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Is Originalism a Theory? Is Living Constitutionalism?

Legal scholar Eric Segall argues originalism doesn't qualify as a constitutional theory because originalists disagree on too many things. His case is overstated. But if it's correct, the same criticism applies to living constitutionalism.

Originalists and living constitutionalists have been hammering away at each other for decades. But, up until recently, most living constitutionalists at least agreed that originalism qualifies as a theory of constitutional interpretation, even if a bad one. In an interesting recent blog post, however, legal scholar Eric Segall - author of a notable new book criticizing originalism - claims that originalism should not be considered a theory. Why not? Because originalists disagree on too many issues among themselves:

As I've been giving talks at various law schools discussing my new book "Originalism as Faith," one common reaction is great surprise that Originalism today refers to many different theories of constitutional interpretation that have very little in common with each other. When judges and law professors self-identify as "Originalists," there is no longer any serious metric or common definition to understand how they would approach hard constitutional cases.


Professor Michael Paulsen, a noted national scholar and Originalist, believes that originalism must be exercised with strong deference to the decisions of non-judicial political actors....

Originalists like Randy Barnett, Ilya Somin, Ilya Shapiro, Jack Balkin, and Evan Bernick all reject substantial deference when it comes to originalist approaches to constitutional interpretation....

Some Originalists, such as Professors Will Baude and Steve Sachs, think Originalism is already our law. Most other originalists, however, such as [Randy] Barnett and Paulsen, argue that their own originalism theories are mostly normative, not descriptive....

It seems clear that, not only do originalists disagree with each other about whether originalism is normative, descriptive, or something in between, but some originalist scholars aren't sure themselves whether the theory is meant to describe what judges already do or what they ought to do.

Segall is right that originalists disagree amongst themselves on many issues. His list of these is not exhaustive. For example, originalists also disagree about whether the justification for originalism is intrinsic or instrumental, and whether the original meaning of the text should be understood in accordance with ordinary or expert contemporary understandings of the words.

At the same time, however, Segall is wrong to deny there are important areas of agreement among different types of originalists. As he himself notes, his originalist critics "say most Originalists agree with [Larry] Solum that the original public meaning of the Constitution's text is fixed at the time of enactment and that meaning ought to constrain judges." Segall complains that this doesn't provide sufficient indication of how originalists would resolve "hard cases." But even if a methodology does not by itself settle all disputes about hard cases, it is still significant, because it provides a road map for how to go about resolving these issues. In truth, no constitutional theory can resolve cases by itself. Such resolution also requires understanding of relevant factual evidence, institutional constraints, and perhaps other factors, as well. For example, in my view, originalist methodology justifies striking down sex-discriminatory laws that most would have considered constitutional in 1868, because we now have better factual evidence on the capabilities of women. Much (though not all) of the disagreement among originalists turns on these kinds of issues.

As originalist legal thought has developed, internal disagreements among originalists have clearly grown. But that does not mean there is no longer any significant common ground among them. To use an admittedly imperfect analogy: over time, many internal disagreements have arisen between different types of Christians. They disagree amongst themselves on numerous theological questions, and also on practical moral and political issues, such as abortion and the death penalty. But there are still significant commonalities among Christians that separate them from adherents of other religions (and from atheists and agnostics). For example, Christians overwhelmingly agree on the crucial importance of Jesus Christ (even while differing on its exact nature), and on the idea that the Old and New Testaments contain some sort of divinely inspired moral guidance. Similarly, originalists agree on the importance of an unchanging original meaning of the Constitution, even as they differ greatly on exactly what that meaning is, and how courts (and others) should apply it.

Moreover, there is more agreement about particular cases among originalists than Segall lets on. For example, there is widespread agreement among originalists that the original meaning sets tighter limits on the scope of federal power relative to the states than is currently the case under post-New Deal Supreme precedent, that the Constitution provides substantially greater protection for property rights than currently exists, and that the Second Amendment includes a relatively robust individual right to bear arms.

In sum, despite extensive internal disagreement, most originalists do agree on some important propositions. And originalism would still qualify as a theory even if there was no broad consensus on case outcomes among its advocates.

If disagreement on various theoretical issues and case outcomes does disqualify originalism from being a theory, the same applies to living constitutionalism. Like originalists, living constitutionalists also disagree among themselves on basic theoretical issues, on the extent to which courts should defer to the other branches of government, and on case outcomes. For example, living-constitutionalist opinion on judicial deference ranges from those who would do away with binding judicial review almost entirely (e.g. - Mark Tushnet and Larry Kramer) to those who advocate more robust judicial scrutiny of many types of legislation than exists today (e.g. - the late Ronald Dworkin). On basic theoretical premises, living constitutionalists disagree even more than originalists do. For example, there are huge differences between John Hart Ely's "representation-reinforcement" theory, David Strauss' "common law constitutionalism," Ronald Dworkin's moral approach to constitutional interpretation, and Bruce Ackerman's theory of "constitutional moments."

Segall suggests that living constitutionalism has more of a common core than originalism because "so-called living constitutionalists, such as Professors Philip Bobbit, Mike Dorf, Dick Fallon, and Larry Tribe, who argue for a pluralistic method of constitutional interpretation, are quite clearly advocating an approach they believe is both normative and descriptive. They argue that judges use well-recognized factors such as text, history, political practices, non-ratification era history, and evaluations of consequences to decide cases. In other words, they have a theory, it is well-thought out, and many non-originalists embrace it." In Segall's view, "[t]he same simply can't be said about originalism today."

These four scholars, of course, do not exhaust the range of living-constitution theories. Far from it. Moreover, while their theories are "both normative and descriptive" in the sense that they all believe that a "pluralistic" approach to interpretation is justified and that many real-world judges use a variety of methods, the scholars in question disagree among themselves about both specific constitutional issues, and how to weigh different modes of interpretation against each other when they conflict. They also, of course, all argue that the Supreme Court has gotten many important issues wrong and that the justices often use improper interpretive methodology, despite the fact that they in some sense make use of "pluralistic" interpretation. In that sense, their theories are not fully descriptive.

Despite these criticisms, there are two important kernels of truth in Segall's analysis. First, in many situations, it may make more sense to focus on specific originalist and living constitutionalist theories than on originalism or living constitutionalism generally. The specific theories provide more determinate guidance than the more general one and are often what is really at the heart of disputes over particular legal doctrines.

Second the enormous diversity of both originalist and living-constitutionalist legal thought is a sign that constitutional theory remains a relatively immature field of study. We have far less agreement among experts than in more developed academic disciplines - not just "hard" sciences like physics, but even social sciences such as economics or political science. The same point applies to comparisons between constitutional law and at least some other fields in the legal academy, such as property, torts, or contracts, where there is greater consensus on what qualifies as a good argument and how competing views should be assessed.

This suggests we are still far from achieving the One True Constitutional Theory (assuming such a thing is even possible), and we should not be too wedded to our existing ideas. We should be on the lookout for ways to improve theory (including potentially radical revisions), and for doctrinal conclusions that can be justified from the standpoint of multiple theoretical perspectives, not just one. The degree of uncertainty in constitutional theory counsels against putting too many eggs in a single basket.

I tried to find some overlapping agreement on an important constitutional issue in my book on the Kelo case and constitutional property rights, where I explained how tighter limitations on takings are justifed on the basis of leading versions of both originalism and living constitutionalism. And I recognize that my instrumentalist approach to defending originalism implies that the latter theory might well eventually be superseded by something better, and that it may not be the right approach to all types of constitutions even now. Obviously, there is plenty of room for improvement over my efforts on both of these fronts.

UPDATE: I have edited the quotation from Eric Segall's post to conform to a change Eric himself made in his post.

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  • James Pollock||

    A key difference is that originalism proponents always* treat originalism as a single entity, whereas living constitution proponents usually treat living constitutionalism as a related group of theories.

    *as best as I can tell. YMMV.

  • Brightly||

    If I understand what you are trying to say, it sort of makes sense.

    Originalists are trying to converge on something, Loose Constructionists really aren't.

  • DjDiverDan||

    Can anyone articulate a coherent description of living constitutionalism, other than "we will interpret the constitution in any way necessary to reach our desired result, and attribute the need to depart from textual meaning or historical meaning to changed circumstances"? Because that sure doesn't sound like a theory to me.

  • bernard11||

    Can anyone articulate a description of originalism other than, "We are going to make up some history, based on our 8th grade history class, and pretend that it tells us what the Constitution means?"

    Since originalists can't seem to provide a clear explanation of exactly how their supposed method works, I'd say it's useless, except as an excuse for conservative decisions.

    Is it a "theory?" Who cares? There are lots of theories of all sorts of things. Some make sense. Some are ridiculous.

  • Brett Bellmore||

    Sure: "We're going to interpret the Constitution just like we would any old document that we wanted to know the meaning of, and if it turns out it means something we don't like, we'll either live with it or amend it."

  • EscherEnigma||

    You should re-read Somin's article. "Originalism" includes "what original intent would have been if they had intended what I want them to intend rather then what they did intend" now.

  • Oli||

    Theories are never ridiculous. That would be hypotheses. Theories are falsifiable.

    But I guess we're all talking about hypotheses here anyway, so you may ignore me.

  • Rev. Arthur L. Kirkland||

    A number of law professors from America's strongest schools do so regularly. Someone who consumes legal developments at a right-wing blog fervently trying to push originalism from the fringe into the mainstream might not recognize this. Try Balkinization.

  • Jeff_Kleppe||

    "You do what you think is right and let the law catch up", right, Rev?

  • Brett Bellmore||

    Try Balkinization, where Jack Balkin is desperately attempting to deprive the term "originalism" of all meaning, by claiming that living constitutionalism IS originalism?

  • Rev. Arthur L. Kirkland||

    Perhaps the concept of a law professors' blog is fatally flawed if Balkin is wrecking originalism by claiming that living constitutionalism is originalism while the Volokh Conspiracy is wrecking libertarianism by claiming that authoritarian movement conservatives are libertarians.

  • Alpheus W Drinkwater||

    Try actually reading Balkin's book and understanding his arguments, rather than making specious claims on blog comments.

  • James Pollock||

    "Can anyone articulate a coherent description of living constitutionalism"

    The meanings of words change over time, so a variety of interpretive tools is appropriate to determine what legal weight to attach to Constitutional terms.

  • Rev. Arthur L. Kirkland||

    Originalists and living constitutionalists have been hammering away at each other for decades.

    Not many decades. Originalism is younger -- and less popular -- than Kim Kardashian.

  • ||

    If your goal is finding a "right" to have gay buttsex, then yes, originalism won't be popular.

  • Sarcastr0||

    That right also covers straight buttsex.

    And oral!

  • OtisAH||

    AWRP has no interest in straight sex.

  • James Pollock||

    That's a good zinger, but it isn't remotely true. AWRP is DEEPLY and PERSONALLY interested in what kinds of sex, and when, and how often, everyone else is having.

  • James Pollock||

    "If your goal is finding a 'right' to have gay buttsex..."

    Whereas, if you goal is finding a "right" to tell people what kind of sex they can have...

  • ||

    The Constitution leaves to the states anything not explicitly prohibited. There is no Constitutional right to kill your babies, have unprotected gay anal sex to completion, or to get high.

  • James Pollock||

    "The Constitution leaves to the states anything not explicitly prohibited."

    Ours doesn't. Maybe try using the U.S. Constitution, instead of whatever it is you're using now.

  • Lester224||

    Why is a theocracy-boosting social conservative trolling in a sort-of-libertarian forum? Does he really think he is going to convince anyone of anything?

  • James Pollock||

    Trolls troll because they gotta troll. Attempting to apply rational reasons to it is doomed to failure.

  • M.L.||

    Before that, it was just called "the Constitution."

  • Rev. Arthur L. Kirkland||

    In sum, despite extensive internal disagreement, most originalists do agree on some important propositions.

    The important propositions regarding which most originalists agree constitute the current Republican Party platform.

  • Glaucomatose||

    This is one of those "constitutes" vs. "is constituted of," "comprises" vs. "is comprised of" issues, isn't it? Which is the chicken, which is the egg?

  • Rev. Arthur L. Kirkland||

    You may be thinking of compose and comprise.

  • Purple Martin||

    "Legal scholar Eric Segall argues originalism doesn't qualify as a constitutional theory because originalists disagree on too many things. His case is overstated. But if it's correct, the same criticisms applies to living constitutionalism."

    Correct. Succinct. Article could have stopped there, with the conclusion that arguments on both sides are overstated.

  • CJColucci||

    I would add one more sentence. "Or would apply if living constitutionalism, like originalism, pretended to be a theory."

  • Midwest Lawyer||

    By a "living constitution" you mean a dynamic interpretation of the constitution. Okay, but I can't wait to see the dynamic interpretation of ERISA or the bankruptcy code or the tax code.

  • Sarcastr0||

    The Constitution isn't a statute.

    In considering this question, then, we must never forget that it is a Constitution we are expounding. - Mcculloch v. Maryland (1819)

  • SimonP||

    You're evidently unaware of recent ERISA jurisprudence.

  • QuantumBoxCat||

    Contemporary Originalists disagree on what originalism means. Lol. Given Meese's writings on originalism from the 1980s as compared to writings today, it would also appear that the term "originalism" has changed in meaning over time. Yikes! Words aren't supposed to do that.

    Maybe Originalists should apply originalism to the term originalism for the purpose of divining its one true meaning. This is a group that literally possesses the method of uncovering meaning, and they cannot agree on the meaning of the term used to identify their method.

    You cannot make this stuff up!

  • CrispyBacon||

    Non-Originalists get caught on this canard that Originalism, supposedly per its proponents, provides infallible answers. Prof Somin fully rebuts your comment multiple ways in the post above and he even says, "we are still far from achieving the One True Constitutional Theory (assuming such a thing is even possible)."

    Non-originalists don't advance in their arguments against Originalism because they don't respond to what is actually being argued. It's a relentless strawman argument that seeks an ideological goal rather than an academic one.

  • Sarcastr0||

    Isn't cabined determinism the main virtue Originialists put against the unconstrained realism of everyone else?

  • Lee Moore||

    Isn't cabined determinism the main virtue Originialists put against the unconstrained realism of everyone else?

    No. That is a cabin of straw. Between "one" and "infinity", there's "some."

    Some constraint on the answer a judge may arrive at is better than none. And more constraint is better than less.

  • QuantumBoxCat||

    Your response to my post was not actually a response to what I wrote (surely you understood what I wrote given that words mean what they mean). Your strawman argument, which seeks an ideological goal rather than an academic one, is quite obvious.

  • CrispyBacon||

    QBC, when you ignore everything Somin wrote I guess it's not surprising you ignore my pointing out what he wrote. Other than that, very convincing.

    Sarcastr0 speaks to a potential value of Originalism. I don't know how many profess "cabined determinism" is the main virtue, let alone the best reason to adopt Originalism. Somin seems to be in the camp of adopting Originalism for its usefulness, rather than objective correctness, but I'm not sure if he holds the view you posit.

    Stepping away from "cabined determinism" in an objective sense (a crucial distinction easily elided), it makes sense to say that simply contrasted with "unconstrained realism" (a term that is either sloppy or prententious), Originalism is seen as possessing greater "cabined determinism."

    Numerous arguments can be mustered against that (eg that is isn't true; that "cabined determinism" is overvalued). Those arguments would be interesting. What is not interesting is playing "gotcha" because Originalists disagree or that Originalism isn't Perfect (when that is not the claim of Originalists).

