Originalism, Common-Good Originalism, and Common-Good Constitutionalism

Adrian Vermeule responds to Josh Hammer. We are watching an important debate unfold before our eyes.

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Last month, Adrian Vermeule wrote an essay titled Beyond Originalism. The Harvard Law Professor contended that originalism had already served its purpose, and our polity should shift to what he called "common-good constitutionalism." Co-blogger Randy Barnett responded to Adrian, and warned about the risks of any non-originalist approach to the Constitution.

Last week, my friend Josh Hammer wrote another reply to Vermeule that seeks to stake out something of a half-way position. He calls it "common good originalism." Here is a snippet–though I encourage you to read the entire essay.

Common good originalism should adopt the conservatism of Hamilton, Marshall, and Justice Joseph Story as its jurisprudential lodestar. The interstices naturally permitted by a more expansive constructionism will, assuredly, provide ample room for jurists to deploy substantive moral argumentation along the lines favored by scholars like Jaffa and Arkes. Furthermore, by rejecting hyper-literalist free speech absolutism, common good originalism permits (within reason) natural law-undergirded arguments about the moral worth of one's speech, such as Alito's dissent in Snyder: "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case."

Common good originalism also rejects natural law-subversive "originalist" claims about constitutionally mandated marriage redefinition that would undermine the common good, risible anti-sovereigntist "textualism" claims about constitutionally mandated open borders that would wreak havoc upon the common good, and so forth.

This is only a bare-bones beginning. And I know, of course, that I will not persuade Vermeule himself. But my aim is to lay out a framework upon which to build an assertive, moralistic, Burkean/Hamiltonian conservative jurisprudence. This jurisprudence is also legitimate, from a positive law perspective, because it is rooted in (an expansive construction of) the constitutional text and thereby avoids the "oath-breaking problem" posed by Article VI of the Constitution.

Vermeule has now responded to Hammer.

Josh Hammer has written a characteristically thoughtful and engaging response to Common-Good Constitutionalism, arguing for an approach he calls "Common-Good Originalism." I see Hammer's approach as a laudable development, a movement half-way to the right approach. But as with many half-way positions, it is unstable. The structure built of originalism and the common good fits together poorly, for the former is a positivist approach and the latter a nonpositivist one. Thus nothing at all guarantees that the original understanding will necessarily or even predictably track the common good (however the latter is defined), and conversely it is always possible, indeed likely, that the common  good (however defined) will prescribe an interpretation that cannot be justified in originalist terms.

Adrian adds that Hammer's position may become something of a middle-ground:

To be sure, even if originalism and the common good cannot be combined in a stable manner, a house with shaky foundations may happen to be shored up by external buttressing. I wouldn't be wholly shocked to see a position like Hammer's become a new political equilibrium, one that supersedes the currently reigning libertarian originalism, and theoretical coherence be damned. But that contingent political dimension is not my concern here. My point is one of theory: common-good originalism, whatever its political appeal, has an inherent tendency to break down into one or another of two distinct views, one which subordinates the common good to originalism, and the other which subordinates originalism to the common good.

And Adrian praises Hammer's non-libertarian approach to originalism:

There is much to admire in Hammer's argument. It is a long step away from the libertarian form of originalism that has colonized the legal right at least since the second Bush administration, and that until recently dominated the scene. Justice Scalia's modus operandi (viewed from the outside; I do not suggest that this was a deliberate strategy) was to stake out a principled position, resting on internally coherent arguments, that would expand the range of the thinkable on the Court, and then to watch his colleagues struggle part-way towards his views with positions that were uneasy compromises. In that Scalian sense, Hammer's piece, internally conflicted though it may be, amounts to an ominous sign of the times for conventional originalists. When a prominent young conservative commentator like Hammer expressly rejects "pure legal positivism and the elevation of procedure to the complete detriment of substance, most frequently associated with the jurisprudences of the late Judge Robert Bork and the late Justice Antonin Scalia," one can almost feel the winds of change freshening.

