Ilya Shapiro makes the libertarian case for Brett Kavanaugh

The upside greatly outweighs any downside

|The Volokh Conspiracy |

Just as no major party is perfectly libertarian, neither party is likely to appoint judges who will please all libertarians. In part, this is because libertarians–like others–often judge the courts by their results, not how those results are reached. I myself do not look for a libertarian judge. Instead, I look for a judge who (a) will seek to follow the original meaning of the text of the Constitution, (b) has the intestinal fortitude to invalidate the acts of the majoritarian branches, (c) understands that judges are agents of the people, to whom they owe a duty to hold the other branches within their constitutional powers. (And to my mind this includes recognizing that the original meaning of the "due process of law" includes providing a judicial forum in which to contest whether a legislature has exceeded its just powers in a constitutional republic where first comes the rights of We the People, and then comes government "to secure these rights.")

As I explain in Restoring the Lost Constitution, what matters for constitutional legitimacy is that a constitution establishes a law-making process by which laws imposed on the people are likely to be necessary and proper. A judicial branch that holds legislatures to the letter and spirit of the text of the Constitution will yield more "libertarian" results than "the constitution" now given us by the Supreme Court. So I just want judges who will consider such originalist arguments in good faith. That requires them to put interpretive "method" over their own political preferences, which I admit is very hard for everyone to do–myself included.

Is Brett Kavanaugh such a nominee? Some libertarians have been skeptical of this, and I have been spending a bit of time bringing myself up to speed on his record. There are a few sour notes–two in particular–but on balance, his record is strong. He is pretty ardently committed to textualism–more on this below–and the separation of powers. And he is skeptical about judicial deference to administrative agencies. He has a superb Second Amendment opinion in Heller 2 in which he rejects the tiers of scrutiny approach that many circuits have been using to gut the Supreme Court's decisions in Heller and McDonald. These are not just good, they are very good.

Now comes Cato's Ilya Shapiro to make The Libertarian Case For Brett Kavanaugh's Supreme Court Nomination. And it is a strong one. Here are some excepts.

In a 2009 law review article, he wrote that "constitutional text makes clear that the President does not enjoy unilateral authority with respect to all incidents of war. The Constitution gives the Congress not only the power to declare war . . . but also the power to raise armies, to fund wars and armies, and to regulate captures, among other powers."

Accordingly, Kavanaugh has both rejected executive supremacy in favor of judicial review and praised Justice Antonin Scalia's dissent in Hamdi v. Rumsfeld (2004), which argued that the military can't detain U.S. citizens absent a congressional suspension of habeas corpus. Simply put, Kavanaugh takes an originalist and textualist approach to the powers asserted and statutes at issue, rather than blindly deferring to the executive as many judges might.

Kavanaugh has also made some important Fourth Amendment rulings: "Most notably, in Jones v. United States (2010), he explained in dissent that the Fourth Amendment protects property and privacy interests in the context of the government's physical intrusion on a defendant's car to install a GPS device. Kavanaugh's reasoning was vindicated two years later when Justice Scalia adopted his approach for a Supreme Court majority."

Kavanaugh is a fan of Justice Scalia's that most acknowledge to have been solicitous of defendant's rights. For example, he "lauded Scalia's role as the court's 'most tireless advocate for the right to trial by jury [under the Sixth Amendment].'" In his own right,

"in United States v. Moore (2011), Kavanaugh found that a criminal defendant's Confrontation Clause rights had been violated when the government introduced Drug Enforcement Agency reports at trial without allowing the defendant to confront the report's author. In United States v. Nwoye (2016), he reversed the denial of a defendant's ineffective-assistance-of-counsel claim in a case where her lawyer had failed to present expert testimony on battered-woman syndrome.

I have been very impressed with Kavanaugh's concern in his rulings for mens rea requirements and his skepticism of strict liability crimes–an important but underappreciated issue. So is Ilya:

Kavanaugh has also been a leading advocate of interpreting statutes to incorporate robust mens rea requirements, protecting individuals from criminal sanction unless the government establishes a "guilty mind." See for example his dissent in United States v. Burwell (2012), in which he argued that a defendant could not face a mandatory 30-year sentence for carrying a machine gun during a crime because the government had not proven that he knew the weapon to be a machine gun. Or his concurrence in United States v. Williams (2016), where he commended a majority opinion that reversed the conviction of a gang member involved in a hazing ritual "to underscore the critical importance of accurate instructions to the jury on mens rea requirements."

So too in white-collar cases, where regulatory "crimes" have ballooned in recent years. In Lorenzo v. SEC (2017), Kavanaugh dissented from a decision upholding the Securities and Exchange Commission's broad theory of liability in enforcing fraud laws against a broker who transmitted a fraudulent statement dictated by his boss. Last month, the Supreme Court agreed to review the case (although of course Kavanaugh will be recused from it if he is confirmed).

So what's not to like? First and foremost is an opinion in "Klayman v. Obama, where the U.S. Court of Appeals for the DC Circuit rejected on standing grounds a 2015 challenge to the National Security Agency's telephony-metadata collection. Kavanaugh wrote separately to say the program passed constitutional muster regardless. . . . Kavanaugh wrote that the NSA's suspicion-less collection of metadata is 'entirely consistent' with the Fourth Amendment and 'fits comfortably within the Supreme Court precedents applying the special needs doctrine.' (The 'special needs' doctrine relates to government actions beyond normal law enforcement practice, such as at borders or drunk-driving roadblocks.)." Klayman is indeed a bad opinion that has given me great pause. But it is just one. And, as Ilya notes, "this was a two-page opinion as part of an emergency appeal," one that was likely written in a 24-hour time frame. The offending passage consists of a couple (very bad) sentences.

More importantly, it is a decision "that has likely been superseded by Carpenter v. United States, where the Supreme Court this past term ruled that police need a warrant to access cellphone location data." Ilya notes a recent piece by Sharon Bradford Franklin on Carpenter and the End of Bulk Surveillance of Americans. Franklin served as executive director of the Privacy and Civil Liberties Oversight Board, an independent federal agency that reviews counterterrorism programs to ensure that they include appropriate safeguards for privacy and civil liberties. (And she happens to be a law school classmate and friend of Brett Kavanaugh's.) As she reads Carpenter,

it provides a clear answer to the constitutionality question: Under Carpenter, the third-party doctrine does not extend to the type of collection conducted under the former Section 215 program, and that program would violate the Fourth Amendment. The bulk collection of call detail records, which show over time who calls whom and when, exposing intimate personal details and patterns of association, creates the same privacy risks as the cell site location information that is protected by the Fourth Amendment under Carpenter. . . .

Further, Carpenter puts to rest a second aspect of the third-party doctrine, namely the bright-line distinction between the contents of communications and metadata. . . . Cell site location information, like telephone calling records, is a type of metadata. Although it did not explicitly say so, the Carpenter court recognized that metadata at scale implicates protected privacy interests, noting that CSLI provides "a detailed chronicle of a person's physical presence compiled every day, every moment, over several years."

I am hopeful that, when he is a justice, Brett Kavanaugh will see things the same way, notwithstanding the sentence or two he wrote to the contrary in Klayman. At any rate, this is a matter that should be explored in his nomination hearing.

My final–and bigger–concern has been Kavanaugh's reluctance to use the label "originalist" to describe himself. This goes to criterion (a) above. Nonoriginalists like Eric Posner have also noticed this (see Is Brett Kavanaugh an Originalist?). On the other hand, he has not only written originalist opinions–for example in Heller 2–but his description of his own approach, which he has called "constitutional textualism" is indistinguishable from originalism. Indeed, the approach he has described is original public meaning originalism–(the very best kind of originalism!).