  • Sarcastr0||

    Then I'm not sure I buy these increasingly arbitrary comparatives of 'more constrained' and 'more deterministic.' How are those supported?

  • CrispyBacon||

    As I said, those arguments would be interesting! I suggested the argument that it simply
    "isn't true."

    And those arguments are out there in the wild but in these online back/forths we get stuck with, "Originalism/Originalists aren't perfect so the theory is invalid (if it even existed!)!" Granted this commenting system is subpar for much more.

  • Sarcastr0||

    For me, I suspect the imperfection argument is more addressing originalists laying claim to being the sole legitimate method of Constitutional interpretation.

    From the excerpts, the piece in the OP isn't saying originalism is always invalid just that it's not a theory. i.e. it's not special.

  • Lee Moore||

    ...addressing originalists laying claim to being the sole legitimate method of Constitutional interpretation

    I think this is because you're misunderstanding the claim. Originalism (original meaning not intent, the latter being extinct) sits within a hierarchical nest of rules. It occupies a position below Textualism (ie it is a subset thereof) and above rules for determining the answer when originalism provides multiple originalist answers from which we need to pick one. So the hierarchy might be (I merely illustrate) :

  • Lee Moore||

    1. Determine the possible meaning of the text, with reference to its context
    2. If it appears that the current meaning differs from the meaning at the time of adoption/enactment => choose the latter
    3. If you are still left with multiple possible answers that have made it through gates 1 and 2, choose existing precedent if there is one
    4. if there's no precedent, is there an unambiguous intent that you can discern ? If so choose the meaning, from those which made it through gate 3, that accords best with that intent
    5. if no unambiguous intent can be discerned, choose the meaning (from those left standing)
    against the litigant responsible for drafting the law (ie if it's IRS v Mr Smith, Mr Smith wins; if it's Georgia v the US on a question of federal law, Georgia wins.)
    6. ...and so on

    Thus, originalism is not, and could never be, the "sole legitimate method" of Constitutional interpretation. It is simply the sole legitimate method for deciding questions at level 2 in the interpretive hierarchy.

  • bernard11||

    Non-originalists don't advance in their arguments against Originalism because they don't respond to what is actually being argued.

    That's because what's being argued changes its shape constantly.

  • Stormy Dragon||

    My problem with originalism:

    Suppose that Congress today passed a new 28th amendment that contained exactly the same text as the currently existing 14th amendment. What this duplicated section change the constitution?

    If we take originalism seriously as a theory, we are forced to reach the conclusion that it does, and that in all future analysis both copies will have to be analyzed independently as laws that comply with the 14th may not comply with the 28th, and vice versa as people in 1868 and people in 2018 necessarily have different interpretations of what those words mean.

    This would be a completely ridiculous situation.

  • Lee Moore||

    It would be a completely ridiculous situation, but not one caused by any inherent absurdity in originalism as an interpretive scheme. The source of the silliness would be the adoption of the identically worded 28th Amendment, while leaving the 14th in place.

    Originalism is not to blame for lawmakers choosing to pass silly laws.

    Meanwhile, back on Planet Earth, if the Congress and the States chose in 2019 to pass a new 28th Amendment dealing with, say, regulation of fossil fuel emissions, originalism would dictate that the 28th Amendment be interpreted by reference to the 2019 meaning of the text. While the 14th would continue to be interpreted by reference to the 1868 meaning of its text. What could be more logical ? Each piece of law stays the same until it is deliberately changed, rather than the law changing haphazardly as language changes.

  • Sarcastr0||

    So you reject the hypothetical because...it's unrealistic? That's not generally a good reason to reject a hypothetical.

    Many (but not all) flavors of originalism would seem to follow the scenario Stormy Dragon sets forth. Whether you think that's a problem or not is up to you, but if you want to insist on an intellectually rigorous theory, it needs to apply properly to hypothetical situations as well as real.

  • MatthewSlyfield||

    "So you reject the hypothetical because...it's unrealistic?"

    I reject the hypothetical because it, by design, produces an absurd result no matter what method you choose for interpreting the constitution.

  • OtisAH||

    I think the "absurd result" created by the hypothetical is actually the point of the hypothetical, and the OP's critique of originalism. If what is written must be taken in the context of the language and beliefs of the times in which it was written, then a subsequent amendment, using the same words written a century or two earlier, could very well have a different meaning than the original (e.g. "well-regulated militia").

  • Lee Moore||

    Yes it could. So what ?

    Suppose that the original meaning of the text of the 14th Amendment can be represented in shorthand as "X." A new 28th Amendment is adopted in 2019 using exactly the same words as the 14th Amendment. But because words have changed their meaning since 1868, the 2019 meaning of the text of the 28th Amendment can be represented as "Y". So now we have two Amendments covering much the same turf, but meaning slightly different things. Silly ? Agreed.

    But here's a different hypothetical. Suppose we have 14th Amendment = X as before. And now suppose that the meaning of the text has not changed at all from 1868 to 2019. But folk now wish to adopt a 28th Amendment which means Y. To do so they have to choose different words from the 1868 text of the 14th Amendment. They do so. So now we are in exactly the same ridiculous position as in the original hypothetical. We have two Amendments covering much the same turf, but meaning slightly different things.

    Both hypotheticals have exactly the same legal result. They create identical quantities of confusion where we have to reconcile two slightly different versions of rules covering similar territory. Neither hypothetical is more ridiculous than the other. They're both sillinesses cause by dumb legislators. The interpretive method adds nothing to the silliness.

  • Sarcastr0||

    It's not some arcane and complicated legal side-case, it's a simple thought experiment that points to a pretty fundamental aspect of originalism that goes against common intuition.

    Don't get Lee Moore's hypothetical in which people using different words about the same subject end up meaning different things. That's expected.
    Unlike using the exact same words about the exact same subject meaning different things. Which is not.

    Are you making a functionalist point that who cares if it seems crazy because it operates fine as a law?

  • Lee Moore||

    it's a simple thought experiment that points to a pretty fundamental aspect of originalism that goes against common intuition

    I agree that the common intuition is to read a text using your own understanding of the current meaning of the words. But as Brett says, you soon realise when you're reading an old text that you have to do a bit more work if you are to have a good chance of capturing what the writer meant.

    The fact that it might be a bit harder work for lawyers to remember that a text written in 1868 might have meant something different from the same text written in 2019 doesn't strike me as particularly worrying. If lawyers struggle to remember that point, perhaps they should be in another line of work ?

  • Sarcastr0||

    Fair enough. If you accept that it's okay that the two identical worded Amendments have different meanings if passed in different years, that's fine.
    Certainly there is no fundamental requirement that Constitutional interpretation should obey laymen's common sense intuition.

    Just took some doing to clarify that you guys realized and accepted that aspect of your preferred system.

  • Jon Rowe||

    Here is something quite ironic: Akhil Amar, who greatly respected and whom I greatly respect argues something similar currently exists or ought to exist in constitutional interpretation.

    We have a Bill of Rights, the original version of which applies only to the Federal Government. And a version incorporated through the 14th to apply against state and local governments. I think he argues that the meanings are different depending on whether the Federal govt is violating such a right (then it's a 1789-91 meaning) or whether a state or local govt does such (then it's an 1868 meaning).

  • Brett Bellmore||

    Yeah, and what's wrong with that? If I'm reading a play by Shakespeare, and I want to understand it, I have to use the words according to what they meant at the time.

    But if I'm reading a play written today, even if it had the exact same line in it, I'd use a modern dictionary, unless I was on notice that the author was deliberately using archaic meanings.

    The past is a foreign country, speaking a different language. Only idiots don't take that into account.

  • Sarcastr0||

    Not a great parallel for your side, Brett, because no one ratifies or amends plays but certainly modern meaning comes in a lot, making them ever-contemporary.

    Ever see a modern staging of Taming of the Shrew? Probably not Willy-S's original intent, but no one is yelling it's a crime upon literature.

  • MatthewSlyfield||

    I disagree, that any non-originalist approach can do anything to remove or mitigate the absurd result created by the absurd hypothetical.

  • Sarcastr0||

    What about the hypothetical is absurd? That you don't like it?

    Under a modern language doctrine, there is no difference in meaning between the two amendments as enacted and re-enacted, right?

  • James Pollock||

    "I disagree, that any non-originalist approach can do anything to remove or mitigate the absurd result created by the absurd hypothetical."

    Any algorithm for interpretation that purports to produce true answers needs to be able to handle all inputs. If you choose to screen some inputs from your algorithmic testing, you are conceding that your algorithm will produce incorrect results. And if you concede that your algorithm can produce incorrect results, it's fair to label your algorithm as incorrect.

    It may be that your algorithm is less-incorrect than another, specifically-identified algorithm. But originalists tend to insist that originalism is more correct than any other algorithm, without bothering the inspect the alternative(s) offered.

    Living Constitutionalists, on the other hand, tend to accept that a variety of tools may produce better overall results than does a single tool.

    Personally, I sense that originalism is falling out of favor with conservatives, who now prefer judicial activism since they've managed to appoint more judges.

  • Lee Moore||

    Any algorithm for interpretation that purports to produce true answers needs to be able to handle all inputs. If you choose to screen some inputs from your algorithmic testing, you are conceding that your algorithm will produce incorrect results.

    No, you just have a slightly more complex algorithm than might first be imagined.

    I used to work in a factory which bottled soft drinks. There was a rather fun bottle washing machine into which the used empties were fed, into a large waiting area (like a crowd waiting to go through turnstiles at an event) before the machine jiggled them forward. At the edge of the waiting area there were about twenty channels with sidewalls that sorted the bottles into orderly rows so the machine could then process them. A neat algorithm.

    But the algorithm couldn't deal with the fact that a bottle might fall over in the waiting area. Left to its own devices it would block the channels and cause a cascade of other bottles to fall over. That would force you to stop the machine.

    But the solution was to have a worker with a long hook sitting above the waiting area. When a bottle fell over, he (or she) would flip the bottle upright with the hook. It took a little time to learn the knack.

  • Lee Moore||

    So the algorithm wasn't just the bottle washing machine. It was the {bottle washing machine plus the worker with the hook to deal with anomalies.}

    Which goes to show that an algorithm isn't necessarily incorrect if it has to have a manual backup. And in constitutional theory it's much better to have a bottle washing machine with an automatic feeder that sometimes has to have manual backup; than using a system that consists of nothing but manual backup.

  • James Pollock||

    "But the algorithm couldn't deal with the fact that a bottle might fall over in the waiting area. Left to its own devices it would block the channels and cause a cascade of other bottles to fall over. That would force you to stop the machine."

    That's what I said. If your algorithm can't handle all inputs, you're conceding that it sometimes produces incorrect results. You describe the incorrect results in the quoted text.

    "But the solution was to..."

    The solution was to do something else. Because the original algorithm was flawed. It produced incorrect results.

  • Lee Moore||

    The misunderstood partial algorithm, stated as the bottle washing machine, was flawed. But the actual algorithm was effective.

    And so with originalism. Nobody suggests that originalism is a machine into which you can put any legal question and it will infallibly churn out a single definitive answer. Originalism is simply one of a hierarchy of rules designed to limit the possible output of the interpretation machine to as few viable answers as possible.

    It (originalism) operates at the stage in the process where one needs to decide between a set of possible interpretations revealed by the original meaning, and another set revealed by the current meaning. It tells you to choose the former set. But that does not end the running of the algorithm, if the set then has more than one member. You keep going on to the next rule.

    So it's silly to complain that originalism is not a complete infallible algortith. It's a useful component. A wing is not a plane.

  • JeffR24||

    Textualism handles it just fine; yet another reason why it's a superior theory to both Originalism and Living Constitutionalism.

  • James Pollock||

    "Textualism handles it just fine"

    By "handles it just fine", you mean "punts in the face of any difficulty", right?

  • Brightly||

    You mean punting towards the text is wrong?

    As opposed to making it up as you go along? Ie "not punting"?

  • James Pollock||

    "puning" = produces no solution.

    I have a system that always works, except for when it doesn't, which is any time the job is difficult or close.
    Textualism works just fine when the text is unambiguous and lends itself to only one interpretation. But if it's vague and provides multiple interpretations, textualism has no solution.

  • Lee Moore||

    Textualism works just fine when the text is unambiguous and lends itself to only one interpretation.

    Correct

    But if it's vague and provides multiple interpretations, textualism has no solution.

    Incorrect. You just move to the next rule down the hierarchy. If the text is vague or ambiguous, after having been considered properly in its context, you move down the hierarchy to "originalism" which tells you to delete current meanings of the text and keep original meanings. After that, you move on to the next rule (if you still have more than one meaning.)

    At this point, opinions will differ as to what the next rule is. But it's likely to be one of "precedent wins"; "intent wins (if you can reliably discern it)" ; "this would be a good policy" wins etc. At the end of the hierarchy there's "wing it" as with any other interpretive scheme.

    The difference between an interpretative scheme that relies on a hierarchy of rules (eg textualism > originalism > precedent > intent > policy) is that by the time you get to "wing it" - if you arrive there at all - your choices have been heavily winnowed down; whereas if you have no hierarchy, but just a list of ingredients (ie pick and mix from the following ingredients accoring to taste : text, precedent, intent, policy) you basically arrive at "wing it" immediately.
    With the whole chocolate box to choose from.

  • Lee Moore||

    No, I don't reject the hypothetical. I entirely accept the hypothetical and anayse it, arriving at exactly the same conclusion as Stormy Dragon. We would have arrived at a ridiculous situation.

    But my analysis of the hypothetical concludes that the absurdity is the result of the actions of the hypothetical legislators, not the result of flaws in the interpretative method.

    You see, originalism and living constitutionalism differ in that originalism is quite willing to accept that the answer arrived at may, from a policy point of view, appear silly and undesirable to the judge. Originalism does not guarantee that the laws will always be found to be wise. And from an instrumental point of view, that's the point of it. The judge is not there to arrive at a result he feels is wise. He is there to determine, within the tight constraints of the text, what the law decrees. Wise or not.

  • OtisAH||

    Except the point, I think, is that "the tight constraints of the text" of an amendment written in the 18th century will likely not be same constraints as one written in the 21st. That is where a conflict between a hypothetical 28th amendment — written using the same wording of the 14th, but with 21st century understanding —and the 14th arises. Identical amendments with different meanings. Living constitutionalism presents no such conflict because, under that, the 14th can be read and understood in modern terms.

  • Lee Moore||

    Not quite sure what living constitutionalism has to do with this point. Let's stick with textualism.
    It is certainly true that the original meaning of a two hundred year old text is likely to be more obscure, and so more ambiguous, than the current meaning of the same text. That's a strike against originalism as against currentism. But currentism has the drawback that if we accept, as we do, that the meaning of words may change over time, then the current meaning may be different from the meaning at the time the law was written. Since we assume that the original legislators chose the text deliberately to enact or adopt the meaning that was revealed by the text at the time they wrote it, currentism risks changing the law arbitrarily because of the drift of linguistic usage.

    Or, perhaps worse, changing the law according to the wishes of a privileged cllass of scribes who influence word meanings. eg organisations of doctors may write medical dictionaries to move the meaning of medical words in a direction they like - such as "death", "abortion", "contraceptive"; or pharmaceutical companies may try to shift specialised words in a direction that keeps their IT lasting longer.