We are watching an important debate play out in front of our eyes. And the stakes are high. In the past, I have described the "libertarian" wing of the FedSoc legal movement as "ascendant." I still think that is the case, but there is movement afoot. Contrary to left-wing caricatures, we are not monolithic lemmings. There are some common grounds of agreement, and there are other areas of sharp disagreement. Randy wrote about this shift:

In particular, I have sensed a disturbance in the originalist force by a few, mostly younger, socially conservative scholars and activists. They are disappointed in the results they are getting from a "conservative" judiciary—never mind that there are not yet five consistently originalist justices. Some attribute this failing to originalism's having been hijacked by libertarians. Some have been drawn to the new "national conservatism" initiative, which makes bashing libertarians a major theme. These now-marginalized scholars and activists will be delighted to fall in behind the Templar flag of a Harvard Law professor like Vermeule.

Josh Hammer makes this point expressly, and ties it to a current case:

Within this broader context of conservatives reconsidering orthodoxies, Vermeule's proposal fits quite neatly. What Georgetown University Law Center Professor Randy Barnett calls a "disturbance in the originalist force by a few, mostly younger, socially conservative scholars and activists" could evolve into a more thorough exodus away from originalism if, as is heavily rumored, putative originalist Justice Neil Gorsuch sides with his progressive colleagues this term by reading into Title VII legal protection the biological and linguistic lie that is "transgenderism."

I agree with Josh Hammer that Adrian has shifted the Overton window. This issue warrants far more discussion.

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  1. So it seems that Vermeule is the “bad cop,” and this Hammer fellow is the “good cop,” seeking dialectically to induce originalists to compromise their position.

    “the conservatism of Hamilton, Marshall, and Justice Joseph Story as its jurisprudential lodestar”

    No, thank you.

    “rejecting hyper-literalist free speech absolutism”

    So…the common good requires *more* censorship?

  2. Who is to say what is good? The justice system, by definition, evaluates win/lose situations, not win/win. The “common good” presupposes a win/win outcome is possible. An argument for the “common good” is a non-starter.

  3. Non-lawyers have a hard time understanding that ‘red’ in the 1780s means ‘green’ now. If the law can not be understood as meaning what the words say, then any respect for the law and lawyers will evaporate.
    Playing games to get what you want without going over the hurdles of legislation is clearly an attempt to cheat.

    1. Agreed. And a court that rams 57 genders down the throat of America will quickly find that it has gone too far.

    2. Except, the Supreme Court is still one of the most respected institutions.

      Indeed, if you want the Supreme Court to come into disrepute, one good way to do it would be for the Supreme Court to adopt extreme right wing interpretations that rendered much of what the federal government does unconstitutional.

      1. That’s because, with conspicuous exceptions like Roe or Obergefell, the Supreme court is mostly committing the wrong of inaction, “merely” failing to restrain the other two branches’ excesses.

        So, while their reputations have declined, it’s not as much as the other two, more active branches.

      2. “Indeed, if you want the Supreme Court to come into disrepute, one good way to do it would be for the Supreme Court to adopt extreme right wing interpretations that rendered much of what the federal government does unconstitutional.”

        The animating concept of the Supreme Court is that it isn’t supposed to care about falling into political disrepute. Note that as an empirical matter, the reason the Supreme Court has not been viewed lowly is largely because it’s avoided taking too many hard positions on political questions. Its lowest “repute” is when it is viewed as too conservative (1991) or too liberal (2016). I didn’t live it, but talking with older lawyers, I sense that there was plenty of disrepute towards the institution during the worst excesses of the Burger and Warren courts. And there were successful, national, political and legal movements to reign in those excesses.

        We may all love Roe as a matter of politics, but it did real damage to the court’s repute. Because it’s doctrinally nonsense.

        1. “We may all love Roe as a matter of politics,”

          Well, you know, except for those of us who loathe it, both because it’s doctrinally nonsense, and morally offensive doctrinal nonsense.

    3. If only you actually read about the history of constitutional law, you would understand that the court system has always been making contestable interpretations of the law.

      You think constitutional law has all about arguing about the difference between green and red for all this time?

  4. I’ll reiterate my view that Vermeule is not merely offering a different style of conservatism, he is advocating that the judiciary impose reactionary policies based on pre-Vatican II notions of Catholic theology on the public at large. Not only will this not attract more than negligible support from Fed Soc types, it wouldn’t be taken a bit seriously by almost anyone if Vermeule didn’t happen to be a professor at Harvard.