I can appreciate why he might have avoided the label "originalism" before the label became cool. Once upon a time, I avoided the label "libertarian" in favor of "classical liberal," which I soon came to regret as a mistake. What will matter a great deal to me is that he affirms at his hearings–readily and without apology–that he is a public meaning originalist. And, having investigated his record since his nomination, I am now confident that he will.

Unlike every other Republican Supreme Court nominee after Robert Bork and before Neil Gorsuch, Brett Kavanaugh has a record of commitment as a judge and lecturer to originalism in substance if not in name. I have no doubt that, when he publicly uses the label "originalism," he will have a better idea than most of what that label stands for. They say nomination hearings are meaningless rituals, and I tend to agree. But such a public affirmation that he is an originalist will be highly meaningful.

Ilya concludes:

In sum, libertarians aren't going to agree with Kavanaugh on everything—we don't agree on everything ourselves!—but he's a big step forward for constitutional liberty. An exhaustive treatment of his record is beyond the scope of this essay, but suffice it to say that while questions about the Fourth Amendment, privacy, and criminal justice may be worth pursuing at his confirmation hearings, they're no reason to oppose his nomination.

This is pretty much where I am as well. The more I have studied Brett Kavanaugh's record, the more I have warmed to this pick. Having three committed original public meaning originalists on the Court–a majority of the conservative majority–promises to transform the practice of law at the Supreme Court and create a ripple effect in inferior courts. This, in turn, may even lead law schools to accept they they have a responsibility to teach originalism to their students.

Stranger things have happened.

Advertisement

NEXT: Triggered by Trigger Warnings

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Popehat’s Ken White wrote a post suggesting he’s pretty good on 1A, too. So that’s nice.

    1. Scalia was much better on 1A. And even libertarian, in that no right can possibly be absolute if they are in conflict, by the very definition of unalienable. How can we resolve a conflict between any two rights, when they are BOTH absolute? Scalia knew, Kavanaugh may not, nor may Gorsuch.

      Individual liberty can be such a bitch,

    2. Scalia was much better on 1A. And even libertarian, in that no right can possibly be absolute if they are in conflict, by the very definition of unalienable. How can we resolve a conflict between any two rights, when they are BOTH absolute? Scalia knew, Kavanaugh may not, nor may Gorsuch.

      Individual liberty can be such a bitch,

      1. The normal way libertarians avoid two different rights conflicting, is by refusing to view “positive rights” as real rights. Negative rights never fall into conflict, because they are merely rights that other people not interfere with you in particular ways. Positive rights generate conflicts because they obligate actions on the part of other people, and people have finite capacities.

        Positive rights are to moral theory what division by zero is to math: Tempting, but they make any theory that permits them into an incoherent mess.

        1. That’s why David Nolan replaced NAP (or added to it) in 1969.
          And the defimntions are kinda wacky. Life and Gun Rights are both negative rights, and they can OBVIOUSLY conflict.

          The Rothbardians (authoritarians) use that as a lame excuse to justify the violation of rights that refuse to support. Like, oh, equal treatment under the law. (oops)

          Hence, their sordid background in racism and current homophobia.

          1. “Life and Gun Rights are both negative rights, and they can OBVIOUSLY conflict.”

            No they can’t.

            1. Severe denial is a mental affliction.

    3. Scalia was much better on 1A. And even libertarian, in that no right can possibly be absolute if they are in conflict, by the very definition of unalienable. How can we resolve a conflict between any two rights, when they are BOTH absolute? Scalia knew, Kavanaugh may not, nor may Gorsuch.

      Individual liberty can be such a bitch,

    4. Scalia was much better on 1A. And even libertarian, in that no right can possibly be absolute if they are in conflict, by the very definition of unalienable. How can we resolve a conflict between any two rights, when they are BOTH absolute? Scalia knew, Kavanaugh may not, nor may Gorsuch.

      Individual liberty can be such a bitch,

    5. Scalia was much better on 1A. And even libertarian, in that no right can possibly be absolute if they are in conflict, by the very definition of unalienable. How can we resolve a conflict between any two rights, when they are BOTH absolute? Scalia knew, Kavanaugh may not, nor may Gorsuch.

      Individual liberty can be such a bitch,

    6. Scalia was much better on 1A. And even libertarian, in that no right can possibly be absolute if they are in conflict, by the very definition of unalienable. How can we resolve a conflict between any two rights, when they are BOTH absolute? Scalia knew, Kavanaugh may not, nor may Gorsuch.

      Individual liberty can be such a bitch,

        1. I’ll grant, in this case, that the use of all caps was perfectly appropriate.

          1. I neither seek nor require your approval.
            We libertarians call it … individual liberty.

  2. Instead, I look for a judge who (a) will seek to follow the original meaning of the text of the Constitution,

    Starting WHEN? Original meaning includes the “wall of separation between church and state,” per Jefferson’s letter to Danbury Baptists,

    “But those words never appear in the Constitution!”

    “Wny would they have to? That’s what the words MEANT AT THE TIME — per the first 3 Presidents and the UNANIMOUS US Senate.
    That’s who I have. You have NOBODY.”

    The Treaty of Tripoli was negotiated under Washington and signed by Adams, after UNANIMOUS ratification by the Senate … who KNEW they were voting on Law of the Land.

    …the United States is not founded, in any sense, on the Christian religion.”

    History lesson:
    1) The (un) Holy Inquisition was committing moral atrocities until roughly our Civil War — the state punished “crimes” judged by a RELIGIOUS Tribunal … like a life sentence to Galileo for DARING to say the earth revolved around the sun.
    2) This caused Catholics to be publicly beaten in New England (Murray Rothbard)
    3) We had suffered our own Salem Witchcraft trials.
    4) Many cane to the New World to ESCAPE religious persecution.

    The Christian Taliban leadership says Article 11 is a “bad translation” — which means the Senate ratified it in ARABIC!!!!! Yes, THAT crazy.

    “Originalism” was ALSO opposed by JEFFERSON! .

    1. Part 2/2

      “Originalism” was opposed buy Jefferson. Strongly. And (presumably) by Ayn Rand

      “Consent of the governed is a core principle”, to both Rand and Jefferson. Jefferson was Natural Law, Rand applied “The moral is the chosen” to a society.

      “The earth belongs to the living,” was Jefferson’s reason to oppose the ‘perpetual constitution’ sought by the Constitutional Convention. That cannot be, he wrote to Madison.

      No generation may bind a later generation to a constitution … or to debt … or to any law. Consent of the governed would then be consent of the dead. DUH.

      True liberty, consent of the governed, requires …. consent of the governed! The Articles had to be replaced after 19 years, which Jefferson thought appropriate to “consent of the governed.”

      He argued for a new Constitutional Convention every 19 years or so. That need not mean changing anything at all … but it must all be on the table.

      So to Jefferson — and any principled libertarian — “Originalism” is AUTHORITARIAN. Just as a “living constitution’ on the left. Like everywhere else, left and right BOTH seek to impose THEIR will … by state power. Full stop.

      His conclusion, letter to Madison from Paris

      Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.

    2. The Treaty of Tripoli was negotiated under Washington and signed by Adams, after UNANIMOUS ratification by the Senate … who KNEW they were voting on Law of the Land.

      …the United States is not founded, in any sense, on the Christian religion.”

      Which is nice and all, but doesn’t mean what you pretend to think it means.

      1. Which is nice, but perhaps even more lame than the “bad translation” evasion. Hard to tell, since mere denial is not an argument. That’s why I provide supported arguments, with sourced data. Feel free to try again, though.

        Next time include some substance on what you WANT it to mean, and why you defend the (un)Holy Inquisition, Galileo’s life sentence for “blasphemy” and the Salem Witchcraft Trials. Also why you deny that so many came to the New World to escape religious persecution. I eagerly await your reply!