  • Lee Moore||

    So the trade off is - currentism gives you a more accessible meaning....which may be bunk, and carries a greater risk of being bunk the longer the lag. Originalism involves more uncertainty about meaning, in return for a much greater chance of avoiding bunk. To the extent that the original lawmkers were not enacting bunk in the first place, of course.

  • Sarcastr0||

    Using current meaning also allows a Constitution to reflect current values and ideals, as those move with language.

    Originalists argue the only way we should do that is in fits and starts via amendments, since that is the only way to be assured of sufficient popular buy-in (and for other more question-begging reasons). But language has a democratizing nature itself, and in a more continuous and less artificially-political nature.

  • PubliusVA||

    "But language has a democratizing nature itself"

    But changes in language, though driven by popular usage, may be driven in directions and for reasons that have no connection to how and why they are used in a constitution.

  • Sarcastr0||

    Which should be pretty clear from context, no? Only certain flavors of originalists claims to be purely prescriptive, and most of their claims fall apart upon inspection.

  • Lee Moore||

    Sarcastro : Using current meaning also allows a Constitution to reflect current values and ideals

    No, wrong. There is no reason at all to assume that the linguistic drift of words over time, will happen to have them land on a meaning that "reflects current values and ideals" at the time a case comes to court. And, for obvious mathematical reasons, an increasingly small chance of hitting this serendipitous match every time a case comes to court.

    I accept, of course, that there is a possibility of such a happy match. But it's a far smaller possibility than the possibility that the original meaning of the words achieves the match; since in many cases current values and ideals will be similar to old ones.

  • Lee Moore||

    A reliable match between the meaning and current values and ideals is only achievable if the judge is permitted to turn a Nelsonian blind eye to the text, and substitute "current values and ideals" directly. The problem with that of course is that you get the judge's current values and ideals. And as we know, from having elections from time to time, it turns out that there's no such thing as society's current values and ideals. Different folk have different values and ideals, and some of them don't think the judge's values and ideals are coextensive with their own.

    Traditionally those folk unhappy with judicial usurpation have been more traditional folk. But with another 150 conservative judges coming down the pipe at you, I'd have thought that some liberals ought to be having more doubts about falling back on the judge's values and ideals.

  • James Pollock||

    "There is no reason at all to assume that the linguistic drift of words over time, will happen to have them land on a meaning that "reflects current values and ideals" at the time a case comes to court."

    There's a feedback loop that corrects for errors.

  • Lee Moore||

    language has a democratizing nature itself

    I don't think this is true at all. Most people are language takers not language makers. Language makers tend to be folk who are in a position to have their usage copied - writers, entertainers, academics, scientists, politicos, speechifiers.

    That's not to say that the hoi polloi can't come up with their own usages, but mostly the elites are driving the changes and the hoi polloi are following on behind. And so, in spades, for the sort of words that turn up in legal documents.

  • James Pollock||

    "That's not to say that the hoi polloi can't come up with their own usages, but mostly the elites are driving the changes and the hoi polloi are following on behind."

    This is an assertion that isn't true. Writers and broadcasters and other "media elites" craft their products to appeal to "the hoi polloi" (which is, sorry to tell you, an incorrect usage. There is no "the" with "hoi polloi", since "hoi polloi" means "the people".)

    This means they're likely to incorporate changes in language they're hearing, not push new usages themselves. Look at how desperately President Trump wants "fake news" to mean "truthful things that make me look bad", instead of what it really means. He hasn't yet managed to drive that change, despite a repetition level that is rather intense. On the other hand (politically speaking), there was "Pokemon Go... to the polls", a failed attempt to incorporate youthful language where it didn't actually fit.

    Usage changes because people start (collectiely) using words differently. Not because some power elite wants it to.

    As for the legal context, they tend to lag the worst. There was a case a while back in which case asking for a lawyer, dog wasn't a valid invocation of sixth amendment rights because there are no dogs trained as lawyers.

  • James Pollock||

    "While the 14th would continue to be interpreted by reference to the 1868 meaning of its text. What could be more logical ?"

    More logical? Maybe, if the legislation worked the way you're imagining it. If, each time an amendment were passed, they re-wrote the entire document to take the change into account, instead of just attaching it to the end. But they don't do that anymore (at least, not since 1789, when the Constitution replaced the Articles of Confederation.)
    So, for example, you have the 19th amendment changing what the meaning of "voter" is throughout the document. The 14th amendment changed the entire structure of the government and the relationship between the federal government and the states. So, in interpreting Article I, Section 8, what do you apply... the "original" intent of 1789, or 1868, or 1920? Do we assume nothing changes by amendment unless the text is directly replaced, or does everything change, or is there some kind of partial change, which has to be analyzed and interpreted according to present need(s). (Hint: That last one is living Constitutionalism.)

  • CrispyBacon||

    It's arguable what would happen, even setting aside Originalism/non-Originalism.

    What happens when you have a text defined in large part by precedent that might not fully accord with how courts would decide the issue if they had a clean slate? If you adopt the same exact language does all the precedent get swept away? Or do we view the re-adoption is a modern ratification of all that precedent? Or a re-affirmation of the original meaning (leaving it to the courts to decide what that is)? You ignore that possibility that adopting the exact same language can serve as a ratification of the original meaning.

    If we re-adopt the First Amendment's language, does "press" mean "the media" as generally understood in our contemporary language? Or is it merely a ratification of the original meaning of printed speech, as persuasively argued by Prof Volokh and others? If we intended a different meaning than historically given, shouldn't we use different language to signify that? Is it the particular intent of the re-adopters that matters? These are questions you have to deal with no matter what.

    You question only gets at how we define what the understanding of the words is. And that's what Originalism grapples with. There's no "problem" with Originalism on that score and we are surely(Shirley) not forced into the conclusion you insist upon, as should be apparent from the various considerations I've described.

  • James Pollock||

    THE major flaw of originalism is that it is based on an incorrect understanding of language. To accept originalism as a guiding principle, one must assume that a string of words can be determined to have one, and only one, meaning, independent of the immediate audience. Since that assumption is not correct, originalism cannot take any string of words and reduce it to one, and only one, meaning.
    But language is malleable, and not universal.
    Originalism appeals to conservatives because it inherently rejects new ideation. It can't possibly be true that (new idea is true) because (new idea is new)! If the old ways were working well, then applying them as-is to new circumstances is a reasonable starting position. But if the old ways had problems, then altering the old ways and adopting new ways to adapt to new circumstances is better.

    So... the Founders' idea of "freedom" included chattel slavery for melanin-enriched people and disenfranchisement for gyno-Americans of all colors. Today's definition of "freedom" is better, even if the "people who operate businesses baking cakes get to turn away paying customers for being gay" freedom was traded in along the way.

  • CrispyBacon||

    I think your critique goes to why Originalists still sometimes blur or ignore the difference between "original intent" and "original (public) meaning." There isn't always a clear demarcation between the two and in seeking to determine a meaning either can be helpful to consider. "Original intent" is open to abuse and confusion which is one good reason it has faded as a touchstone.

    As Somin observes, Originalists disagree with each other and Originalism needs more development. Originalism has great force when determining discrete phrases or individual words. At that level, we're not adding a gloss as to how an entire provision should be applied.

    The malleability of language is a great reason to find a stable way of defining terms so as to maintain that fidelity. It's important to know what is meant by "press" or "well regulated Militia," in a way faithful to the Constitution. Liberals have seized on the word "press" to suggest a special right of speech exclusive to those in the news media. They have seized on "well regulated Militia" to suggest the federal government is not barred from restricting individual rights. Linguistic opportunism is a threat regardless of approach, but at least the two sides are on the same playing field when they have those arguments.

    We should guard against ignoring the Constitution's words because they're not compatible with the moral or social views of a majority of Justices. If a provision is incompatible, amend it.

  • Lee Moore||

    THE major flaw of originalism is that it is based on an incorrect understanding of language. To accept originalism as a guiding principle, one must assume that a string of words can be determined to have one, and only one, meaning, independent of the immediate audience.

    No, this is completely misconceived. It's an essentially postmodern take on text, and suffers from same gaping holes. A text may indeed have several possible meanings, but the meanings that are possible are not infinite, they are constrained by the context. You may not finish up with just one possible meaning, but you can exclude a whole pile of meanings as impossible.

    So the point of originalism is not to guarantee only one possible meaning. It is to constrain the judge to find only one of the possible meanings.

    In contrast to, say, living constitutionalism, where the judge is not subject to any textual constraint at all, because the interpretative method permits the judge to overlook contradictions between his answer and the text.

  • Lee Moore||

    It is to constrain the judge to find only one of the possible meanings.

    Sorry, poorly worded.

    "It is to constrain the judge to search only amongst the possible meanings, and find his answer from within that set only."

  • Sarcastr0||

    In contrast to, say, living constitutionalism, where the judge is not subject to any textual constraint at all, because the interpretative method permits the judge to overlook contradictions between his answer and the text.

    This is the strawman version of living constitutionalism, which as applied looks more like the constraint by context model you attribute to originalism.

    If you want examples, look at just about any Constitutional Supreme Court decision not written by Kennedy. Breyer and Roberts are both very good at doing the work to support their contextual resolving of ambiguity.

  • Lee Moore||

    Breyer and Roberts are both very good at doing the work to support their contextual resolving of ambiguity.

    I beg to differ. Selecting a meaning that is not among the possible meanings of the text, and justifying it by reference to what a good policy it is, is not "resolving an ambiguity." It's making stuff up.

    "Give me a burger" is ambiguous. There are lots of different kinds of burger. The ambiguity is not resolved by saying "An apple would be better for you. Here you are." Or even "it is clear that the intent was to seek sustenance of roughly the same size as a burger. Since no particular burger is specified, we can rule out the possibility that the request was narrowly limited to burgers. And since apples are good for you, here's an apple."

  • Sarcastr0||

    Breyer has a whole book about his purposivist philosophy - that's not making stuff up.

    Indeed, you are the one who brought up inserting policy considerations into Constitutional analysis. I take it you think Roberts and Breyer do that all the time? Check and see - you may be surprised!

    Your last paragraph is itself ambiguous. You point out that there is a line beyond which you're legislating and not judging, but where the line is drawn is left completely open to your own personal arbitration.

  • Lee Moore||

    Breyer has a whole book about his purposivist philosophy - that's not making stuff up.

    I haven't read it. But you do keep mentioning it. But I have read some of his judgements and they take the form of selecting unwritten purposes to justify the answer he wanted to arrive at. Had he preferred a different answer, he could just pluck different purposes from his rear end. No constraint at all.

    Your last paragraph is itself ambiguous. You point out that there is a line beyond which you're legislating and not judging, but where the line is drawn is left completely open to your own personal arbitration.

    How so ? Am apple is not a kind of burger. No, really, it isn't. The line is drawn between burgers and non burgers. That's not an arbitrary line, as it was burgers that were mentioned. I quite accept that the request is vague - it fails to specify what kind of burger. Which means any kind of burger is consistent with the request. But not an apple.

  • Sarcastr0||

    Your analysis requires rather too much telepathy.

    If you don't think there is ambguity just because you have an extreme example, you're not thinking. What about cheeseburgers? Turkey burgers? Does it need a bun?

    This is why statutes are written in such unclear language. Specificity and clarity are in tension. That the Constitution went with clarity would seem a design choice.

  • Lee Moore||

    Your analysis requires rather too much telepathy.

    I don't believe so. It's actually pretty simple math. I offer a hierarchy of rules. You apply them in a set order. Sure, at the end of my list there's "wing it" - but you don't get there until you've passed through all the previous rules, excluding things as you go. So my discretion is small.

    The Breyer approach is {take a mixture of text, intent, precedent, common sense, good policy, and some values and ideals} It doesn't specify any order of operations, nor quantities of each ingredient. Consequently, case by case, any order of operations and any mix of each ingredient is consistent with his method. So his discretion is a couple of orders of magnitude larger than mine. He can choose the answer he likes and justify it with a different mix of his ingredients each time.

  • Sarcastr0||

    Sorry - your analysis of Breyer opinions is where the telepathy occurs.

    I generally don't like setting up a formal required protocol, because real life is full of curve-balls. We have judges not judge-bots and I think that's a good thing. As I've said above, determinism isn't obviously a virtue in Constitutonal interpretation. Certainly it is not the only one to pay attention to.

    As you can see from my post about my own preferred doctrine, I don't subscribe to Breyer's approach myself, I just use it a lot as an example of a cabinned living constitutional method put forth by an intellectual leader in that area.

  • Lee Moore||

    determinism isn't obviously a virtue in Constitutonal interpretation

    determinism isn't within practical reach, all that can be hoped for in the real world is the "cabinning" of judicial discretion, to borrow your expression.

    We'll have to agree to differ on the point of principle. IMHO if judges are to have the power to overtrump the laws written by the people's elected representatives, I think their discretion should be as small as can reasonably be achieved.

  • Sarcastr0||

    Yeah, love the word cabenning at the moment.

    Under your logic, shouldn't we then just eliminate all constitutional review?

  • Lee Moore||

    Under your logic, shouldn't we then just eliminate all constitutional review?

    Why so ? I'm quite happy with a Constitution that overtrumps regular law, imposed by a supermajority and amendable only by a supermajority - so long as the content, to the nearest approximation, protects natural rights from a temporarily tyrranical majority.

    My objection is not to the possibility that the current 51 percent's may not be able to impose their views on the 49% instantly and totally. It's to the overruling of the 51% by five lawyers using their discretion about what would be best. I don't think their opinion about what would be best should have any preferential weight at all. So I'd be happy, conceptually, with judge bots. Except for the conceptual difficulties of (a) programming them and (b) the inevitability of possible residual vagueness or ambiguity. Judicial discretion is a necessary evil, not a good thing.

  • Sarcastr0||

    Justice requires nuance.

    No one thinks judges should get unbridled discretion (despite the strawman living constitutionalist oft conjured on this thread), but once again we return to your personal feeling as arbitrary line drawing and a poor principle to guide when this line is crossed.

  • Lee Moore||

    Justice requires nuance

    Such "nuance" is merely arbitrariness wearing a wig. Unavoidable, sometimes, at the highest level of resolution. But never to be celebrated.

    No one thinks judges should get unbridled discretion

    And yet, you can presumably see that a formula for bridling judicial discretion which specifies factors to consider, but without a weighting for each factor, and without a hierarchy of factors, bridles judicial discreton hardly at all compared to one that specifies an order of operations within a hierarchy ?

    once again we return to your personal feeling as arbitrary line drawing and a poor principle to guide when this line is crossed

    Nope. Any judgement may be portrayed as arbitrary, but that doesn't been that it is. I could support my conclusion that a turkey burger is a burger with argument. Such things have been called burgers in common usage. A typical burger is a chunk of meat between two halves of a bun. Usually ground beef, but I can point to examples of other fillings.

    But if I want to claim an apple is a burger, I've got no rationalisation. It's just a lie.

  • Lee Moore||

    If you don't think there is ambguity just because you have an extreme example, you're not thinking. What about cheeseburgers? Turkey burgers? Does it need a bun?

    Yes, cheeseburgers. Yes, turkey burgers. No, bun not necessary. But a judge who concluded yes, no, yes would not be being dishonest. he would simply be resolving the vagueness differently from me.

    But the judge who concluded that an apple was a burger would be being dishonest. Likewise the judge who decided a church was a burger, or a mobile phone, or a baseball bat.

    And therein we have the fundamental flaw in postmoderism. While we always face the problems of vagueness and ambiguity, it is not the case that all meanings are equally valid. Some are demonstrably wrong.