    1. I suspect that in the end his ideas will be rejected not because they’re ridiculous, but because they’re the wrong *kind* of ridiculous.

      For example, I expect that Elizabeth Bartholet will get a lot more respect than Vermuele in intellectual circles for arguing that – in Harvard Magazine’s paraphrase – “if parents want permission to opt out of schools, the burden of proving that their case is justified should fall on parents.” And she coyly alluded to Germany’s laws against *all* homeschooling.

      https://harvardmagazine.com/2020/05/right-now-risks-homeschooling

      Which is at least as authoritarian as anything Vermeule says, but let me know when he gets a favorable platform for his ideas in Harvard magazine.

      Going by his Wikipedia profile, I think that when Vermeule was hired, he was a largely secular conservative, and – but correct me if I’m wrong – he developed his “pre-Vatican II” philosophy after he’d obtained tenure – a sincere conversion I’m sure, but happily for him too late for the university to do anything about.

      1. To me homeschooling is something like Prohibition. It’s a horrible, destructive thing that harms young people immensely by depriving them of opportunities to critically think about stuff their parents believe.

        But like drinking, a ton of American parents want to do this. So we really can’t ban it- it’s too politically explosive.

        But yes, it is absolutely harmful for children that we have developed this system where FLDS and the most conservative evangelical groups and the most right wing Orthodox Jews can segregate their children from Kindergarten through college graduation at a sectarian university.

        1. Ah, poor John Stuart Mill, his dad was the equivalent of an alcoholic by homeschooling him.

        2. From back in 2015:

          “There’s a new path to Harvard and it’s not in a classroom

          “…”The high achievement level of homeschoolers is readily recognized by recruiters from some of the best colleges in the nation,” education expert Dr. Susan Berry recently told Alpha Omega.

          “”Schools such as Massachusetts Institute of Technology, Harvard, Stanford, and Duke University all actively recruit homeschoolers,” Berry said….

          “Contrary to popular belief, homeschoolers are not shut-ins. Research suggests that homeschooled children actually gain closer ties to their community, relating to people outside of their grade level. Homeschoolers learn to become active participants in their neighborhoods and soak up the etiquette of adult life in the process….

          “Homeschoolers, in particular, were found in one 2009 survey to fall in the 86th percentile on standardized tests. The results held even controlling for parents’ income level, amount of education, teaching credentials, or level of state regulation.”

          https://www.businessinsider.com/homeschooling-is-the-new-path-to-harvard-2015-9?op=1

          1. That’s cherry picking.

            A lot of homeschooled kids are the children of religious fanatics. And not only are they not going to Harvard, but their parents don’t want them to go there.

            1. Don’t want to go to Harvard? Imagine that!

              Come to think of it, wasn’t Harvard founded by religious fanatics?

            2. Well, I certainly wouldn’t want my son to go to Harvard. MIT, Johns Hopkins, maybe even Cal Tech, but not Harvard.

        3. Furthermore, who says it can’t be banned? The Germans ban homeschooling, and if you can’t trust the Germans, who can you trust?

          https://www.german-way.com/homeschooling-verboten/

          And the article makes clear that you can’t blame it on the National Socialists, the ban dates back to the founding of the Second German Empire in 1871, and those friendly folks were all about liberty!

        4. Really? = To me homeschooling is something like Prohibition. It’s a horrible, destructive thing that harms young people immensely by depriving them of opportunities to critically think about stuff their parents believe.

          Educating your own children means they cannot think? I don’t think that is case at all. Curious you single out religious schools in conjunction with homeschooling. You appear to conflate them – deliberately. Why is that?

          1. Seriously fanatical religious believers do not believe in “thinking”, because people who think rather quickly decide that the fanatics’ beliefs are bunk.

            I mean, this really wasn’t even controversial even in conservative circles back in the day. It was the background premise of Buckley’s famous “God and Man at Yale”. The educational system, by teaching critical thinking, undermines religious indoctrination. Buckley thought that was bad, but he acknowledged it was true.

            1. Buckley said Yale had its own form of indoctrination.

              He also rejected “the superstition of academic freedom,” but then, so do many modern college administrators.