        1. and why you defend the (un)Holy Inquisition, Galileo’s life sentence for “blasphemy” and the Salem Witchcraft Trials. Also why you deny that so many came to the New World to escape religious persecution. I eagerly await your reply!

          My reply is that you’re a delusional nut, since I didn’t say any of those things.

          (As for what the Treaty means, it says it very clearly: there is no inherent religious conflict between the U.S. and Muslim nations.)

          1. LAME

            uMy reply is that you’re a delusional nut, since I didn’t say any of those things.

            I never said you did! But you defended them all

            Now you go off the rails ENTIRELY!

            (As for what the Treaty means, it says it very clearly: there is no inherent religious conflict between the U.S. and Muslim nations.)

            LAMER … UNRELATED ….
            IT’S A VERY LONG TREATY … 12 Articles + 3 Notes

            Pay attention

            …the United States is not founded, in any sense, on the Christian religion.”

            That’s WHY there is no religious conflict (one reason)
            And our founding has NO bearing on whether or not there is religious conflict — as proven by Donald Trump.

            Called out …

            Which is nice and all, but doesn’t mean what you pretend to think it means.

            FAIL
            DIVERSION

            WE ARE NOT STUPID HERE … YOU DEFENDED A POSITION THAT THE COUNTRY WAS FOUNDED ON THE CHRISTIAN RELIGION.

            Put up or shut up.

            You’re a delusional nut

            (sneer)

            1. WE ARE NOT STUPID HERE

              Well, you’re half right.

              1. Call out an authoritarian and …

                YOU DEFENDED A POSITION THAT THE COUNTRY WAS FOUNDED ON THE CHRISTIAN RELIGION.

                Put up or shut up.

                FAIL

    3. “Originalism” was ALSO opposed by JEFFERSON!

      Come now. Jefferson opposed letting one generation command the next. He wanted each generation to have the opportunity to set the basic law that would govern that generation. So he argued in favor of changing the basic law by democratic means on a regular basis.

      But show me where Jefferson asserted that the written law should not be interpreted and understood the same way it was originally interpreted and understood. And show me where Jefferson said that the judiciary should arrive at a different interpretation from the original one, without any democratic input.

      “Our Constitution . . . intending to establish three departments, co-ordinate and independent that they might check and balance one another, it has given?according to this opinion to one of them alone the right to prescribe rules for the government of others; and to that one, too, which is unelected by and independent of the nation. . . . The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. ? Independence can be trusted nowhere but with the people in mass.” (Letter to Judge Spencer Roane, Sept. 6, 1819)

      Was Jefferson really OK with the judiciary ignoring the original meaning of the constitution?

      1. You are repeating what I said ,.. that you are responding to

        ORIGINALISM IS NOT AN ISSUE, IN TODAY’S SENSE, WITH A NEW CONSTITUTION EVERY 20 YEARS.

        1. ORIGINALISM IS NOT AN ISSUE, IN TODAY’S SENSE, WITH A NEW CONSTITUTION EVERY 20 YEARS.

          But suppose there is insufficient support for a new constitution every 20 years. Are you saying that nevertheless we should not feel constrained to interpret laws as understood by those who passed them, and in this way get around the problem of the dead writing laws for the living? Would it be necessary to first have this approach approved democratically?

          1. But suppose there is insufficient support for a new constitution every 20 years.

            Ummm, then it wouldn’t be adopted, and your point would be moot.
            But the TOPIC is that it has been adopted.

            Are you saying that nevertheless we should not feel constrained to interpret laws as understood by those who passed them,

            I said that was irrelevant, in today’s sense, since the Constitution would be 1-20 years old.
            Ummm, most of the delegates would still be alive!

            Would it be necessary to first have this approach approved democratically?

            It would have already been done so … else the Constitution would not expire every 20 years

            “Democratically” is a poor word, since it’s most often applied to elections, not the constitution, unless the Constitution says it must be “ratified” by a popular vote.

            1. Ummm, then it wouldn’t be adopted, and your point would be moot.
              But the TOPIC is that it has been adopted.

              You are proposing a 20 year constitution. If this is not adopted (which it won’t be) then should laws be interpreted as they were understood by those who passed them (i.e. in an originalist way) or not?

              “Democratically” is a poor word, since it’s most often applied to elections, not the constitution, unless the Constitution says it must be “ratified” by a popular vote.

              If the constitution is not interpreted as it was originally understood then who determines the new meaning? Should it be up to the federal judiciary or should the people have a say in the matter?

              1. (bodface in self-defense of a lyin’ stalker)
                TRUE psychos CANNOT admit they fucked up … and simply repeat the same lies.

                You are proposing a 20 year constitution.

                That was Jefferson. Thomas. Author of the Declaration.

                If this is not adopted (which it won’t be)

                ONE MORE TIME FOR THE MORALLY IMPAIRED
                MY EXAMPLE IS HOW IT WOULD WORK … IF IT WAS ADOPTED

                Why would the people refuse to …. UNdelegate powers?

                I share some of the blame, and should have noticed that this is beyond your intellect also, not just your integrity … as you stalked me down the entire page with the same nonsense

  3. As a non-lawyer, one thing (out of many) I’ve always appreciated about this blog since its inception was how well, and clearly, Eugene was able to articulate both his legal opinion (given his interpretation of what the law IS) and his policy preferences, so that the reader was able to learn both without confusing the two.

    I believe Ilya (and others) often do a good job of it as well. Ilys especially did an excellent job with this on the topic of legalizing gay marriage, and even went one step FURTHER: he tried to think up a legitimate legal opinion that would RESULT in his policy preferences… and succeeded! (In my humble, non-lawyer opinion, even though Ilya’s approach wasn’t utilized to bring about our preferred outcome).

    But I might be misunderstanding him here; or maybe not.

    ILYA: are you saying; that you’d PREFER him to ALWAYS vote on the side of legitimacy?

    For example, I don’t know your LEGAL opinion on R v W, but let’s pretend for a sec that you found the court’s ruling to be completely illegitimate… but like the result.

    Would you WANT him to vote to overturn it?

    I know this really doesn’t matter, but I’m curious.

    1. I’m not Ilya, but Roe v Wade is simple. Unalienable rights. The fetal child’s unalienable right to Life is precisely equal to the woman’s unalienable right to Liberty, by definition. It’s the elementary principle of conflicting rights. No free speech right to yell fire in a crowded theater is an actual SCOTUS opinion.

      In the vernacular, “Your right to swing your fist ends at the tip of my nose.” Here, the nose tip is the boundary that best defends two conflicting rights equally. How would YOU resolve a conflict between two rights when they are both absolute? (which EXPLODES some brains)

      Only SCOTUS may resolve the conflict, as a check on conflicts created by the other two branches. But they are obliged to defend BOTH rights … equally,

      In Roe v Wade — now US v Casey – the court ruled that viability of the fetus was the dividing line How can a fetus deny or disparage the rights of another, if it cannot survive on its own?

      Sadly, a VALID pro-life defense of the fetal child does not exist. I tried to change that, twice, on the LP platform committee. If the fetus is viable, a live birth MUST be attempted (exceptions for life/safety of the women). The woman DOES have a right to “expel” at any time, but there can be no separate right to kill a fetus capable of living on its own (including artificial support).

      No, judges do not “invent” rights, but they RECOGNIZE rights for about 500 years now. And clearly what the Founders intended with 9A.

      1. No, judges do not “invent” rights, but they RECOGNIZE rights for about 500 years now. And clearly what the Founders intended with 9A.

        Do you assert that the constitutional scheme that the founders had in mind was a system under which the federal judiciary was tasked with protecting rights but not told what those rights were?