  • Sarcastr0||

    My point is that the line is not obvious. And just because you and I can agree on some points over the line does not mean that the general argument 'this is clearly over the line' doesn't need more support than.

    That's the rub - how do you demonstrate 'demonstrably wrong?' Too many on the right just go with their gut.

  • Lee Moore||

    That's the rub - how do you demonstrate 'demonstrably wrong?' Too many on the right just go with their gut.

    Well, I'll take one pace towards you on that point. Humans being the sort of creatures who often prefer winning an argumentative combat to truth, they often exaggerate. It is completely unreasonable to claim that an apple is a burger. But if you were to claim that a slice or two of lettuce and tomato between two halves of a toasted bun was a burger, though I would disagree, I could not honestly say that your characterisation was completely unreasonable. Burgers can have a range of different fillings and though I've never come across a purely salady burger with no meat or fish in it, your salad "burger" is not demonstrably false.

    Nevertheless, I can easily imagine someone less scrupulously honest than myself :) claiming vehemently that a salad burger was just as "demonstrably false" as a "burger", as is an apple. This would be, IMHO, an exaggeration. Human guts can persuade their owners to go further in rhetorical flourish than the facts justify.

  • Sarcastr0||

    I think we can agree that the line of correct/incorrect can be arbitrary, but the line of legitimate/illegitimate should have a more principled aspect to it.

  • James Pollock||

    "If you adopt the same exact language does all the precedent get swept away?"

    Why would it?

    If the intent is to sweep away the precedent and start over, that's what your amendment should say.

    We tend to infer a coda to every amendment... "... and any existing statute, regulation, or judicial ruling to the contrary is expressly overruled and is now therefore null and void."

    What if we actually started putting that in the black-letter text, instead of leaving it implied? If we choose to go with an amendment to overturn, say, Roe v. Wade, maybe the enabling text should say so, specifically. The Constitution itself has a preamble, but amendments generally don't. Maybe they should. Instead of trying to write text that stands by itself, endlessly proclaiming it's intent and purpose and function solely through the clarity of the text itself, maybe we should start spelling out EXACTLY what we're trying to do when we do something via the Constitutional amendment process.

  • CrispyBacon||

    Stormy Dragon suggests the text would be read with contemporary meaning if re-adopted (ie necessarily free of restraining precedent). But I agree if the People wanted to do something different, they would say something different.

    It's fairly difficult to write something that won't be misconstrued or even ignored. The 9th and 10th Amendments are pretty straightforward but given little practical significance. The Commerce Clause says that Congress may "regulate Commerce...among the several States." That has come to mean regulation of any potentially commercial act occurring wholly within the confines of a single state.

    Pitting the People against unelected judges through an arduous ratification process is inferior to judges more reliably abiding the words of the Constitution.

  • Stephen Lathrop||

    Stormy, that is a cool hypothetical. At the very least, it leaves behind the bumptious types who see words they recognize in modern context, and go on to assume that's what those same words meant when written centuries ago. And the left-behinds turn out to be essentially all the originalists. It's damned hard to find even one of them willing to concede that a valid theory of originalism would require deference to experts in prior meanings and prior context, such as historians.

  • Lee Moore||

    It's damned hard to find even one of them willing to concede that a valid theory of originalism would require deference to experts in prior meanings and prior context, such as historians.

    Beacuse it wouldn't, obviously. A court is not required to defer to an expert in blood stains. Each party brings along its blood stain expert and the court decides which expert has made the most convincing argument.

  • bernard11||

    Each party brings along its blood stain expert and the court decides which expert has made the most convincing argument.

    A decision judges and juries are laughably unqualified to make.

  • C. S. P. Schofield||

    My problem with 'Living Constitutionalsim' is that I mainly encounter it invoke by people who want to ignore one more inconvenient Amendments (Usually one or both of the first two). Now, that may be because I am a political dilettante, not a legal scholar, and 'Living Constitutionalism' means something rather different to people who work day to day with the Law. If so, I am prepared to be enlightened. But until that enlightenment, I must continue to view the 'Living Constitutionalists' I have met as scofflaws.

  • Sarcastr0||

    I would wager your definition of ignore is more in keeping with not following your preferred interpretation than actually ignore - disagreeing with you doesn't make someone a scofflaw.

    Though is with everything there are legit BS artists out there, it takes more than just thinking someone is wrong to jump to that conclusion.

  • Brett Bellmore||

    Sarcastro, when somebody deliberately adopts an 'interpretation' of an amendment which deprives it of any application, maybe "ignore" isn't the right word, but it isn't good faith that you're looking at. That's a fair description of gun controller 'interpretations' of the 2nd amendment.

  • OtisAH||

    As opposed to the proper interpretation of 2A which involves unregulated ownership of weapons that wouldn't exist for a century-plus after 2A was written? Because it seems to me that, under your correct originalist interpretation, the only firearms, and the only uses of firearms, protected in 2A are those firearms and uses of same that were known and understood in the 18th century.

  • James Pollock||

    I don't know why firearms enthusiasts always fetishize the 2A. The right to own (and use) a gun comes from general principles, and was present in the Constitution before there was a Bill of Rights. The Congress wasn't empowered to limit such rights except in specific circumstances, and therefore lacks that authority, when those circumstances are absent.

    The "poster child" example of "reading out" an amendment didn't involve the first OR second amendment. It was the Supreme Court attempting to limit the 14th.

  • Rev. Arthur L. Kirkland||

    Prof. Amar addresses this point persuasively.

  • Brett Bellmore||

    We "fetishize" the 2nd amendment, because it's sort of a canary in the coal mine so far as the Constitution is concerned. Sure, you shouldn't need it in a country where the founding principles of the US were respected, but that ship sailed a long while ago.

    Meanwhile it IS still there, still saying something a lot of people don't like, so it serves as a great indicator as to whether particular jurists and politicians actually have any respect for the Constitution and the rule of law.

  • James Pollock||

    "Sure, you shouldn't need it in a country where the founding principles of the US were respected, but that ship sailed a long while ago."

    In a country where the founding principles of the US were NOT respected, the 2A would be of no use whatsoever, to anyone.

  • Brightly||

    "In a country where the founding principles of the US were NOT respected, the 2A would be of no use whatsoever, to anyone."

    How do you know?

  • Lee Moore||

    No. You are confusing original meaning with original expected application (which is a living constituionalist straw man.)

    In the first place 2A does not refer to firearms, it refers to arms. Which has always been a generic term for weapons of all kinds (including armour.) You might argue that, in context, it is limited to the sort of arms that can be "borne" but what it certainly doesn't exclude is things that hadn't been invented by 1800, but which are members of the class of "general weapons." In the same way 14A applies just as much to persons and citizens who came into existence after 1868, as it applies to persons and citizens who were in existence at that time. And if there was a constitutional rule against eating dogs, it wouldn't be restricted to eating breeds that were known about at the time of adoption.

    But. Suppose 2A had been adopted in say 1900, by which time folk had stopped using armour, and say the word "arms" had by then lost any sense of including armour and was restricted to weapons only. Now that armour is back in fashion, you would have a good argument that 2A did not protect the right to wear body armour, since at the time of 2A's adoption, "arms" did not include any concept of defensive armour.

  • Brett Bellmore||

    Right. Tenche Coxe, a contemporary of the founders, and a fairly prominent phamphleteer at the time, was aiding Madison by promoting the Bill of Rights. What did he have to say about the 2nd amendment?

    "Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."

    Note, the people, NOT the militia, and it was their private arms. And, what did he understand "arms" to mean? "Their swords and every terrible implement of the soldier..."

    That's pretty general. It wasn't restricted to guns, it was anything and everything a soldier might be expected to carry about.

  • James Pollock||

    "That's pretty general. It wasn't restricted to guns, it was anything and everything a soldier might be expected to carry about."

    Biological warfare was known to the Founders. You're arguing the 2A covers biological weapons?

  • James Pollock||

    "In the same way 14A applies just as much to persons and citizens who came into existence after 1868"

    The 14A was written prospectively, on purpose because it is answering a question that the Founders didn't think to ask (or write down). 1865 saw a tremendous change as chattel slavery was coming to an end, generating the question: Are these people (suddenly recognized under the category "people") to be given all the freedoms which the people of America enjoy? You can point to the 14A birthright citizenship provision and know that the people who wrote it intended it to be applied in the future.

    And now, some people note that the original need for the 14A birthright citizenship provision has expired, and the provision is being applied in a way the Founders probably did NOT envision when they wrote it... but the way it is being applied is definitely in accord with the way it was written.

  • Lee Moore||

    The 14A was written prospectively, on purpose

    Not quite sure what you mean. "Prospectively" doesn't appear in the text. It just refers to persons and citizens. I don't think there's any doubt that the adopters intended it to apply to persons and citizens coming into existence after 1868, so if that's what you mean by "written prospectively" then fine.

    But there's no hint in the text that "arms" in 2A is used in an "unprospective" sense, whatever that might mean.

  • ||

    No one is advocating for unregulated ownership of weapons. And whether it existed at the time is irrelevant, given that the 1st Amendment protects Internet blogs and the 4th protects thumb drives. Don't you ever tire of spreading bullshit?

  • EscherEnigma||

    No one is advocating for unregulated ownership of weapons.


    Exactly. Which is why no one believes y'all are serious about your "originalist" interpretation of the 2nd Amendment.

  • ||

    WTF are you blabbering about? All we are asking for is to be treated with the same strict scrutiny as every other right.

  • James Pollock||

    "All we are asking for is to be treated with the same strict scrutiny as every other right."

    You have a habit of claiming that other rights aren't "rights". And now you're complaining when other people suggest that your sacred cow isn't sacred, either.

    Snowflake.

  • Smooth Like a Rhapsody||

    No, he is claiming his sacred cow is actually, provably, a cow, and that thing the other side is calling a cow is actually, provably, a child's finger-painting of a cow.

  • Sarcastr0||

    The idea that all rights get strict scrutiny all the time is a child's view of Constitutional law.

  • James Pollock||

    "No, he is claiming his sacred cow is actually, provably, a cow, and that thing the other side is calling a cow is actually, provably, a child's finger-painting of a cow."

    True... assuming "provably" means "he asserts it over and over again"

  • Smooth Like a Rhapsody||

    No, "provably", means that the term is actually there in the text of the document, and, therefore, just like with any other legal document, we can argue about the definition.
    Living Constitutionalism is unfalsifiable, and, therefore, not a theory of anything.

  • Sarcastr0||

    But determinism (and thus falsifiability) isn't a virtue of any of these theories of interpretation, including originalism, absent a time machine and a telepathy device.

    They may be called theories, but this ain't science.

  • Lee Moore||

    But determinism (and thus falsifiability)

    No, you keep on diving down this silly rabbit hole. Determinism and falsifiability are not the same thing, even slightly.

    Falsifiability is about excluding an answer from the set of possible answers. Determinism is about arriving at a single answer.

  • Sarcastr0||

    That seems a fair distinction. But so clarified, see my 8:11AM post; falsifiability is something both o and lc flavors say they deliver.

  • James Pollock||

    "No, 'provably, means that the term is actually there in the text of the document."

    You'd have a point, if it weren't for those darn Founders who thought that complaint when they put the Bill of Rights down on paper. It's almost like they thought they'd NEED an amendment that said something like "all the other rights not mentioned so far still exist, and are reserved to the states and the people, ya whiny snowflakes."

  • Lee Moore||

    You'd have a point, if it weren't for...blah blah

    He has a point. If it's in the text, there's provably a right. If it's an unmentioned right, then it lacks the same degree of provability. This is why some folk sometimes prefer written contracts. It makes the provability easier.

  • Social Justice is neither||

    Do you apply the same standard to the 1st & 4th? Would seizing all computers and disrupting all web access for the NYT and it's reporters be fine since computers and the internet weren't around at the time of the constitution. After all the press at the time was a mechanical hand press leaflet so that hasn't been interfered with.

    The terms in the constitution are generic and broad for a purpose. To limit them to what was in existence at the time of adoption would require just about require each new congress to redefine or reaffrim much of the core documents each session.

  • James Pollock||

    "The terms in the constitution are generic and broad for a purpose."

    Partly true.

    "To limit them to what was in existence at the time of adoption would require just about require each new congress to redefine or reaffrim much of the core documents each session."

    OK. You forgot to include why this would be bad. It would move the discussions from the judicial to the legislative branch... that is, to people who'd have to answer for the things they changed, if they changed things.

  • EscherEnigma||

    Hey, I'm all for giving every law a sunset clause, requiring legislators to at least rubber-stamp renewals.

    Don't really have a problem with doing that with a constitution as well. Probably want a longer "sunset" period, but regular updates, for clarity and explicitly incorporating or overturning the outcomes of court cases, as well as adding new provisions as necessary, would be a good thing.

  • James Pollock||

    "Don't really have a problem with doing that with a constitution as well."

    Ours has a sunset clause, but just one.
    The Founders tried to prevent a standing army by making it unConstitutional to appropriate funds to the maintainence of an army for more than a year.
    I'm sure there'd be widespread popularity for a similar sunset requirement for any tax levied.
    Other than that, though, I don't think there's any apetite to add a day of "reauthorizing all the stuff we reauthorized last year" roll-call votes to Congress' schedule.

  • Sarcastr0||

    In order to believe that, Brett, you would need to assume that for generations people were acting in bad faith about the Second. Bad faith being measured, of course, by how much it hews to your own interpretation of the Constitution, since your horse sense is clear and correct to everyone.

  • Brett Bellmore||

    Not at all. Keep in mind that the 2nd amendment wasn't incorporated against the states until very recently, and there wasn't any federal gun control for it to apply to until the mid 20th century. State gun laws would have been evaluated under state constitutions, not the federal.

    But this understanding of the 2nd amendment was why, for instance, the original NFA, in an effort to discourage ownership of machine guns, levied a high tax on them, rather than actually prohibiting their ownership: Because it was understood that a (federal) law actually prohibiting owning a firearm would be unconstitutional.

    In fact, the first federal law presuming to actually ban any sort of firearm ownership by a non-felon wasn't enacted until the 1980's, and even that was implemented in the form of a refusal to accept payment of the NFA tax. It wasn't until the '94 AWB that Congress actually passed a law that explicitly claimed the power to ban a gun.

  • Sarcastr0||

    Fair enough history, I'll admit I am a sucker for that stuff.

    But I'm not sure if it doesn't just reroute your inconsistency elsewhere. By your measure, isn't incorporation a travesty against the Founders? Or if it's not, wasn't it a travesty up until the Founder's meaning was at last adopted by incorporation?

  • ||

    There's no inconsistency. The drafters of the 14th Amendment made a decision to incorporate some of the federal protections against the states (through the privileges or immunities clause, not due process). You could say it's a "travesty" based on moral principles, but I'm not seeing any inconsistency in terms of the Constitution.

  • James Pollock||

    "there wasn't any federal gun control for it to apply to until the mid 20th century."

    Incorrect.
    Trading of guns to the Indians was regulated in the 18th and 19th centuries.

  • Brightly||

    Yes, but the Tribes were treated a lot like foreign nations and we are talking US Citizens. There still exists regulations involving the transfer of weapons to foreign nations.

  • Rev. Arthur L. Kirkland||

    I developed additional sympathy for conservatives last night, while watching a half-hour or so of a country music awards show.

