in things like the European Declaration of Human Rights.

                  And whether it is unusual or not, makes not an iota of difference to whether it has a clear unambiguous meaning. There simply isn’t any English grammatical construction that can make the miitia a condition rather than an explanation. Nor was there in the late 18th century.
                  Feel free to refute this by finding an example of that construction used as a condition.

                  It is proper to resort to secondary rules of interpretation, such as what drafters did elsewhere, and even what their intent might have been, if the text is ambiguous. But there is no ambiguity at all about the construction of the sentence. Again – if you disagree, find a counter example.

                  1. As you say, the first half of the 2d Amendment “is a part of a Constitution not a statute.” Idle words are not to be presumed, no matter how you choose to diagram the sentence.

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