        If so, then is there any limit on the authority of the federal courts to recognize new rights? Were the civil war amendments necessary or could the federal courts simply have abolished slavery (13A), guaranteed due process and equal protection (14A) and the right to vote regardless of race (15A)? And while they were at it, the court could have granted the right to vote regardless of sex (19A) or age if at least 18 (26A), repealed prohibition (21A), given the presidential vote to D.C. (23A), and eliminated the poll tax (24A)?

        What criteria was it intended that the courts use in recognizing these rights?

        Would you say that while the purpose of the Bill of Rights was to limit the federal government, the purpose of the ninth amendment was to confer unlimited federal judicial power to create new “rights”?

        1. No, judges do not “invent” rights, but they RECOGNIZE rights for about 500 years now. And clearly what the Founders intended with 9A.

          Do you assert that the constitutional scheme that the founders had in mind was a system under which the federal judiciary was tasked with protecting rights but not told what those rights were?

          It’s not an assertion. It’s the Supreme Law of the Land. They both protect rights and interpret WHAT is being protected. Again, 9th Amendment.

          If so, then is there any limit on the authority of the federal courts to recognize new rights?

          Checks and Balances. The ruling can be “checked” by … amending the Constitution.

          Were the civil war amendments necessary or could the federal courts simply have abolished slavery

          1) Slavery was authorized in the Constitution, requiring amendments to change that.
          2) You MAY fail to appreciate that slavery had existed for all of human history. It was like changing the definition of “up.”

          What criteria was it intended that the courts use in recognizing these rights?

          The court. Self-evident.

          Cont’d

          1. Part 2/2

            Would you say that while the purpose of the Bill of Rights was to limit the federal government, the purpose of the ninth amendment was to confer unlimited federal judicial power to create new “rights”?

            That’s self-evident. No contradiction. And your same false assumption, that governments “create” rights. They DEFEND rights. And, again, NO right has EVER been defended until it was acknowledged as such … by a judge or tribunal. Elementary history.

            You need to read and ponder the 9th Amendment. There are rights, never enumerated, which no level of government may deny or disparage. Liberty and Pursuit of Happiness are not defined either.
            So what are all those unalienable rights, with are never stated?
            It’s been several hundred years since Marbury v Madison, and not even an ATTEMPT to amend the Constitution. Checks and balances. It’s in there.
            Judges do not “invent” rights, a lame excuse dating to southern racists, the KKK, state’s rights (instead of federalism) and Ron Paul (and similar authoritarians).

            1. It’s not an assertion. It’s the Supreme Law of the Land.

              If the founders wanted to establish constitutional right X why wouldn’t they establish it as they did with the first eight amendments? Did they feel that they weren’t up to the task and that only the federal judiciary could do the job properly?

              Checks and Balances. The ruling can be “checked” by … amending the Constitution.

              Of course, amending the constitution is extraordinarily difficult, making it almost impossible to reverse a Supreme Court constitutional interpretation via that method. So you think that the intent of the founders was to give a free hand to the Supreme Court to recognize any new rights that it chooses, and that this can only be restrained by a contrary constitutional amendment?

              Slavery was authorized in the Constitution, requiring amendments to change that.

              Wait, are you citing originalism? Are you saying that the correct interpretation of the current constitution is that the court is limited to the original understanding of the founders and ratifiers? And as far as the other rights I mentioned, a constitutional amendment wasn’t necessary since the court could have simply declared them as rights?

              The court. Self-evident.

              The question was not who makes the ruling. Of course it is the court. The question is this: how should the court go about determining that X should be a new right and Y should not? Should they take public opinion into consideration?

              1. It’s not an assertion. It’s the Supreme Law of the Land.

                If the founders wanted to establish constitutional right X

                They did NOT want to, so they didn’t.????????????

                It’s really quite simple to a libertarian. Rights are what governments are formed to protect, New threats have always arisen, and always will.

                They feared leaving out a lengthy listing … especially when there’s an easier and foolproof way to assure rights protection … and rights have indeed continued .evolving,.so … they were correct.

                Do you deny Liberty as a fundamental right? What does it include?
                What is included in the Pursuit of Happiness?
                Howzat?

            2. You need to read and ponder the 9th Amendment.

              See this explanation: “The Ninth Amendment was James Madison’s attempt to ensure that the Bill of Rights was not seen as granting to the people of the United States only the specific rights it addressed.”

              Madison said, “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.

              It is clear from its text and from Madison’s statements that the 9A states only a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.

              Madison, in the first Congress, said that if the guarantees of the Bill of Rights would be incorporated in the Constitution, the “independent tribunals of justice . . . will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the Declaration of Rights.” Why did he use the language “expressly stipulated”?

                1. Oh. Finally some self- awareness

                  1. swood later lies, just as massively, regarding John Locke.

                    In this instance, IT WAS MADISON WHO WROTE THE FUCKING NINTH AMENDMENT.
                    Did YOU learn this in high school, like everyone else:

                    The Ninth Amendment was James Madison’s attempt to ensure that the Bill of Rights was not seen as granting to the people of the United States only the specific rights it addressed.

      2. No free speech right to yell fire in a crowded theater is an actual SCOTUS opinion.

        That would be an interesting title for a case. Pretty sure you’re referring to Schenck v. US, in which the Supreme Court upheld a defendant’s criminal conviction for “undermining the war effort” because he had mailed flyers opposing the draft. In dicta, Chief Justice Holmes reasoned that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” But it’s certainly false that the Court ruled that people have no right to yell fire in a crowded theatre.

        That “crowded theater” aside is one of the worst statements ever made in a Supreme Court opinion, Schenck is one of the worst ever written, and the statement is routinely mis-quoted by ignorant people attempting to justify whatever speech restrictions suit their fancy. If* you value your reputation, don’t quote it again.

        * I know, but I needed a laugh, y’all.

        1. That would be an interesting title for a case

          Are there many more rulings that you should have been the deciding vote on?

          1. What? Does this retort make sense to you? I’m sure you thought it was cutting and witty, but I’ve read it about ten times and I just cannot work out what you’re trying to say. Maybe just stick to your usual Tourette’s in bold?

            1. (Boldface ONLY in self-defense … especially if the aggressor is a lying blowhard, so also ridicule.)

              Are there many more rulings that you should have been the deciding vote on?

              What?

              (smirk)

              Does this retort make sense to you?

              Authoritarians, especially on the right, ALWAYS issue LAME denials, when called out. You said

              That “crowded theater” aside is one of the worst statements ever made in a Supreme Court opinion, Schenck is one of the worst ever written

              Next. your
              MASSIVE FUCKING LIE-FUCKUP-ASSAULT deserves its own comment.

              Cont’d

              1. Part 2

                BEHOLD A CYBER-BULLY WHO INVENTS CRAZY BULSHIT TO JUSTIFY HIS ASSAULTS,

                (Boldface ONLY in self-defense of aggression — and to highlight the fuckup)

                and the statement is routinely mis-quoted by ignorant people attempting to justify whatever speech restrictions suit their fancy

                Bend over, to minimize the pain while I JAM the truth.

                ****I USED IT AS AN EXAMPLE OF CONFLICTING RIGHTS

                It’s the elementary principle of conflicting rights. No free speech right to yell fire in a crowded theater is an actual SCOTUS opinion.

                In the vernacular, “Your right to swing your fist ends at the tip of my nose.” Here, the nose tip is the boundary that best defends two conflicting rights equally. How would YOU resolve a conflict between two rights when they are both absolute? (which EXPLODES some brains)

                SEE The Sculptor’s “brain” EXPLODE!

                The Authoritarian Right = The Authoritarian Left.
                That’s why God created libertarians … to wipe them out … and we’re winning.
                Over 60% of Americans would self-define as libertarian (which is neither right nor left).
                This leaves the the thugs snarling and fighting over less than 40% they share.. (which is WHY it’s still shrinklng!!!)