    If I had to settle for current country music, Kirk Cameron, 'rasslin, Chuck Norris, the 700 Club, Chachi, televangelists, Pat Boone, and the Greg Gutfeld show for entertainment, I'd be cranky and disaffected, too.

  • James Pollock||

    You forgot about Tim Allen. Poor, oppressed by liberal Hollywood, Tim Allen.

  • Eddy||

    "...I'd be cranky and disaffected, too."

    If this is what the Rev is like when he's *not* cranky and disaffected, I'd hate to see him when he is.

  • Rev. Arthur L. Kirkland||

    It is reported that Roy Clark has died.

    If country music had more Roy Clarks, Glen Campbells, and Willie Nelsons, and no Kenny Chesneys, Luke Bryans, Jason Aldeans, and Florida Georgia Lines, country music would not deserve derision.

  • Lee Moore||

    I think Christianity is a reasonable analogy.

    Originalists differ because originalism is incompletely specified. Further specification reduces vagueness, but creates schism. By now, as original intenters are more or less extinct, originalism nests as a further specification of textualism. Textualism is even more incompletely specified than originalism (perhaps analogous to monotheism) but it is not so vague that it cannot be distinguished from other rival religions such as intent, or living constitutionalism.

    The fact that originalism requires further work to settle on more detailed specifications that originalist scholars can coalesce around does not mean that it is worthless at all. Even in incomplete form it greatly constrains the range of answers that an honest judge can arrive at. The religions of intent and living constituionalism are, by compariosn, unbounded and so far more exposed to judicial hubris.

  • Alpheus W Drinkwater||

    I think this is a good point, and agree that Prof. Segall's criticism goes too far. But I wonder what your response would be to the argument that originalism ignores the deliberate textual choice made by the framers, making the language of some clauses fully determinative (e.g. 2 Senators per state) while others just frame a value set that could change over time (e.g. no cruel or unusual punishment).

  • James Pollock||

    With 0 surviving Founders to check with, everyone's understanding of what the Founders "originally" intended is filtered through their own imaginations, and said imaginations have wildly different contributing factors. This is why the question "Is (x) cruel and unusual, as intended by the Founders?" can produce a broad spectrum of answers, ranging from "what? No, of course not", shading to "absolutely not", through various shades of "maybe", all the way to "yes, absolutely".

  • Lee Moore||

    the language of some clauses fully determinative (e.g. 2 Senators per state) while others just frame a value set that could change over time (e.g. no cruel or unusual punishment)

    That just means that the framers chose to use more or less vague expressions in different places. The vaguer the expression, the greater the set of possible answers falling within the four walls of the expression. Originalism makes no claim to eliminate the interpretive problem of vague laws, it simply constrains the answer to within the original meaning of the vague expression.

    So : "cruel and unusual punishment." "and" requires conjunction. So whatever we think of the admittedly vague words "cruel" and "unusual" we require a conjunction. Thus a cruel but usual punishment is not forbidden. And what people think falls within the class of "cruel" punishments may change over time, as a result of greater understanding, compassion, or merely squeamishness. But that doesn't imply the word "cruel" has come to mean something different.

    The United States of America covers very different turf from what was covered in 1800. But the words still mean the same thing. The Junior Senator from Arkansas may be a different person from whoever it was in 1940, but the words "the Junior Senator from Arkansas" still carry the same meaning as they did in 1940.

  • Sarcastr0||

    I learned in law school, and have found it a system that always work for me, that there is textualism, originalism, intentionalism, purposivism. Most 'theories' are a mix of these four, with their actual names being more branding than anything. e.g. a lot of originalism starts with textualism, and uses originalism in the case of ambiguity. Or Scalia who was originalist except when he was intentionalist.

    I myself like living textualism, wherein the definitions of words update as our understanding does (e.g. women are people, equality includes homosexuals, etc) with SDB defined by purposivism, per Breyer.

  • James Pollock||

    "Scalia who was originalist except when he was intentionalist."

    Scalia was originalist except when originalism produced results he didn't like.

  • Sarcastr0||

    All too often, that seems like the case. But he also had more institutional and procedural concerns as well. Hence 'faint-hearted orignialism' was born.

  • Eddy||

    Which originalists have claimed that under the original understanding, women are not people?

    If you want to see an evolution in the definition of personhood where females are concerned, consider the modern, evolved understanding that female babies aren't people if they're in the womb.

    And if gays are covered by equality, presumably that means their rights *and* responsibilities are equal. Including the obligation to bake cakes for people whose views on sexuality they strongly disagree with.

  • Eddy||

    Also, the 19th Amendment (votes for women) was adopted through the Article V process.

    The modern, evolving understanding of equality by which the military draft has to extend to women (especially since otherwise a draftee could simply call himself a woman and get exempt), is a product of living constitutionalism.

  • James Pollock||

    "The modern, evolving understanding of equality by which the military draft has to extend to women"

    The modern understanding of the military draft is that we don't have one. We staffed our last several wars with volunteers (some outsourced).

  • Eddy||

    So what have young men been registering for all this time?

  • EscherEnigma||

    Hopefully a scrip of "virtue signaling".

  • James Pollock||

    "So what have young men been registering for all this time?"

    Social Security.

  • Sarcastr0||

    The history of abortion and personhood is not what you think it is. Certainly political personhood isn't what you think it was back in the day, including as understood by the Founders of the Fourteenth. Hence the Nineteenth.

    Do you think the cake cases are about a Constitutional requirement?

  • Eddy||

    "Do you think the cake cases are about a Constitutional requirement?"

    The 1st Amendment, protecting the free exercise of religion?

  • Sarcastr0||

    ...you think the first mandates gays have...the obligation to bake cakes for people whose views on sexuality they strongly disagree with? I think I'm not understanding you correctly.

  • Eddy||

    They have the same right to religious freedom as the traditionalist objectors.

    If the First Church of Gay-Bashing wants to celebrate its 50th anniversary, with the theme "50 years of upholding real (man/woman) marriage!" then a gay baker has the same right as any other religious objector to find the event religiously objectionable and refuse to help in preparing for the event.

  • Sarcastr0||

    So you're not talking about responsibilities for gay people at all, but rather rights of religious people.

    I'll save the collision between anti-discrimination laws and free exercise for another thread.

  • James Pollock||

    "I'll save the collision between anti-discrimination laws and free exercise for another thread."

    Chicken.

    It's not complicated.
    If your religion requires you to not bake cakes for people, then the profession of baker is not for you. Just like if your religious requires you to not touch meats made from cloven-hoofed pigs, then short-order cook at the barbeque place would be a bad place for you to work. If your religion can't do any work on the Sabbath, then maybe don't volunteer for weekend shifts.

    The number of people who TRULY don't want to bake cakes (for anyone) who are nonetheless forced to bake cakes consists of... well, can't think of anyone, really.

    It's not about religion. It never was about religion. It's about using religion as an excuse for something the person wants to do, but isn't allowed to do.

  • Eddy||

  • Brightly||

    "If your religion requires you to not bake cakes for people, then the profession of baker is not for you."

    Your Religion or your livelihood? Does that honestly sound right to you? That sounds like a facial violation of the 1A to me.

    "Just like if your religious requires you to not touch meats made from cloven-hoofed pigs, then short-order cook at the barbeque place would be a bad place for you to work."

    Lets not pretend that this cake issue has been around longer than most bakers where people could have entered this into their career determining calculus beforehand. Lets also not pretend that being a hand on a hog farm is like being in a bakery where what, statistically 2-4% of your customers are going to be gay and a fraction of those are going to be look for a wedding cake at any given time? I agree, a nurse that goes to work in an abortion clinic has no room to complain about the morality of abortions against her religious beliefs, but like a hog farm this is intrinsic to the place of employment. If you are looking for justification to extending that to every incidental, you are not going to find it in your line of thinking.

  • Brightly||

    "It's not about religion. It never was about religion. It's about using religion as an excuse for something the person wants to do, but isn't allowed to do."

    I don't know. People looking to use their "religion as an excuse" aren't going to be committed enough to stare down the State and go through what some of these bakers have gone through doing. Also, why does religion have to be a reason? I find the reasoning that these are my two hands and I don't have to use them for any economic exchange I don't want to participate in compelling enough.

    Don't like it? Protest. Boycott. Find another baker.

  • Eddy||

    But enlighten me on how the term "person" in the Fifth and Fourteenth Amendments doesn't include female human beings under the original understanding (I didn't refer to political personhood, that's dealt with in the 19th amendment and the Art. V process).

  • Eddy||

    So even if your original remark about "women are people" mean *political* personhood, your argument is unpersuasive, because the amendment process (19 Amendment) did the necessary evolving for us, without the need for living-constitutionalist jurisprudence.

  • Sarcastr0||

    I'm thinking of the history of the ERA and post-ERA's failure jurisprudence regarding the 14th.

    Unless you're arguing the 19th voting right had a bunch of penumbras and emanations not in the text, you either need to evolve the meaning of the language in the 14th or allow that women aren't as equally protected as all that.

  • Eddy||

    So what is *your* definition of personhood for women? Then I can have a better idea of what we're discussing?

    You gave "women are people" as an example of an evolved understanding resulting from your interpretation of the Constitution, and apparently you thought that before this new understanding women weren't constitutional persons.

    Could you clarify?

  • Eddy||

    Let me ask - at what point were women not considered people in the eyes of the law, and at what point did they become people, according to your understanding? And under originalism, would they still be non-people?

  • Sarcastr0||

    The personhood of women in our society is a continuous and continuing process. It's not some discontinuity wherein they 'leveled up.'

    So what do you think? When did women get covered by equal protection? Was it the 14th but no one at the time realized it? 19th? Was it never, and we need the ERA to make that jurisprudence legitimate?

  • EscherEnigma||

    Couldn't vote, couldn't own property, had no legal right to her own paycheck (went to her husband), could be married off against her will, legal marital rape...

    Regardless of how you want to define "legal personhood", it's pretty evident that women's "legal personhood" was not equivalent to that of a man's.

    And none of that was unconstitutional at the time. So unless you're buying into Somin's "originalism" wherein "original intent" includes "what they would have intended if they agreed with me", it sure seems like rights given to "people" weren't equally extended regardless of sex.

  • Eddy||

    "Couldn't vote"

    ...addressed in a campaign which culminated in the 19th Amendment, living constitutionalism had nothing to do with it.

    "couldn't own property,"

    ...addressed in various married women's property acts, some of them even before the 19th Amendment. No living constitutionalism needed.

    "had no legal right to her own paycheck (went to her husband)"

    ...again, addressed by legislation, not by living constitutionalism

    "legal marital rape"

    To the best of my understanding, this was addressed by legislation, too.

    "could be married off against her will"

    ...and I'd love to see examples of living-constitutionalism protecting women from forced marriage.

    And in short, I'd like to see examples of women made more person-y by the power of living constitutionalism.

  • EscherEnigma||

    And in short, I'd like to see examples of women made more person-y by the power of living constitutionalism.


    Meh.

    I was mostly responding to "But enlighten me on how the term "person" in the Fifth and Fourteenth Amendments doesn't include female human beings under the original understanding"

    I concede I could have threaded it better.

  • Eddy||

    Obviously, in 1791 and 1868, women were legally regarded in many ways as dependent persons - especially married women - but a dependent person is still a person.

    For example, under the Due Process Clause women couldn't be convicted without a trial, any more than men could.

    As to equal protection, historically the degree of equal protection afforded women, qua women, vis-a-vis men, was as a matter of original understanding fairly minimal.

    Nevertheless, reformers soldiered on, and got married women's property acts, etc., and the 19th Amendment.

    They made a bid for a federal Equal Rights Amendment but (unlike some of the state-level efforts), this was not successful. And the awkward fact is that some women actually *opposed* the Equal Rights Amendment. Perhaps their personhoods hadn't been fully developed?

  • James Pollock||

    "the awkward fact is that some women actually *opposed* the Equal Rights Amendment. Perhaps their personhoods hadn't been fully developed?"

    Or perhaps they considered that THEIR personal, individual circumstances wouldn't be improved, and voted accordingly.
    One of the arguments advanced against the ERA was that passage of the ERA would do away with alimony for dependent spouses.

  • Eddy||

    "When did women get covered by equal protection?"

    Slow down, you talked about a fundamental insight that "women are people," indicating that the more decisions the Supreme Court hands down in the name of anti-sex-discrimination, the more peopl-y they get.

    So even with equal voting rights, guaranteed by the Constitution, women were not fully people.

    Did they become more people-ish when the Supreme Court said the Citadel should admit women? What about when the Supreme Court required a state nursing school to admit men?

    Are they still awaiting the culmination of full personhood-the sex-neutral military draft?

  • Sarcastr0||

    "nor shall any State [...] deny to any person within its jurisdiction the equal protection of the laws"

    That's the personhood I'm talking about. It's not some idiosyncratic personhood I made up. And I'm holding who is included in that, and what that equality bit means, have evolved as our society and it's definition of those terms have evolved.

    You ask me when full personhood attaches, as though I'm the one requiring a legal procedure. I'm not saying there's some arbitrary threshold of full personhood, I'm saying there's an ongoing dialogue and the terms in the Constitution are not dead and from the 1700s, they reflect that dialogue in as much as moments of consensus are captured in definitions.

    So we once again return to the question - if women are indeed equal before the law, you are the one whose paradigm has a discontinuous theshold in it. When do you hold such happened? What legal procedure occurred, for you seem to argue language follows legality?

  • Eddy||

    As you can see above, I objected to the idea that the evolving-constitution folks had a monopoly on recognizing woman's personhood.

    "if women are indeed equal before the law, you are the one whose paradigm has a discontinuous theshold in it. When do you hold such happened? What legal procedure occurred, for you seem to argue language follows legality?"

    If you take away the "let's pretend the ERA was ratified" decisions of the U. S. Supreme Court, I suppose we'd live in a Handmaid's Tale dystopia where women can vote, but couldn't be admitted to the Citadel, men couldn't be admitted to certain state nursing programs which were reserved for women, and the states had the power to pass various sexist laws subject to accountability from the voters, not the courts.

    Is this what you mean by lack of full personhood?

  • Eddy||

    Maybe you can point to the sexist laws which, practically speaking, would exist (i. e., not be repudiated by the voters) in the absence of living constitutionalism.

    And could you specify whether the male-only draft is constitutional?

  • EscherEnigma||

    Maybe you can point to the sexist laws which, practically speaking, would exist (i. e., not be repudiated by the voters) in the absence of living constitutionalism.


    Sodomy laws.

  • James Pollock||

    "Let me ask - at what point were women not considered people in the eyes of the law"

    Depends on what aspect of personhood is under discussion.
    You're wanting to define "legal personhood" as "having any right accorded to a person" whereas you're arguing with someone who wants to define it as "having all the rights accorded to a person" and for most of our history, the actual circumstance was somewhere in between those two endpoints.

  • James Pollock||

    "the amendment process (19 Amendment) did the necessary evolving for us, without the need for living-constitutionalist jurisprudence."

    What's really amazing is that the 19th amendment did this evolving in some states/territories as much as 50 years before the amendment was even ratified.

  • Eddy||

    Yes, some states adopted women's suffrage before the 19th Amendment. If this somehow helps the cause of living-constitution jurisprudence, go ahead and avail yourself of this concession.

  • James Pollock||

    "go ahead and avail yourself of this concession."

    I'm not sure it advances the cause of living-constitutionalism, but your concession that you were full of shit is noted anyway.