                “Mess with the bull, get the horns”

                (The ABSOLUTE craziest keep bellowing. It’s the ONLY way they can feel manly)

                (sneer)

                1. Have you ever met anyone who agreed with you? Have you ever persuaded anyone who didn’t? I ask because you are–without a doubt–the most obnoxious internet commenter I’ve ever seen. It’s like performance art. It’s almost sublime.

                  The only thing that prevents me from believing that you are an act is that you’re too good. Too convincing. No one could actually perfect such impotent, ignorant, rage by working at it. People don’t live long enough. No, I assume you must be 50 or so, single, unkempt, and infrequently washed. You maybe have a technical degree from some nowhere college and a long forgotten diagnosis from a doctor you didn’t trust. You have too many bumperstickers, your neighbours avoid you, and the local radio DJs shudder every day when they see your number on the switchboard. You’re Ignatius J. Reilly without the intellect. You’re Donald J. Trump without the wealth. You’re a bitter fool and the only person you despise more than everyone else is the inconsequential blowhard who looks back at you in the mirror.

    2. This post is by randy Barnett, quoting Ilya Shapiro, not somin.

  4. I’ve come to the conclusion that the best reason to appoint Judge Kavanaugh to SCOTUS is that it will piss off the Democrats.

    1. So, you have no moral principles, and state it proudly,
      That’s why God invented libertarians. Because Left – Right = Zero.

      1. Strange. I’ve often pondered on whether Democrats have moral principles, or just slogans and memes.

        1. I already assumed you might be a tribal hack.

          Left – Right = Zero
          They both have no more than slogans and memes ,.,, and you’ve admitted your own lack of moral principles.

      2. So, Libertarians = 0? Generally that’s the amount of real policy influence they end up having by opposing everything.

        1. So, Libertarians = 0?

          “So” implies logic. 🙂

          Only asshole libertarians oppose everything. It’s a conflict of values for all 50 years.
          Pro-liberty vs anti-government. Opposite priorities.

          Like Medicaid, Liberty lovers propose a transition back to the private hospital/charity networks that actually did provide universal treatment.

          Gummint haters scream, REPEAL IT, thus shitting on free market OUTCOMES, will of the people and consent of the governed.

          Expanding individual liberty always limits or reduces government.
          Cutting government can have the opposite effect on liberty.
          Priorities.

      3. “That’s why God invented libertarians.”

        He did so purely to entertain the rest of us.

        1. Your “us” is the minority, so who cares?

          Over 60% of Americans SELF-identify with libertarian values, fiscally conservative and socially liberal.

          Left and right are obsolete (as the full spectrum)

          1. “libertarian values” does not equal “libertarians”.

            People who call themselves “Libertarians” are clowns. The Libertarian Part is the new Ringling Brothers.

            1. “libertarian values” does not equal “libertarians”.

              It’s the definition.
              Christian values do not equal Christians?.

              I can see the cause of your ignorance:

              People who call themselves “Libertarians” are clowns. The Libertarian Part is the new Ringling Brothers

              The Party has only a minority of libertarians, who are called Libertarians (capitalized). Lower case (libertarians) are non -party. Like all conservatives are not Republicans, right?

              That covers your ignorance but not your blatant bigotry, Do you believe all “niggers” are potential NBA all-stars, or great tap dancers? How about “Chinks” or “Nips” or ….? (/sarc)

              Now scroll up-page and see I used lower-case.(libertarians)

              Anything else?

  5. Can someone help me understand how an originalist can get from the text of the 4th amendment to gov’t collection of cell phone metadata or cell tower location records being unconstitutional? Or, for that matter, from the text to a protection of an “expectation of privacy” per the Katz decision?

    1. It’s bullshit and confirms a founding principle of libertarianism. From 50 years ago:

      Republicans want government out of your wallet and into your bedroom.
      Democrats want government out of your bedroom and into your wallet.
      ONLY libertarians DEFY government intrusion into BOTH economic and personal issues.

      Apply that here and arch-conservatives will excuse even the most blatant abuses of civil liberties, using the same lame excuse we read here. Because personal rights are “less equal” that economic rights to them. Arch-liberals are exactly the same on economic liberty, which is “less equal” to them..

      So-called “originalism” is actually authoritarian — as Jefferson said during the Constitutional Convention. Instead of “consent of the governed” (also core to Ayn Rand) we have “consent of the dead.” Governance by force, not by right.

      1. So-called “originalism” is actually authoritarian

        Do you distinguish between (a) a written law should be interpreted as it was understood by those who ratified it, and (b) every written law should expire after 20 years? I understand that you support (b). Do you support (a)? Is (a) authoritarian?

        1. So-called “originalism” is actually authoritarian

          Do you distinguish between (a) a written law should be interpreted as it was understood by those who ratified it, and (b) every written law should expire after 20 years?

          That’s what I said.

          I understand that you support (b). Do you support (a)? Is (a) authoritarian?

          That’s what I said. Under the current Constitution. “Consent of the dead”
          And it’s quite authoritarian to rank “interpret” above “consent of the governed” — ruling above consent is authoritarian — which may be a better way to phrase my point, so thanks for asking.

          1. That’s what I said. Under the current Constitution. “Consent of the dead”

            If a law were passed saying that all important decisions were to be taken out of the hands of the voters, you would rightly say that this law was authoritarian. But would you say that it is authoritarian to understand its meaning to be what the drafters or ratifiers meant? How can it be authoritarian to accurately perceive what somebody has said?

            1. That’s what I said. Under the current Constitution. “Consent of the dead”

              If a law were passed saying that all important decisions were to be taken out of the hands of the voters, you would rightly say that this law was authoritarian.

              Unconstitutional. Self-evidently.

              But would you say that it is authoritarian to understand its meaning to be what the drafters or ratifiers meant? How can it be authoritarian to accurately perceive what somebody has said

              “UNDER THE CURRENT CONSTITUTION”
              Why bother quoting me, which makes your lie self-evident and visible?

              Why did you stalk me down the page with different versions of the same ignorance?
              This FEELS like I’m kicking a cripple,

    2. Can someone help me understand how an originalist can get from the text of the 4th amendment to gov’t collection of cell phone metadata or cell tower location records being unconstitutional? Or, for that matter, from the text to a protection of an “expectation of privacy” per the Katz decision?

      Yes. Someone can.

      There was a lot of discussion here and elsewhere of these issues, not to mention that the actual opinions are readily available.

      Start there.

      1. Thanks, but for what it’s worth, chances are good (not certain) that I’ve read the actual opinions. And, I have no idea of what search terms would bring up the discussions relevant to my inquiry.

        To restate: some (not all) originalists claim that the 4th Amendment prevents government collection of cell carrier metadata and/or tower-based location data. I don’t see how this can be based on anything other than a Katz-like abstraction of the 4th Amendment to prevent incursions on “expectations of privacy” regardless whether they are incursions on the “persons, houses, papers, and effects” of the aggrieved. But I don’t see how such an abstraction is consistent with original-public-meaning originalism.

        (I am personally against gov’t warrantless collection of the data in question. But in my current state of ignorance it seems to me that it must be prevented by Congress, not by the Constitution.)

        1. As I recall, Orin Kerr blogged about the case. He knows a thing two about the 4th Amendment, so maybe you could look up those posts.

  6. Okay, Professor Barnett has convinced me. I do not want Judge Kavanaugh on SCOTUS. And by the way, originalism as a label still isn’t cool.

    1. How can you say that about a nominee who was chosen after the most extensive, careful, thorough, thoughtful search in the history of the universe?

  7. ” this is because libertarians–like others–often judge the courts by their results, not how those results are reached.”

    Congratulations: You just validated the attack every living constitutionalist makes against every originalist: That we’re living constitutionalists, too.

    No, actually I DO judge them by how they arrive at their results. A judge who arrives at results you like by dodgy means in one case, is liable to arrive at results you hate in another case by equally dodgy means. And even if he doesn’t, is eroding the rule of law, which is an important restraint on government.

    The Constitution isn’t perfect, but it’s not remotely so bad that we should want judges who will violate it. Even on our own behalf.

    1. You’re both authoritarian. Defending “consent of the dead” — in Jefferson’s own words. Governing by “force not of right.”

      How can any generation bind any later generation to any constitution .. to any law … and to even a penny of debt … without their consent?

      Left and right each try to impose their own view of a Constitution that has no right to even exist. On what basis do you oppose a Constitutional Convention within every generation, requiring any debt to be fully repaid in (say) 20 years,.not rolled over, and no law automatically in effect for longer than 20 years.

      P.S. Where are you empowered to decide what is the proper defense of constitutional rights — Life, the packages included in Liberty and Pursuit of Happiness … and all the many others? You attack the Constitution in the name of the Constitution. On what basis?,

      1. I didn’t defend the Constitution on the basis that it has some theoretical authority to bind a present generation that didn’t consent to it; It obviously, as Lysander Spooner pointed out, does not. Implied consent is no consent at all.

        I defended it on the basis that,

        1. It binds people in the government, who have all sworn to be so bound in order to exercise the power of the government it constituted. THEY are bound, even if we are not. All their claims to power come from the constitution they’ve sworn to uphold, without that constitution they’re just common criminals.

        2. It is good that these people are so bound, much better than if they weren’t.

        The Constitution is not so awful that being without a constitution would be better. The practical alternative to the rule of law isn’t, unfortunately, no rule. It’s lawless rule. The left decry “the dead hand of the past” not because they want to be constrained by the living, but because they don’t want to be constrained. Having tossed the Constitution aside, they don’t mean to replace it with anything but their own whims.

        1. People who swear/affirm to follow the Constitution have a duty to follow it and it is good that they do.

          Okay. Moving past such pablum, we move to the real debate — that the philosophy you disagree with is not the “rule of law” and so forth. This is fictional. Others are constrained in a variety of ways and in practice “originalism” can be less restraining than some alternative. At best it is a wash.

          The Constitution was not “tossed aside.” Plus, there is the problem that even going by original understanding, it was well understood (besides it being reality) that the Constitution will depend on developing reality as the terms of the document was experience over the years.

          This is what Madison, Marshall et. al. repeatedly said.

          1. This is what Madison, Marshall et. al. repeatedly said.

            Jefferson said the exact opposite. Expanding “consent of the governed” he argued — forcefully — that no generation has any right to bind any future generation without their consent … to anything .. not to a constitution .. not to any law ,,, and not to any debt.

        2. I didn’t defend the Constitution on the basis that it has some theoretical authority to bind a present generation that didn’t consent to it;

          You did it here too?

          How can any generation bind any later generation to any constitution .. to any law … and to even a penny of debt … without their consent?

          You evade and divert.

          The Constitution is not so awful that being without a constitution would be better.

          Non-responsive.

      2. You ask on what basis I oppose a constitutional convention each generation. Where have I? On the contrary, I think we’re overdue for a constitutional convention. I personally doubt the product of such a convention would be better, or even as good, as our present Constitution, but of what significance is my judgment on that score? At least it might be fresh enough that anybody who tries to pervert the new one would get shouted down.

        1. I personally doubt the product of such a convention would be better, or even as good, as our present Constitution, but of what significance is my judgment on that score?

          None at all.

          At least it might be fresh enough that anybody who tries to pervert the new one would get shouted down

          It’s about the people “owning” it, committing to it, not your authoritarian priorities.

          1. I must say that a desire that, whatever the Constitution happens to command, the government actually obey it, strikes me as an awfully counter-intuitive “authoritarian priority”.

            1. I must say that a desire that, whatever the Constitution happens to command, the government actually obey it, strikes me as an awfully counter-intuitive “authoritarian priority”.

              True, but that’s not even remotely close to what you actually said..
              I do sincerely appreciate your retraction.

      3. You’re both authoritarian. Defending “consent of the dead” — in Jefferson’s own words. Governing by “force not of right.”

        It it more authoritarian to be stuck with the original meaning or to allow an unelected judiciary to modify that original meaning based on nothing more than their own personal preference?

        Check out the libertarian case for originalism. The basic problem is that if you don’t interpret the constitution the way it was interpreted by those who ratified it, then by what criteria is it to be interpreted and were those criteria ever subjected to democratic scrutiny?

        Granted that Jefferson wanted each generation to have input into the basic law, but short of that is it preferable to allow the judiciary to arrive at an interpretation that we know was not the original meaning (guided by values peculiar to whomever happens to occupy the judiciary at that time) than it is to be stuck with the original meaning?

        1. You’re both authoritarian. Defending “consent of the dead” — in Jefferson’s own words. Governing by “force not of right.”

          It it more authoritarian to be stuck with the original meaning or to allow an unelected judiciary to modify that original meaning based on nothing more than their own personal preference?

          Not remotely relevant to what I said. And then you go off the rails entirely.

          Granted that Jefferson wanted each generation to have input into the basic law,

          A new Constitution and new laws is absolute control … not “input”

          I’ll be generous and assume you don’t understand the issue at all. And the Federalist Society — explicitly — does NOT take policy positions, and not libertarian.

          1. Not remotely relevant to what I said. And then you go off the rails entirely.

            But what is your answer to the question? Is it more authoritarian to be stuck with the original meaning or to allow an unelected judiciary to modify that original meaning based on nothing more than their own personal preference?

            I’ll be generous and assume you don’t understand the issue at all. And the Federalist Society — explicitly — does NOT take policy positions, and not libertarian.

            Are you saying that the Federalist Society piece purporting to make a libertarian case for originalism fails to do that? How does the position of that article differ from a truely libertarian position?

            1. But what is your answer to the question?

              Answered above,

              based on nothing more than their own personal preference?

              That’s their job, despite your sneers all down the page.. And their job is the Supreme Law of the land. Was the Lunar Lander designed by scientists applying their “personal preferences?”

              I’ll be generous and assume you don’t understand the issue at all. And the Federalist Society — explicitly — does NOT take policy positions, and not libertarian.

              Are you saying that

              Every time you open that way, you severely twist and/or evade what I said. They do not take policy positions, stated very explicitly on their web site (Click “FAQ”) And you clearly do not understand Jefferson’s position.

              Libertate yourself. “Original intent” in THAT sense would consist of … asking the delegates! … most of whom would still be alive.

              It’s highly UNLIKELY that the question would even arise. Why would it, if a new Constitution is only 1-19 years in the future?

              1. They do not take policy positions, stated very explicitly on their web site.

                The article was not put forward as the official position of the Federalist Society. It was an opinion piece by Evan Bernick, who is the Assistant Director, Center for Judicial Engagement, of the Institute for Justice. The Federalist Society clearly does not endorse every opinion piece that it runs, and Bernick gives what he calls “compelling reasons for libertarians to embrace originalism.” If you do not find the reasons compelling, why not?

                1. The article was not put forward as the official position of the Federalist Society

                  That’s what I said.

      4. On what basis do you oppose a Constitutional Convention within every generation, requiring any debt to be fully repaid in (say) 20 years,.not rolled over, and no law automatically in effect for longer than 20 years.

        One problem with a constitution that expires after 20 years is that people can’t plan beyond the expiration of the current constitution. Suppose that next year is the 20th year. Nobody knows what kind of political system will be in place the year after next. What is the value of societal stability as you see it? A balanced budget amendment is a different thing.