  • Eddy||

    Sarcastr0's original point, to which I was responding, was this:

    "I myself like living textualism, wherein the definitions of words update as our understanding does (e.g. women are people, equality includes homosexuals, etc) with SDB defined by purposivism, per Breyer."

    Later on he talked about political personhood or what have you. Anyway, he was discussing the evolution *of the Constitution,* not the evolution of state laws, and my reply was meant accordingly.

    But I think this should be obvious to the intelligent reader in any case.

  • Sarcastr0||

    You still haven't answered when you think gender got included in the EPC.

  • Eddy||

    That's because I don't know what you're talking about.

    To put it in modern terms, the best way to view original public meaning would be something like rational-basis deference for sexist laws.

    But even before the 19th Amendment, most states rose above that floor and - without the help of living textualism or what have you, provided greater legal protection for women.

    Then the 19th Amendment ensured that throughout the country (not just in states which chose to), women would have equal voting rights, so they could use their votes if they thought the laws were too sexist.

    The Republicans promoted the Equal Rights Amendment, but Democrats threw a wrench in the gears, as did many progressive activists, because abolishing sexist laws would mean abolishing women-only minimum wages, working-hour laws, and other "benevolent," "protective" legislation.

    And don't forget the ultimate in equal rights - the unisex draft.

  • Eddy||

    Did the Fourteenth Amendment adopted antisexism principles? Not to feminist leader Elizabeth Cady Stanton, who at the end of 1868 opposed a "Manhood Suffrage" amendment.

    "...if woman finds it hard to bear the oppressive laws of a few Saxon fathers, of the best orders of manhood, what may she not be called to endure when all the lower orders, natives and foreigners, Dutch, Irish, Chinese, and African, legislate for her and her daughters?...

    "Think of Patrick and Sambo and Hans and Yung Tung who do not know the difference between a Monarchy and a Republic, who never read the Declaration of Independence or Webster's spelling book, making laws for Lydia Maria Child, Lucretia Mott, or Fanny Kemble. Think of jurors drawn from these ranks to try young girls for the crime of infanticide.

    "Would these gentlemen who, on all sides, are telling us 'to wait until the negro is safe' be willing to stand aside and trust all *their* interests in hands like these?"

    ("Manhood Suffrage," December 24, 1868, in Ann D. Gordan, ed., The Selected Papers of Elizabeth Cady Stanton and Susan B. Anthony, Volume II, New Brunswick, NJ: Rutgers University Press, 2000, p. 195-96)

    She sure didn't seem to think that the 14th Amendment *already* ensured women equal rights.

  • Eddy||

    Ann Gordon, not Gordan

  • Sarcastr0||

    So under your prefered flavor of Constitutional interpretation, there would be no Constitutional protections women, it'd all be whatever the States felt needed to be done.
    ==================
    Did you read my original post? Yeah, the 14th didn't in 1868, but our understanding of who is a person and what's discrimination isn't what it was in 1868.

  • Eddy||

    If you mean that "we" have adopted a 19th Amendment to the US Constitution (in addition to the states which acted independently to grant woman suffrage) indicates that the constitutional meaning of equality has to that extent evolved. If there's a sexist law, women don't have to ask men (judges or otherwise) for relief, they can just go to the ballot box.

    Then some states adopted ERAs and Congress proposed a federal version, but it failed. Which didn't stop the Supremes from acting *as if* the ERA had been ratified. Which begs the question of what the Article V process is for.

    So, going back to my earlier question, what *politically feasible* sexist laws (remembering that women can vote on the same terms as men) do the courts need to protect us from?

    I suspect the examples you will cite will be instances where female voters as well as male voters are divided. Which calls into question the idea that your side has a monopoly on believing women to be people.

    That's bumper sticker logic, not constitutional analysis.

  • Sarcastr0||

    I reject your question, because it's irrelevant. For political feasibility to come into play completely misaprehends the purpose of Constitutional rights.

    Constitutional rights exist specifically as a bulwark against what's politically feasible; for when relying on 'no one will do that' isn't enough.

    The Supreme Court (not the Warren Court, btw) didn't just turn around and immediate adopt the ERA judicially - it took lawyers arguing marginal cases and absurd results to finally convince the Court that it no longer made sense for 'person' in EPC not to include women, because by now women had claimed an undeniable political personhood.

    And you do know women can support sexist things, right? Some blacks argued for Jim Crow as well.

  • Eddy||

    "And you do know women can support sexist things, right? Some blacks argued for Jim Crow as well."

    Just as I suspected, the false consciousness argument.

    Yes, there's such a long record of black people voting for Jim Crow. /sarc

    But seriously, why won't you tell me what you consider the sexist equivalent of Jim Crow.

    And as for "they'll never do that," why can't I imagine a scenario where the Court reads the 19th Amendment out of the Constitution and declares that husbands have a constitutional right to rape their wives? I mean, if we can never say never...

  • Eddy||

    I'll concede you can find black people arguing that since Jim Crow can't be helped, they may as well adapt to it.

    I can't think of an example of Jim Crow coming up for a vote and black voters endorsing it.

    That's because part of Jim Crow involved disenfranchising black citizens. And the Supreme Court, using living textualism, allowed various shifts and dodges by which the Southern states could avoid the 15th Amendment.

  • Sarcastr0||

    There were black confederates. Not many, but enough. Uncle Tom has a fraught legacy within the black community, but it is not an imaginary concept, nor is it limited to slavery.

    You need an intentionalist analysis if you're going to ban poll taxes and grandfather clauses etc. Textually, those laws are fine.

    I'm not making a false consciousness argument - that would be if the vast majority of women wanted to repeal the 19th.

    Look up the history of sex discrimination in the law. here.

  • Eddy||

    Finally, albeit indirectly, you've given a concrete example of the sex-discrimination equivalent of slavery and Jim Crow.

    Here it is, from your link:

    "In 1973, Sharron Frontiero challenged a rule giving male airmen automatic housing benefits for their wives while women could do the same only by proving their husbands were dependent on them."

    Seriously? This is what you're comparing to a racial caste system and enslavement of human beings?

    "You need an intentionalist analysis if you're going to ban poll taxes and grandfather clauses etc. Textually, those laws are fine."

    No, poll taxes are *not* fine in federal elections, because that's banned in the 24th Amendment. Whether they're constitutional for state elections depends, textually speaking, on whether they're imposed on account of race, contrary to the 15th Amendment.

    Grandfather clauses were clearly imposed on account of race, a violation of the text of the 15th Amendment - I'm not sure why you'd dispute that.

  • Eddy||

    And when did I deny the usefulness of intentionality analysis in dealing with an amendment banning voting discrimination "on account of" race.

    I alluded above to the Supreme Court's ability to ignore that very language, based on their own living-constitutional attitudes.

  • Eddy||

    Here we go: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State *on account of* race, color, or previous condition of servitude." (emphasis added)

    So if the vote is limited for race-discriminatory reasons it's imposed "on account of race."

  • Sarcastr0||

    Saying equal protection applies to both housing discrimination and Jim Crow doesn't mean I'm making a moral equivalence.

    Poll taxes were fine until the 24th, because the Courts used textualist formalism, not some more dynamic framework.

    Your analysis about the reasoning of legislatures about grandfather clauses and poll taxes and whatnot requires some functionalist analysis. Indeed, sounds like you're into some animus doctrine to me!

    I mean, I agree with you, but calling that originalism is gonna be tricky.

  • Eddy||

    I think it comes down to the term "on account of," which I kind of assumed meant because of, whatever formalistic rhetoric they use in carrying out their discrimination.

    I also think that the living-constitutionalism here is inserting "as long as you're not too blatant about it" after the text of the amendment, which is what many of these Supreme Court decisions seemed to do. Though at least they saw through the grandfather clauses.

  • Eddy||

    "Saying equal protection applies to both housing discrimination and Jim Crow doesn't mean I'm making a moral equivalence."

    Saying that (for example) military wives who wish to be presumed dependent, so they can get government housing on military bases, is like black people wanting to be enslaved or Jim Crowified, suggests a moral equivalence.

  • Sarcastr0||

    Using the same part of the constitution does not mean moral equivalence.

  • Sarcastr0||

    'I assumed'
    'seemed to'

    Do you see how far off 'originalism is obvious and default' you have strayed?

  • Eddy||

    You're thinking of someone else. My view is originalism - or any system which seeks to reserve the amendment process to Article V, by whatsoever name you call such a system - is less arbitrary than openly seeking to "evolve" the constitution in light of "our" insights.

  • Sarcastr0||

    false consciousness

    I just want to give you props for knowing this fallacy. Too often I see people talking about the Democratic Plantation, or dismissing Trump-supporting women.

  • bernard11||

    Which originalists have claimed that under the original understanding, women are not people?

    Well, lots of them, no?

    Originalists routinely argue that the 14th reference to "persons" does not include women.

  • Eddy||

    OK, I was thinking more in terms of specific names rather than a generic "lots."

  • bernard11||

    OK. Antonin Scalia.

  • Eddy||

    OK, when did he say it?

  • swood1000||

    Originalists routinely argue that the 14th reference to "persons" does not include women.

    No, women were "persons" under the 14th amendment, and so for example couldn't be deprived of life, liberty or property without due process of law. But the 14th amendment was not understood to prohibit discrimination on the basis of sex.

  • James Pollock||

    "consider the modern, evolved understanding that female babies aren't people if they're in the womb."

    First, find me one person... just one... who espouses this philosophy.

    Straw men are full of straw.

    "if gays are covered by equality, presumably that means their rights *and* responsibilities are equal. Including the obligation to bake cakes"

    Nobody is obliged to bake cakes. If you don't want to bake cakes, then don't bake cakes, and that's the end of the story. Nobody is going to bust into your home, drag you out of bed, and prod you with bayonets until you start baking.

  • Eddy||

    But if a gay person *chooses* to be a baker, (s)he cannot discriminate against a would-be customer simply because that customer is the Church of No Gay Rights and it wants to have an anniversary dinner with the theme "man+ woman = the only true marriage"?

  • Eddy||

    ""consider the modern, evolved understanding that female babies aren't people if they're in the womb."

    "First, find me one person... just one... who espouses this philosophy."

    What about the Roe v. Wade decision:

    "...the word "person," as used in the Fourteenth Amendment, does not include the unborn."

  • Lee Moore||

    consider the modern, evolved understanding that female babies aren't people if they're in the womb.

    "...the word "person," as used in the Fourteenth Amendment, does not include the unborn."

    Yeah, but what they meant to say was the 14th Amendment does not apply to the unborn, because they are not "persons born.... in the United States."

    So "as used in the 14th Amendment" refers to the fact that there's a second condition. You have to be a person AND you have to be born.

  • Eddy||

    Whatever they *meant* to say, I met James Pollock's challenge to find one person who believes that female babies aren't people in the womb.

    The Roe opinion notes the use of "person" in many non-14th-Amendment-related contexts and tries to argue that *none* of these references applies to the unborn.

  • James Pollock||

    "Whatever they *meant* to say, I met James Pollock's challenge to find one person who believes that female babies aren't people in the womb."

    No, you didn't. To meet the challenge to find even one person who "believes that female babies aren't people in the womb", you need to find even one person who believes such. The 14th amendment is not a person, the Roe v Wade decision has the opposite holding to what you're looking for, and your strawman is still all straw, and no man.

  • Eddy||

    So you refuse to take legal terminology seriously, on a legal blog?

    "The 14th amendment is not a person"

    Then who wrote it, aliens from Star Trek?

    Carry on, Klingon.

  • Brett Bellmore||

    The most devastating criticism you can make of originalism, it appears, is that it, in practice, it has started to resemble living constitutionalism. And to the extent that's true, it IS devastating.

    But it's inherently always going to be more true of living constitutionalism, which is less a method, than a determination that, no matter what the words or history might be telling you, you ARE, come Hell or high water, going to find that the Constitution means something you like. Everything beyond that is just a toolbox full of excuses for doing that.

    But, yes, there has been some deterioration in originalism, due to some originalists giving in to the same temptation that living constitutionalism tells you is a virtue. And, due to a number of living constitutionalists boring in to subvert originalism from with in. (I'm looking at you, Jack Balkin!)

  • Sarcastr0||

    But originalists, come Hell or high water, all seem to find they like the Constitution they end up with as well.

    Neither side has perfected their Constitution to exactly conform to their ideal policy space, but both sides accuse the other of having done so.

    But only one side seeks to argue that the other side is completely illegitimate, done entirely in bad faith by liars.

  • Brett Bellmore||

    Except for those parts we don't like, but still acknowledge, like the 16th and 17th amendments.

    But there is some truth to what you're saying: Originalism is the default mode of interpretation, it just reads the Constitution in the same way you would read any old document you wanted to know the meaning of. You need a strong motive to not be an originalist, because it IS the default.

    You only become a living constitutionalist if originalism produces answers you really hate.

    So it is only natural that originalists are more comfortable with the Constitution's actual meaning than living constitutionalists.

  • Rev. Arthur L. Kirkland||

    You only become a living constitutionalist if originalism produces answers you really hate.

    Similarly, you only become an originalist (or invent originalism) if American progress produces a society you really hate. All of this damned reason, tolerance, science, liberty, diversity, education . . .

  • Sarcastr0||

    Yeah, the Constitution doesn't have Universal Basic income in it either. And no right to vote, nor right to education. And it has the electoral college, and an anti-majoritarian Senate.
    The right doesn't have a monopoly on Constitutional beefs that they can't read out.

    How is your claim that originalism is the default not just question begging? That is not clear at all from legal history.

    So it is only natural that... Love it when you follow question begging with a QED the other side stinks flourish.

  • Bob from Ohio||

    "anti-majoritarian Senate."

    JFC. Such bellyaching

    You guys had 60 seats less than a decade ago. You lose some elections and Senate is BAD!!!
    .

  • Sarcastr0||

    Hey, I'm personally pretty into it, Bob (I also like the electoral college). Just noting stuff in the Constitution that's as inconvenient to the left as Brett's thesis that only the right deals with a nonideal Constitution under their preferred jurisprudential framework.

  • Rev. Arthur L. Kirkland||

    One is entitled to like or dislike our system's structural amplification of rural votes, but it seems impossible to construct a persuasive argument that America does not engage in affirmative action for backwater voices (in the Senate and Electoral College).

  • Brett Bellmore||

    "How is your claim that originalism is the default not just question begging? That is not clear at all from legal history."

    It's how the Constitution was interpreted up to the early/mid 20th century. It's just that originalism didn't need a name until making it up as you went along started to be promoted as a legitimate way to interpret the Constitution.

  • Sarcastr0||

    You keep saying that, but I don't think it's so. Of course, one doesn't study many cases before the 20th century, so the sample size is small. Was Marbury originalist? It's more a functionalist argument.

    Digging back into the mists of memory (and a bit of wikipedia) I recall McCuloch, Schenck, Martin v. Hunter's Lessee...

    Eerie overruled Swift as being unconstitutional under a textualist doctrine, right? Certainly that implies Swift wasn't a strict constructionist case.

  • yoyo||

    I would defend the view that originalism is the default mode of interpretation.

    Let's say Moses accurately captured a verbal pronouncement by God involving ten commandments that all human beings have to live by. And suppose those words are carved in a certain stone. And suppose that successfully living according to those commandments will be rewarded with eternal bliss. And failure to do so will be punished with eternal damnation.

    Now you are faced with the task of making sure that you live up to the commandments. To ensure you live according to the commandments you will have to ensure that you understand them. And to ensure that you understand them you'll surely have to grasp their content as they were communicated at the time Moses carved them into stone. Whatever archaisms, turns of phrase, etc. may have meant at the time they were put to stone is precisely what you would want to follow. You would want to follow the meaning of the words at the time of expression because you would want to follow God's will at the time of expression.

    Hopefully the religious elements here will not distract from the main point - that one just assumes original public meaning is the meaning that matters when interpreting documents. I use the religious example because it makes the decision life or death. But one could make the same point using a grocery list, say.

  • Sarcastr0||

    Surely God, knowing all, would know that meaning changes, and compensate for that in his revelation to Moses.

  • Sarcastr0||

    Point being that assuming that Constitutions are communicating in the same way a law is may not be supported. For one thing, the language used is quite different. Less precise. Which to me implies some intent for interpretive discretion.

  • yoyo||

    (A) Being my hypo, I can describe it however I want. So God can know as much or as little as I like.

    (B) Knowing that meaning changes, God would surely reason that no one would be dumb enough to follow the words embodying his command according to meanings they didn't bear at the time they were uttered.

  • James Pollock||

    "(A) Being my hypo, I can describe it however I want. So God can know as much or as little as I like."

    As the word was originally used, it had a lower-case g, and tended to occur in the plural.

  • SimonP||

    Ha! Okay, let's see how this works with a grocery list, then. Here's a short one:

    - Bread
    - Milk
    - Eggs
    - Cereal

    What do you get at the store?

  • Sarcastr0||

    You have well proven grocery lists are different from Constitutions.

    Though you did leave me an opening with your lack of quantities on that list. I guess I'll have to get that from whatever my contemporary context is, hehe!

  • SimonP||

    Sacrcastr0: I'm not responding to you; I'm intending to respond to yoyo's confident assertion that reference to an original public meaning is just how we would interpret, by default, a set of commands (which he, incorrectly, takes a Constitution to be).

  • yoyo||

    That grocery list is kind of a toughie. But the toughiness of the list arises not from interpretive choices but just from the roughness of the list. How much? What kind? Etc. The method of deciding the answer to those questions still seems to be obvious. We should decide according to what "milk" means at the time of writing. If it should come to mean what "saliva" is used to mean today, and we go shopping for saliva, we'd be messing up.

    Incidentally give me an example of a provision in the Constitution that aren't commands - at least in the broad sense of activities people shall/may/shall not do.

  • SimonP||

    That grocery list is kind of a toughie.

    It's a perfectly ordinary grocery list. The point I'm making, to you, is that we have no problem with such a list, because we ordinarily bring resources beyond the text of the list to understand its "meaning." The "default," in other words, is not "original public meaning" interpretation. It's a little bit that, but it's a lot of other things, too - including a kind of rudimentary "living constitutionalism."

  • James Pollock||

    " We should decide according to what "milk" means at the time of writing."

    Easy. Milk is the fluid that female mammals produce to feed their young. That's a meaning that goes back before the Founding. Sure, nowadays it apparently also means some other kinds of fluids that kinda, sorta have similarities to various mammals' output, but we can easily distinguish that as a secondary meaning.

    Oh, no, wait... Milk is a noun, but also a verb, and in the verb form, it has a substantial number of figurative uses that don't involve female mammals at all. Uh-oh.

  • Sarcastr0||

    I know, I couldn't resist that beautiful slow pitch, though. I like to think it was some food for thought for orginalist onlookers!

  • Lee Moore||

    let's see how this works with a grocery list, then. Here's a short one:

    - Bread
    - Milk
    - Eggs
    - Cereal

    What do you get at the store?

    How about bread, milk, eggs and cereal ?

    Since you've told us it's a grocery list (and in any event, even if we'd found the list untitled, we'd deduce it was something like a grocery list from the four items on it) we'd get the sort of bread, milk, eggs and cereal you find in grocery stores. We wouldn't wonder whether "bread" meant money, or whether milk might be a verb, or whether eggs might refer to snake eggs, or whatever. Where did the idea arise that textualism, and its baby girl, originalism, are prejudiced against context ?

  • Sarcastr0||

    You're strawmanning so hard right now, Lee.

    No one supports whatever imaginary unfettered jurisprudence you're making up.

  • SimonP||

    Lee:

    How about bread, milk, eggs and cereal ?

    It sounds like you have about as much experience buying groceries as Trump does.

    What kind of bread? The kind that's good for sandwiches, or the kind that's good for french toast? Do you buy white or multigrain? Do you buy the store brand or a fancy organic brand? Do you decide based on what kind of bread most people would buy at the store, or do you decide based specifically on your knowledge of your spouse's preferences? Do you think consider the purpose of the list, or of why "bread" might have been included? The questions would be similar for the other items on the list.

    It's not just a question of "context." My point is that when we ordinarily establish the meaning of any given text - including one that putatively "commands" us to do or abstain from doing a particular thing - we draw on resources well beyond the "original public meaning" of the text, including our knowledge of the author's purposes, intents, and even private meaning.

  • Lee Moore||

    What kind of bread?

    Nobody disputes that a text can map to more than one possible meaning. "Bread" includes bready bread and money. The context - a grocery list - tells us we can ignore money and concentrate on bready bread. But there are many types of bready bread. So if we know what kind of bread grandma likes, we go outside the text and select "intent" as our way of deciding at the next level of resolution.

    The point of originalism is not to guarantee one answer that solves all interpretative questions. It is to solve a particular type of question. If the text, including reference to context, provides us with several possible answers; are we getting multiple answers because the text currently means something different to what it meant when the list was written ? If so, exclude the current meaning. We may still be left with several possibilities after that exclusion.

    So if, for example, the list was written some time ago and at that time "bread" was used exclusively for white bread; "gullymush" was used for brown bread and "nargfargle" was used for all types of bread then originalism tells us to go for white bread not brown. But it still doesn't tell us what type of white bread to go for, we have to decide based on other considerations. But we do know, for sure, that if we pick brown bread we are wrong, even though brown bread falls within the current meaning of "bread."

  • James Pollock||

    "I would defend the view that originalism is the default mode of interpretation."

    It isn't. You don't have to care what the original intent was if the meaning of the text is clear without it.

    "Let's say Moses accurately captured a verbal pronouncement by God involving ten commandments that all human beings have to live by."

    You're choosing to ignore the amendment that there are only two commandments?

    Here's a question for you.
    Why should I, and a bunch of other people running around America in 2018, array our lives in accordance with what a bunch of dead people from 1789 or 1868 thought about how government should work? The fundamental thesis of the Constitution is that power of government comes from the people... the live people who make up the country currently, not the dead people who are buried six feet under it. The Founders in 1789 made a decision that they would abide the great evil of slavery in order to keep the country whole. The made the decision that women didn't need to participate in government to be represented by it. They made a lot of decisions... most of which I agree with, some I don't. But, in deciding how government works TODAY, why would a dead guy's opinion be worth more than mine?

  • Lee Moore||

    But, in deciding how government works TODAY, why would a dead guy's opinion be worth more than mine?

    Well, for that matter, why would the opinion of the majority of the people be worth more than mine ? I generally much prefer my opinion to that of other people.

    Moving on, you are playing "shift the demos." The Union is a voluntary union of States made under an agreement that allows each State to retain a "contractually" specified amount of sovereignty, and power over further collective decisions. The agreement did not dissolve the States and create a new Unitary State. The agreement provides that the dead people's rules can be changed by today's live people, but according to the terms of the agreement, which do not provide for a single nationwide ballot, winner takes all.

  • Sarcastr0||

    The contractual model of the Constitution is begging the question. There's no proof that was the model - indeed the language isn't at all like contemporary contracts were. And then there is McCullough which noted a Constitution is interpreted in special ways.

  • Lee Moore||

    yoyo : "I would defend the view that originalism is the default mode of interpretation."

    James Pollock ; It isn't. You don't have to care what the original intent was if the meaning of the text is clear without it.

    The meaning of the text is unclear, if the original meaning and the current meaning differ and you do not have a rule for determining which to choose. If you have a rule - such as "choose the original" - and if that leaves you with a clear meaning, you don't need anything more. Intent, original or otherwise, is irrelevant. But you have already used original meaning to get there.

    If you are still left with multiple original meanings, whether as a result of vagueness or ambiguity, you then need additional rules to decide between them, unless you are going to leave it entirely to the judge's arbitrary discretion (no thanks.) At that point, "intent" may loom as an unsatisfactory but perhaps unavoidable tiebreaker. But if you get that far, it's hard to see how you could use anything other than "original intent." It's difficult to see how "current intent" could be a thing, in relation to a text created in the past.

  • MatthewSlyfield||

    "But only one side seeks to argue that the other side is completely illegitimate, done entirely in bad faith by liars."

    I assume that you mean to imply that it's the originalists who do this. However, there are plenty of living constitutionalists how argue that "living constitutionalism" is the only method that is at all possible and anyone claiming to use a different method is being deceptive, which is effectively the same as saying "the other side is completely illegitimate, done entirely in bad faith by liars."

  • Sarcastr0||

    there are plenty of living constitutionalists how argue that "living constitutionalism" is the only method that is at all possible and anyone claiming to use a different method is being deceptive

    Not that I've heard? Certainly it's not the consensus. Whereas from Scalia on down, I've not heard anything other than bad faith legal realism intimation from originalists. Possible exception some on this blog.

  • MatthewSlyfield||

    "Not that I've heard?

    Really? Because I would say that's exactly what the piece by Eric Segall mentioned in the main article is doing.

  • Sarcastr0||

    I don't see anything about illegitimacy in his argument, just silly line-drawing academic-semantic foofery about what's a theory.

  • James Pollock||

    " there are plenty of living constitutionalists how argue that "living constitutionalism" is the only method that is at all possible and anyone claiming to use a different method is being deceptive"

    People who actually are living Constitutionalists tend to argue that "living Constitutionalism" is a toolbox, not a tool.

  • Lee Moore||

    Just so.

    With a screwdriver, you're pretty much limited to screwing in screws, and stabbing people. But with a toolbox ? Man, with one of those you can make pretty much anything.

  • SimonP||

    Brett, paraphrased: "However bad originalism has gotten, at least it's not as bad as this living constitutionalist strawman I dug up!"

    For me, originalism's core mission is doomed to failure because there is no way for originalist jurists to incorporate it into our body of constitutional jurisprudence without engaging in some "living constitutionalism" of their own - characterized, of course, as "returning to the original source," albeit after centuries of development and elaboration. And so, in practice, originalism will immediately submit to a kind of "living originalism," where what it means to be "originalist" is developed over time, subject to change and political shifts, etc., exactly like living constitutionalism is.

    Originalism is a method of constitutional interpretation that we can define and more or less abide by. But it fails as a descriptive or coherent normative theory.

  • Brett Bellmore||

    I actually agree that it's too late for originalism, with respect to issues the living constitutionalists have already won on. The train has already gone off the rails, and won't be just nudged back onto them.

    And you can see exactly what you describe going on; Practicing jurists and legal professionals shrink from being consistent about originalism, because from an originalist perspective, so much now established precedent is illegitimate.

    Because it IS illegitimate. But you don't accuse the emperor of being naked to his face, not if you want to keep a job in his court.

    However, I think it is fairly important to maintain that living constitutionalism is fundamentally illegitimate, even if it's too late for the Constitution. Because history doesn't end today, and we have to stop the rot from advancing, even if we can't restore the damage that's already been done.

    As originalists we should be consistent about this: Those precedents are illegitimate, even if they'll never be reversed. Because any originalism that tries to pretend they were legitimate is an originalism that's really living constitutionalism.

  • ||

    Not to mention that we'll need a framework with which to rebuild America once it collapses.

  • SimonP||

    I actually agree that it's too late for originalism...

    We do not agree on this. It's not "too late for originalism," because originalism, as a normative theory, is incoherent from the beginning.

    What I am saying is that you are engaging in "living constitutionalism" when you say that a vast body of law is in fact "fundamentally illegitimate" and that our present task must be "to stop the rot from advancing." That is precisely what living constitutionalism observes, predicts, and endorses.

    You're part of the problem, in other words. Not its solution.

  • James Pollock||

    "What I am saying is that you are engaging in "living constitutionalism" when you say that a vast body of law is in fact "fundamentally illegitimate" and that our present task must be "to stop the rot from advancing." That is precisely what living constitutionalism observes, predicts, and endorses."

    Circular.

    ANY theory of Constitutional interpretation will identify some body of law as fundamentally illegitimate. You get different selections as to what is "illegitimate" depending on which tool(s) you use for interpretation, but there is no scheme of Constitutional interpretation which will identify some body of law as unsupported.

    It's not unlike the way different people can read the exact same words written about Jesus' teachings and come away with wildly differing theologies. Each of those differing theologies supported by some individuals who assert that THEIR interpretation is the only true and correct ones, and all the others heresies.

  • SimonP||

    Circular.

    Nope. Feel free to describe how it's circular, if you can.

    ANY theory of Constitutional interpretation will identify some body of law as fundamentally illegitimate.

    Also, no. I have no idea why you think that's the case. Establishing that some part of currently-valid constitutional law is "illegitimate" is the particular bugaboo of originalists and their comparably dogmatic extremists. The notion is actually fundamentally absurd, from a legal philosopher and lawyer's perspective.

    It's not unlike the way different people can read the exact same words written about Jesus' teachings and come away with wildly differing theologies.

    Again, few people view disagreement over constitutional interpretation as comparable to religious disputes. That is very particular to the "originalist" camp.

  • ||

    And I agree on that. I always tell liberals that I don't care what percentage of people support something (like the anti-property Civil Rights Act) or whether law is "settled," my opinion of it won't change. They can force me to obey laws I think are wrong, but they can't force me to agree with them.

  • James Pollock||

    When you tell the liberals about your indomitable spirit of rebellion, I bet the wind just goes right out of them, right?

  • SimonP||

    There is little left to say to a person who declares themselves to be beyond the reach of reason.

  • apedad||

    Meh. . . arguing over titles and definitions is not really useful.

    It really comes down to the issue--some issues need to be addressed via penumbra and some can be addressed based on the actual ink on the actual parchment.

  • SimonP||

    There are a lot of howlers here, far too many for me to have the patience to address, given Reason's character limits.

    The basic, fundamental problem to this whole question is that most legal academics wholly lack any kind of rigorous philosophical training, so they end up debating "theories" and "methods" without even a clear grasp of what they're doing. As a consequence, a lot of the arguments legal academics make are more rhetorically plausible or persuasive than logically compelling.

    For instance, this post purports to defend originalism's being a "theory," but fails to establish what a theory is or should be. So there's frankly no way to tell whether Ilya even succeeds in the task he sets out for himself, arguing only that various things that are true about originalism don't disqualify it from being a "theory" - whatever that is. I guess we're just supposed to take his word for it.

  • SimonP||

    Segall isn't very clear about this, either, but he gets close to identifying the fundamental problem when he notes that originalists can't seem to agree whether they're talking about a normative or descriptive theory. Ilya waves this off as just another "disagreement" amongst competing originalists, but the question is fundamental to whether they agree at all on core principles. Whether originalism is normative or descriptive is essential to determining the merits of any purported originalist "theory."