        1. On what basis do you oppose a Constitutional Convention within every generation, requiring any debt to be fully repaid in (say) 20 years,.not rolled over, and no law automatically in effect for longer than 20 years.

          One problem with a constitution that expires after 20 years is that people can’t plan beyond the expiration of the current constitution.

          Those “people” are government.

          Suppose that next year is the 20th year. Nobody knows what kind of political system will be in place the year after next.

          So? How does that offset you TOTALLY rejecting “consent of the governed?”

          A balanced budget amendment is a different thing.

          A balanced budget amendment (BBA) is stupid beyond belief. ALMOST as crazy as a Flat/Fair Tax.

          A Constitutional Convention would be more open … and could be easily convinced that Washington State’s Constitution is a far better model. Politicians ALWAYS launch costly new programs. THAT is what we must stop, A BBA would require an exception, say a 2/3 override for “emergencies.”

          WA’s constitution limits SPENDING, which creates surpluses, which MUST be set aside in a “rainy day” fund. The spending limit is a a fixed dollar per resident, adjusted for inflation and population WHO COULD OBJECT? It’s AMAZING. Both parties strongly protect those surpluses … to avoid politically dangerous spending cuts or tax increases in a downturn.

          1. So? How does that offset you TOTALLY rejecting “consent of the governed?”

            Well aren’t you a bit cavalier about the consent of the governed under your proposed system? Suppose a law is enacted which is to be in force for 20 years. What about those who were too young to participate in the original vote. Then during those 20 years your proposal fails to provide these people with the option to approve the laws for a significant period. Can their consent be ignored?

            Furthermore, why does a majority vote legitimize laws? What about those who refuse to consent to be bound by the results of the majority vote? Aren’t they illegitimately governed? As John Locke put it, “nothing but the consent of the individual can make anything to be the act of the whole.” Without the overarching consent of all the people who are governed by a certain political entity, it is not permissible for such an entity to force someone to obey its laws.

            So where is your consent of the governed?

            1. Now … exposed as a blatant liar … by his own source! (OMG)

              Suppose a law is enacted which is to be in force for 20 years. What about those who were too young to participate in the original vote.

              Now you’re confusing laws and constitutions. And getting scary, on your way to TOTAL collapse.

              Then during those 20 years your proposal fails to provide these people with the option to approve the laws for a significant period. Can their consent be ignored?

              Umm, it’s ignored ow … and you defend ignoring the consent of THE ENTIRE POPULATION,
              NOW you assume consent must be unanimous — supported by LYING about Locke .. and even link to PROOF that you’re a liar!!!

              Furthermore, why does a majority vote legitimize laws? What about those who refuse to consent to be bound by the results of the majority vote?

              They have the liberty to leave. Or … you NOW say ONE persons can overrule 350 million Americans?

              So where is your consent of the governed?

              So why are you so blatant a lair … about your own source?

              Sec.97. And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation, to every one of that society, to submit to the determination of the majority,

              Anything else?
              Don’t bother, liar..

              1. Sec.97. And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation, to every one of that society, to submit to the determination of the majority,

                Yes, if he consents with the others. But what if he does not consent?

                Sec. 95. MEN being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it.

                Please don’t bother to respond. Your responses are not useful or productive.

                1. (Boldface AGAIN in defense of more aggression ,… and more stupidity.
                  Anyone else SCREECH that our Constitution is not valid because
                  1) None of the delegates were elected unanimously
                  2) The ratifying state governments were not elected unanimously.
                  3) Voters were DENIED any opportunity to provide the UNANIMOUS direct vote, according to John Locke … WHO WAS NOT UNANIMOUSLY ELECTED EITHER or elected by even ONE American)

                  97 comes AFTER 95, goober
                  DEFINES the community he mentions in 95

                  Your alternatIve is to leave. You consent by staying.

                  ***Third repeat: ONE MAN CANNOT OVERRULE 350 MILLION AMERICANS.

                  PLUS … THE DECISIONS ARE MADE BY ELECTED REPRESENTATIVES OR DELEGATES ….. SO YOU SAY … UNLESS EACH AND EVERY DELEGATE IS ELECTED UNANIMOUSLY BY VOTERS … John Locke would kick the ground in rage, saying, “FUCK. we cannot have liberty. Oh well.”

                  (sneer)

                  P.S. The Constitutional Convention delegates were determined by the consent of … NOBODY! So … having made a total fool of yourself on Jefferson … you go on make a BIGGER fool of yourself on Locke. Or …

                  P.P.S. Who tells “the people” that the United States does not exist, which would see you being laughed at by … 350 million people?
                  As your American History teacher commits suicide

                  1. PLUS … THE DECISIONS ARE MADE BY ELECTED REPRESENTATIVES OR DELEGATES ….. SO YOU SAY … UNLESS EACH AND EVERY DELEGATE IS ELECTED UNANIMOUSLY BY VOTERS

                    Just a clarification for the benefit of those who happen to be reading this, and this will be my last response to you. The consent Locke is talking about is consent to be bound by the process, not consent to the victor of the election.

                    1. Your alternatIve is to leave. You consent by staying.

                      Well then everybody who lives under the constitution today, and does not leave, consents to it as well as to the process under which it became law. Problem solved.

  8. Given the amount of disagreement and squabbles among the drafters, then even more so the various state ratification processes, it is really hard to buy originalism claims.

    The Founders themselves had interpretative differences on what the words meant at the time. So how can one claim to be true to the Founders intent (or original meaning) in the face of such ambiguity?

    1. The problem is that when ambiguity is used as an excuse not to be bound by text, suddenly everything becomes “ambiguous”. I think we can be reasonably confident that, for instance, the range of ‘ambiguity’ concerning the interstate commerce clause did not reach as far as Wickard v. Filburn. Or that the N&P clause did not grant Congress a general police power.

      Living constitutionalists don’t reject Originalism because it’s radically indeterminate. They reject it because you can, in fact, clearly settle a lot of questions where they don’t like the answer.

      1. The problem is that it is not an “excuse not to be bound by the text” but a matter of you disagreeing on what the text means. Thus, you provide a narrower version of the Emoluments Clause or the religious clauses of the First Amendment or the Equal Protection Clause, which the government is “bound” by, but I don’t think you are using it as an “excuse.” I think you are wrong.

        Being wrong and making shit up isn’t the same thing. I know when it seems so obvious that the other side seems not just wrong but a liar. But, we always had strong disagreements with one side thinking the other is deluded, which is not the same as being a liar. Madison and Hamilton etc.

        Those who disagree with originalism reject it for a variety of reasons. It being indeterminate is a reason, particularly since a major claim is its restraining qualities. This was not shown to be true in the decades of modern usage. Other views “clearly settle a lot of questions” too. You don’t agree with how they do it. I personally am wary about “clearly” since the Constitution from the very beginning had various shades of gray. A range of questions were left to experience and are a matter of judgment.

        But, there are various questions fairly “clearly” provided.

      2. I think we can be reasonably confident that, for instance, the range of ‘ambiguity’ concerning the interstate commerce clause did not reach as far as Wickard v. Filburn.

        No. Actually, we can’t be “reasonably confident” of that at all. How could we be?

        While the Constitution clearly authorizes government involvement in interstate agricultural markets, it is far from clear what the limits of that authority are. Nor does “original public meaning” help.

        That’s because, as is often the case, the question under consideration was not one that the framers would have anticipated or thought about. Any argument that is based on what the framers “would have thought” is nonsense.

        That’s not to say there is no room for debate over the issue, just that that particular claim has no merit.

  9. I hear ya. I guess my skeptical side sees judges who are originalist/textualist/federalist when that supports their desired outcome … and will use other rationale(s) when it doesn’t. I acknowledge that this effect is in full force on both sides of the ideological spectrum.

    1. Why does your skeptical side see it that way?
      Do you have another side that also reads opinions?
      Do you think e.g., that Scalia’s 1st and 4th amendment decisions reflected his political preferences?; or that Roberts thought Obamacare was a swell solution to the problem of health insurance?

      1. Personally, I think that Roberts thought upholding Obamacare was a swell solution to the problem of not losing his adopted kids.

        1. While I believe that Obama, who spied on candidate Trump and sicced the IRS on his opponents, is perfectly capable of such things, I’ve yet to see some sort of proof on that.

          Got a link to a good think piece with some evidence, and I ask with all sincerity, despite actual proof furthering along my general misanthropy.

          1. Eh, I just find it a more plausible explanation for his change of heart than the supposed legal reasoning he gave.

            1. I just think he didn’t want to go down in history as some sort of Chief Justice Taney-like boogie-man to the Left who undid a law passed by a popularly elected president. The Atlantic/HuffPo/Esquire pieces almost write themselves in this case.

              What’s always put that record scratch sound on the movie sound track here for me on this issue, is that at the time, there was *wink* *wink* *nudge* *nudge* public statements from senior Democrat politicans, notably Nancy Pelosi, that Roberts would come around to see their side on this issue and vote to uphold it….their only evidence being that some mentor to Roberts had done the same thing. Robert’s may have won out in end the long game he plays, though, with the saving construction that he used.

            2. IOW, you made it up. Like pretty much everything else you believe to be true.

  10. Right-wing law professor endorses right-wing judicial nominee.

    With the usual ‘I’m not a right-winger’ masquerade.

  11. Right-wing law professor endorses right-wing judicial nominee.

    With the usual ‘I’m not a right-winger’ masquerade.

    1. And yet you endorse leftists who hate the Constitution, and America.

      1. That was shameful. Libertarians are neither right nor left. Conservatards are those who assume everyone must be either liberal or conservative, which has been obsolete for half a century. ONLY a liberal would EVER disagree with them. Who also, of course, hates the Constitution \nd America. Because tribal bigotry,

        Libertarians are now over 60% of the population. That leaves less than 40% for the left and right combined, and still shrinking. Your time has expired

        1. Rev. Arthur is not a libertarian. I suspect you are not either.

          1. (lol)
            Anyone who describes himself as “ActualRightWing” is obviously not qualified to define libertarians … especially with your blatant tribal bigotry.

            Here are my rather solid libertarian creds. Show me yours

            P.S. Being VERY conservative is NOT libertarian,

  12. Constitutional libertarians do NOT judge decisions by their results.

    1. How would you know, since libertarians are explicitly and intentionally NOT “RightWing.” and not “LeftWing.” Because Left – Right = Zero.

      1. What percentage of so called libertarians support laws forcing bakers to make “wedding” cakes for sexual deviants?

        1. What percentage of so called libertarians support laws forcing bakers to make “wedding” cakes for sexual deviants?

          You just proved me right. By lying about the issue. And again revealing bigotry

          The issue is whether a “special exemption” from public accomodation laws should be granted, based solely on religion … under a Constitution that guarantees Separation.

          Having corrected your error, my turn. Does your misinformation mean you support Crony Christianity?
          If so, how do you justify your rejection of equal rights?

          1. Shorter Hiln…”I reject reality and replace it with my own”

            1. You do a pretty good job of that yourself. Obama spied on the Trump campaign? Sicced the IRS on his political enemies?

              Fox News bullshit.

            2. Shorter Hiln…”I reject reality and replace it with my own”

              EVASION. DISHONEST

              Why should there be a special exemption in public accommodation laws … for ONLY some religious … under a Constitution that guarantees Separation?

              And why should that exemption deny “equal treatment under the law” to a single class of people … in violation of the 14th Amendment?

              Were you “triggered” that I blew your cover? Or ignorant of the issue?

            3. Have you ever been on a forum that discusses physics and run into one of the nuts convinced he has discovered something revolutionary that physicists just refuse to grasp? That’s Hihn.

              1. (boldface in defense of an unprovoked verbal assault, i.e. aggression)

                Have you ever been in a forum on individual liberty, where an authoritarian launches an unprovoked assault — called shooting the messenger — when he disagrees with the message, but is incompetent to deal with it? That’s Careless (his/her handle), and so many others on the Authoritarian Right and Left.

                These are the simple question he REFUSES to deal with

                Why should there be a special exemption in public accommodation laws … for ONLY some religious … under a Constitution that guarantees Separation?

                And why should that exemption deny “equal treatment under the law” to a single class of people … in violation of the 14th Amendment?

                Is there anyone else who says these are a false reality invented by me:
                The 14th Amendment?
                Equal rights?
                Separation?

                (sneer)

                1. And like those loons, you’re screaming in bold and all caps. You’re really convincing people.

                  1. Do not DARE tell me how you will allow me to defend from your bat-shit crazy, unprovoked assault.

                    COWARDLY EVASION

                    FOURTH REQUEST

                    Why should there be a special exemption in public accommodation laws … for ONLY some religious … under a Constitution that guarantees Separation?

                    And why should that exemption deny “equal treatment under the law” to a single class of people … in violation of the 14th Amendment?

                    (posted in defense of aggression)

                2. Again, Hihn, reply to what people say, not to the voices in your head. I didn’t refuse to answer any of those, I simply described you. I wasn’t engaging with your argument at all. There’s no point, as anyone who has experience with your lunacy knows.

                  1. (again in self-defense of aggression by a PROVEN cyber-bully)

                    I didn’t refuse to answer any of those, I simply described you.

                    THAT’S THE SAME THING, GOOBER!

                    Again, Hihn, reply to what people say,

                    My reply was to call out what you said as a lie … and jam truth up your pathetic ass

                    Have you ever been on a forum that discusses physics and run into one of the nuts convinced he has discovered something revolutionary that physicists just refuse to grasp? That’s Hihn.

                    Is there anyone else who says these are a false reality invented by me:
                    The 14th Amendment?
                    Equal rights?
                    Separation?

                    *****REPLY TO WHAT *i* SAID. YOU SELF-RIGHTEOUS HYPOCRITE

                    Why should there be a special exemption in public accommodation laws … for ONLY some religious … under a Constitution that guarantees Separation?

                    And why should that exemption deny “equal treatment under the law” to a single class of people … in violation of the 14th Amendment?

                    His is the mentality of the Christian Taliban. The militant self-righteous has a GOD=GIVEN RIGHT to launch unprovoked assault, for any reason at ll, and no reason at all … and if called our as a liar, NO COURAGE of NO CONVICTIONS. Because righteous!

  13. (again in self-defense of aggression by a PROVEN cyber-bully)

    I didn’t refuse to answer any of those, I simply described you.

    THAT’S THE SAME THING, GOOBER!

    Again, Hihn, reply to what people say,

    My reply was to call out what you said as a lie … and jam truth up your pathetic ass

    Have you ever been on a forum that discusses physics and run into one of the nuts convinced he has discovered something revolutionary that physicists just refuse to grasp? That’s Hihn.

    Is there anyone else who says these are a false reality invented by me:
    The 14th Amendment?
    Equal rights?
    Separation?

    *****REPLY TO WHAT *i* SAID. YOU SELF-RIGHTEOUS HYPOCRITE

    Why should there be a special exemption in public accommodation laws … for ONLY some religious … under a Constitution that guarantees Separation?

    And why should that exemption deny “equal treatment under the law” to a single class of people … in violation of the 14th Amendment?

    His is the mentality of the Christian Taliban. The militant self-righteous has a GOD=GIVEN RIGHT to launch unprovoked assault, for any reason at ll, and no reason at all … and if called our as a liar, NO COURAGE of NO CONVICTIONS. Because righteous!

Please to post comments

Comments are closed.