    Similarly, Segall's point about originalism failing to provide any clear guidance on how to resolve so-called "hard cases" is not, as Ilya takes it to be, an ordinary observation that any method of constitutional interpretation will not fully contemplate all possible sets of facts and countervailing institutional considerations. The question is whether "originalism" as a "theory" provides us any particular standard by which we can assess a putatively "originalist" interpretation as either more or less successfully "originalist."

  • SimonP||

    Given the wide range of analyses - both descriptive and normative - that ostensibly can be based on an understanding of the "original public meaning of the constitutional text," it would seem that "originalism" provides us no such standard. Ilya would call all of it "originalist." But then it is no longer a systematic theory; it is just a label that loosely applies to a variety of descriptive and normative methods that are variously justified by scholars who disagree.

    Finally - as I said, the howlers are too numerous to address them all - the comparison to Christianity is illuminating in ways Ilya obviously does not recognize (again, see aforementioned complaint about the lack of exposure legal academics typically have to disciplines where analytical reasoning (in this case, systematic theology) is more finely-honed). While it is certainly true that all Christians necessarily must accept certain tenets that distinguish themselves from other faith traditions, this in itself does not mean that "Christianity" constitutes a "theory." Indeed, it is hard to do much theoretical work with those core tenets alone.

  • SimonP||

    That doesn't mean that Christianity lacks theory. Indeed, theory abounds in Christian systematic theology. But to get there, you have to supply a number of methodological standards and practices. It is not enough to say that the Bible is the inspired word of God; you have to come to some conclusions about how to interpret its original text, the relative importance of its constituent parts, the relevance and authority of patristic commentary as well as more recent interpretations by authorities. Once you have laid some groundwork on these questions, it becomes possible to develop, say, a theory of grace. But to say simply that Christ is the Savior is virtually empty. What does that even mean? We have no way of supplying import to the tenet that all Christians accept without getting our methodological bona fides in order. Which originalism still has failed to do.

  • Eddy||

    As long as a constitutional theory leaves the amendment process to Article V, it can call itself what it wants.

  • Michael Ejercito||

    An example of living constitutionalism is our Eighth Amendment jurisprudence, which relies on "evolving standards of decency" Trop v. Dulles, 356 U.S. 86 at 101 (1958)

    In practice, evolving standards of decency does not rely on acts of Congress, or public opinion polls, but the whim of judges.

  • apedad||

    Where do you think judges come from?

  • Eddy||

    The stork?

  • Bob from Ohio||

    Not from "acts of Congress, or public opinion polls" or do you need some remedial biology?

  • James Pollock||

    "Not from 'acts of Congress, or public opinion polls'"

    Half of Congress gets to advise and consent.

    "do you need some remedial biology?"

    If you're of the opinion that judges come from biology, you are DEFINITELY in need of some remedial biology.

  • ||

    Right. The idea that if 40 states decide to outlaw the death penalty then it's suddenly unconstitutional for the other 10 is a joke.

  • SimonP||

    Given that 40 states can decide to amend the Constitution, this is less self-evidently absurd than you seem to believe.

  • ||

    You don't really think that's equivalent, do you?

  • SimonP||

    Did I equate it?

    You said it is a "joke" for the constitutional notion of "cruel and unusual punishment" to vary in accordance with modern norms of criminal justice. In particular, you scoffed at the notion that just 40 states may, by their collective action, make it "unconstitutional" for the remaining 10 states to punish criminals in a specific way. My point, to you, is that this is precisely what the Constitution provides for, through the official amendment process. Accordingly, it isn't quite as far-fetched as you make it out to be.

    I appreciate that amending the Constitution and shifting a constitutional norm in a "living constitutionalist" sort of way are not the same kinds of processes. But that's not where the force of your comment derives from.

  • Krayt||

    ===Is Originalism a Theory? Is Living Constitutionalism?===

    Yes, but not in the way you, those whom you are discussing, or pretty much any other commentator's memespewing are thinking.

    The Costitution is to give a government while primarily stopping, or at least forestalling, collapse back to dictatorship AKA standard human existence.

    So...as theories, if they are theories of anything, they should be measured against encroachng dictatorship rather than against faceious valuations of various enabling workarounds of core constitutional values in support of stopping dicatatorship.

  • Sarcastr0||

    Kick ass conservative purposivist theory, and I mean that sincerely!

    Less sincerely, I expect it to be the new only legitimate method of Constitutional interpretation in about 20 years.

  • loveconstitution1789||

    If you are adding your notion of what the Constitution should say, then you're doing it wrong.

    Whatever the most simple and most restrictive for government meaning is and be done.

    If the US Constitution does enumerate a power to do something, then the federal government cannot do it.

    Social security, Medicare, Obamacare...all unconstitutional as they are not considered taxes but retirement schemes and health insurance schemes. Taxes are constitutional, schemes are not.

  • James Pollock||

    "If you are adding your notion of what the Constitution should say, then you're doing it wrong."
    [...]
    "Social security, Medicare, Obamacare...all unconstitutional..."

    As you say, you're doing it wrong.

  • Sarcastr0||

    as they are not considered taxes but retirement schemes and health insurance schemes. Taxes are constitutional, schemes are not.

    Love dat passive voice.

  • loveconstitution1789||

    Pollock and SacastrO are example of people who love bureaucrats to skew the Constitution and ultimately destroy it.

  • Sarcastr0||

    Not so much, 1789.

    The issue is that your distinction between taxes and schemes is arbitrary, as seen by your use of 'are not considered.'

    Moreover, under Article I Congress may spend money for general welfare, so I don't see where your constitutional issue is unless you don't think health insurance and retirement are part of general welfare.

  • EscherEnigma||

    For example, in my view, originalist methodology justifies striking down sex-discriminatory laws that most would have considered constitutional in 1868, because we now have better factual evidence on the capabilities of women.


    Seriously?

    So now "originalism" means both "original intent" and "original intent if they meant what I wanted them to mean"?

    Yeah, I can't imagine why anyone would be skeptical that this is any sort of coherent method to interpreting the constitution.

  • bernard11||

    This is the ideologue at work.

    Not only must his theory be good, it must be flawless. Facts be damned.

  • swood1000||

    Those who claim to be Originalists but also want the freedom of the Living Constitution approach use the level of generality to achieve their aims. For example, Scalia used a low level of generality when he said

    "When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases."

    Those "Originalists" who wish to conclude that a ban on same-sex marriage violates the 14th Amendment will use a higher level of generality. For example, they will say that the 14th Amendment intended to incorporate an "anti-caste" principle, or that it intended to require "equality" more generally.

    Suppose the population in 1860 were in the thrall of a religious belief that X conduct was immoral, and so they passed a law making X conduct illegal. Then suppose that 100 years later the population no longer believes that X conduct is immoral. Does the law nevertheless remain on the books until it is changed legislatively or is the judiciary empowered to declare the law null and void on the ground of mistake?

  • SimonP||

    You're right to note this feature of "originalist" interpretations, and that it represents a problem for the approach. But I think we can put the point to Ilya even more clearly.

    If "originalism" is a normative theory, its method has to follow from and be consistent with its normative rationale. Why ought we refer to the "original public meaning," in the first place? As I understand it, the most common way to justify originalism as a normative constitutional theory is to show that it best implements "rule of law" values that the law be stable, patent, and knowable.

    But if, as Ilya asserts, we can adjust the "original public meaning" according to an underlying factual understanding that can shift over time, how are these "rule of law" values still observed? The whole point of referring to the "original" meaning was to fix it to a determinate point in time; and the whole point of referring to the "public meaning" was to fix the law's import to its published text and to avoid having to look "beyond" the text to considerations not made patent.

    So if we allow the "original public meaning" to shift in this way, what good is the "original public meaning," in the first place?

  • swood1000||

    You're right to note this feature of "originalist" interpretations, and that it represents a problem for the approach.

    But this is the same problem that exists when we try to interpret any legal text – what was the meaning of the terms used?

    But if, as Ilya asserts, we can adjust the "original public meaning" according to an underlying factual understanding that can shift over time, how are these "rule of law" values still observed?

    Ilya is approaching this as if the constitution were a series of provisions such as "All products harmful to human health are banned," at time when it was not known that tobacco was harmful to human health but then later it was discovered to be. The underlying facts would be determinative. But I think he's wrong that this was the original public meaning. One reason I think this is that it is absurd to suppose that the federal judiciary was being set up as a roving constitutional convention, authorized to create constitutional rights without any democratic oversight.

    (Continued)

  • swood1000||

    I don't understand why you say that originalism must involve some sort of living constitutionalism. Do you call it living constitutionalism if the Fourth Amendment is interpreted to refer to searching the bits of information on a computer, since computers did not exist at the time of the Fourth Amendment? It's not living because the same thing is being protected. But in any event, it couldn't be termed living constitutionalism to say that the 4th amendment still applies to a police search of somebody's house.

    Why ought we refer to the "original public meaning," in the first place?

    We ought to for the same reason that the meaning of a contract consists of the meaning of the terms to the parties, to the extent that can be determined. If that meaning is spelled out in the document then we ought not give it any other meaning. Any other approach is inconsistent with the reason for a contract.

  • James Pollock||

    "Do you call it living constitutionalism if the Fourth Amendment is interpreted to refer to searching the bits of information on a computer, since computers did not exist at the time of the Fourth Amendment?"

    You could.
    A better example would be if the Fourth Amendment prevents wiretapping of telephones, not because telephones didn't exist yet, but because wiretapping is akin to eavesdropping, which is not forbidden by name in the text of the 4A.
    Or, if the 4A implies a broad right to privacy, so that the government can't get your medical records from your doctor without a warrant.

  • swood1000||

    Or, if the 4A implies a broad right to privacy, so that the government can't get your medical records from your doctor without a warrant.

    If the 4A implies a broad right to privacy then that's the original meaning of the 4A. Living constitutionalism I take to involve a change in meaning. This would be the case, for example, where Right X would at the time have clearly been excluded from the operation of the amendment but the judiciary today says that Right X is now a protected right.

  • bernard11||

    Suppose the population in 1860 were in the thrall of a religious belief that X conduct was immoral, and so they passed a law making X conduct illegal. Then suppose that 100 years later the population no longer believes that X conduct is immoral. Does the law nevertheless remain on the books until it is changed legislatively or is the judiciary empowered to declare the law null and void on the ground of mistake?

    But that's not remotely what happened. You can claim that the population thought homosexuality immoral, but the Constitution doesn't say that. You can say that they wouldn't have thought the 14th prohibited bans on SSM, but so what?

    Even if you could prove your assertions, which are likely true, it doesn't matter in the least, because a modern understanding of homosexuality is vastly different than that which prevailed 150 years ago, and the legal aspects of marriage are vastly different as well.

    The facts are different today. The principle - equal protection - hasn't changed, but the facts, as we understand them, to which it is applied are different.

  • James Pollock||

    "But that's not remotely what happened. You can claim that the population thought homosexuality immoral, but the Constitution doesn't say that. You can say that they wouldn't have thought the 14th prohibited bans on SSM, but so what?"

    The thing is, the framing of the question is all wrong.
    The Constitutional question was not "does the Constitution require that gay people be allowed to enter into marriage contracts with other gay people, even if they have the same sexual plumbing?"

    The Constitutional question was "can the voters of a state strip away a right from some people, but not all people, without specifying a compelling reason to treat citizens differently?" The answer to that question turns out to be "no", and it has been "no" for a very long time.

    Somebody wrote the California marriage laws such that they forgot to mention that the spouses-to-be had to be of differing genders. So, when challenged on the subject, the California Supreme Court ruled that they didn't. This caused the Mormons to go apeshit and spend a bunch of money on a California constitutional amendment to say that they do.
    That's what makes it an equal protection matter.

  • swood1000||

    The Constitutional question was "can the voters of a state strip away a right from some people, but not all people, without specifying a compelling reason to treat citizens differently?" The answer to that question turns out to be "no", and it has been "no" for a very long time.

    No, actually the question is "at the time of the ratification of the 14th amendment was Right X understood to be a right protected by the 14th amendment?" And let's suppose that it was not, but that many today believe that it should have been. If we believe that it should have been does that justify us in adding Right X to the list of rights protected by the 14th amendment? What if Right X had been explicitly excluded by the language of the amendment. Would we nevertheless be justified in including it as a protected right?

  • swood1000||

    But that's not remotely what happened.

    My question was just a different way of phrasing the issue. Let's take the example of voting rights for women. Since Section 2 of the 14th amendment contemplates that women could be denied the right to vote let's assume that this demonstrates that the denial of the right to vote for women did not violate the 14th amendment. In fact, let's go further and suppose that it had been explicitly stated that this would not violate the 14th amendment. The unstated reason for this would of course be because of beliefs of the ratifiers that were no longer held 52 years later when the 19th amendment was ratified.

    Do you think it would have been legitimate for the Supreme Court in 1920 to rule that the explicit provision excluding the voting rights of women from the protection of the 14th amendment had been motivated by beliefs that were by 1920 known to be erroneous and therefore this provision could be ignored, therefore voting rights for women were protected by the 14th amendment and there was no need for the 19th amendment?

    If you say that no, the Supreme Court could not ignore an explicit exclusion of a certain right from the protections of the 14th amendment, then why would there be a different result if we can agree that the ratifiers excluded right X from the protections of the 14th amendment but this was not explicitly stated in the language of the amendment?

  • ReaderY||

    Basic philosophical ideas like empiricism, idealism, materialism, vitalism, etc. are properly regarded as theories, even though they each encompass a large number of different thinkers who often disagree sharply on individual positions or details.

    Once again, requiring too much exactitude to say anything only means nothing gets said. Every major idea that seriously attempts to grapple with and describe something that exists outside oneself - as opposed to the clarity and sharpness that can be achieved inside one's own head, and only inside it - is necessarily inexact.

  • Michael Ejercito||

    Decades-long delays in death penalty appeals arise from Living Constitutionalism.

    http://ethicsalarms.com/2018/1.....ce-thomas/

    It is no mystery why it often takes decades to execute a convicted murderer. The labyrinthine restrictions on capital punishment promulgated by this Court have caused the delays that Justice Breyer now bemoans. As "the Drum Major in this parade" of new precedents [quoting Justice Scalia in Glossip v. Gross], Justice Breyer is not well positioned to complain about their inevitable consequences.
  • ||

    I I have a hard time to understand the argument about Originalism or Living Constitutionalism attaining the status of "theory". IMHO one of the strengths of a theory is, given certain axioms, the absence of contradictions. However, historical and empirical evidence suggests that a rather "young" theory should be allowed to endure some contradictions for a while before being killed off but nobody knows when.
    It gets trickier when the set of axioms consists of descriptive AND normative propositions but I guess derived hypotheses of mixed axioms are of necessity normative.
    I suspect it is not mere coincidence that Ilya should have chosen Christianity as an analogue since there are some faith-like qualities to both originalism and living constitutionalism in all their varieties ─ or dare I say, denominations?
    I also wonder if when closely scrutinized one would not find comparable overlap between various originalist conceptions and their LC counterparts. Hence, why bother about "theory"?
    The empiricist in me would suggest to have a look at the practice of self-declared "originalists" and "living constitutionalists". My hunch is you'd find not only a lot of "faint-heartedness" but also quite egregious violations of the rules of their tribe, leaving the laymen wonder whether or not the whole exercise is simply giving the actors ideological cover for whatever they do ─ not unlike the obligatory references to Marx, Engels and Lenin in the late Soviet Union.

  • Pyrroc||

    Next from Eric Segall, "Christianity isn't legitimate because all of its adherants don't agree".

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