        5. Eh, it’s destructive or constructive, entirely depending on how well it’s done. Just like public education in that regard, only more so, due to the lack of enforced mediocrity. So there’s more room for it to go really well, and go really badly.

          My parents taught us to read before K-12, me and my wife did the same with our son, as a result both my siblings and my son showed up in kindergarten with an adult reading level. This is pretty typical of what homeschooling can routinely achieve, it IS basically intensive, individualize tutoring, after all.

          Historically, centrally controlled public education wasn’t about education so much as it was about the opportunity to spend a lot of time indoctrinating the next generation. And I do understand why you’d fear a next generation the left didn’t get to indoctrinate…

        6. “To me homeschooling is … a horrible, destructive thing that harms young people immensely by depriving them of opportunities to critically think about stuff their parents believe.”

          Most of American K-12 is far worse in all regards.

          1. My suburban K-12 was just fine. I turned out better than any of the FLDS children who were homeschooled.

            1. Aren’t the FLDS people polygamists?

              Religious fanatics aren’t interchangeable. Most of them frown on polygamy and concubinage, Margaret Atwood to the contrary.

    2. I generally speaking think that the Constitution permits states to implement conservative values where it doesn’t expressly prohibit them, not because I think they are always right, but because they are in the range of things the constitution, which generally leaves matters of social policy to legislatures, permits. I have also, from time to time, spoken against courts striking down liberally-motivated legislation on similar grounds.

      In addition, history has sometimes vindicated conservative values over values that at the time seemed progressive (the eugenics controversy is an example but there others). This does not, of course mean that conservatives are necessarily right or that I agree with them personally on everything. In the middle of things, we feel certain and think we know exactly what to do. But we can’t be as sure we are right as we think we are.

      1. …”history has sometimes vindicated conservative values over values that at the time seemed progressive (the eugenics controversy is an example…”

        Can we agree that is something of an understatement….

        1. Conservatives aren’t always wrong, but they do have a low batting average. Racial discrimination, keeping women out of the workplace, contraception, gay rights, etc.

      2. “In addition, history has sometimes vindicated conservative values over values that at the time seemed progressive”

        So, progressive values that the left eventually abandons retroactively become conservative values that only seemed progressive at the time?

        It seems progressivism can never make mistakes, it can only seem to have at the time, when people are mistaking conservative policies progressives are pushing for actual progressivism.

        1. Progressivism is like science: The methodology is sound, but that doesn’t mean no mistakes are ever made in application.

          1. That implies that what you’re pushing right now could be a mistake made in application, too.

            Really, I think progressivism is more like scientism than science, but I will grant you’ve got infiltrating and subverting institutions down to a science.

    3. He seems to want to move us all back to pre-Vatican II Ireland, in fact. Ah, pedophilia, single moms enslaved in laundries – those were the good times.

      1. Because we all know that the single mothers got pregnant from sitting on toilet seats….

        And pregnant brides weren’t unheard of, either….

        As to pedophilia, I don’t see how enhanced public morality promotes it. Instead, I’d argue it would serve to reduce it.

        1. Because we all know that the single mothers got pregnant from sitting on toilet seats….

          And because it’s obvious that an unmarried woman who gets pregnant deserves whatever happens to her.

          Is that right, Ed?

          As to pedophilia, I don’t see how enhanced public morality promotes it. Instead, I’d argue it would serve to reduce it.

          If you were talking about real morality you might have a point. But you’re not. You, and Vermeule and others, are talking about submission to authority, especially religious authority, which is the kind of thing that enables and encourages the kind of pedophilia that has pervaded the church.

          1. And because it’s obvious that an unmarried woman who gets pregnant deserves whatever happens to her.

            I’m going to say “yes” just to force you to reveal your bigotry.

            On a more serious note, reality circa 2020 in Massachusetts (not some other distant time and place but right here and right now), getting pregnant is the easiest way for a young woman to leap into a middle-class lifestyle without ever having to work. One of my mother’s employees asked why she was working instead of staying home with children — and a year later, she was….

            If an 18-year-old girl (often younger) gets pregnant, she instantly gets a 2-bedroom apartment, free food, free medical care, and in some places, a free car. She’s instantly got the equivalent of a $70,000 income, without having to work for it. Unlike many married women, she *can* stay home with her children.

            Dan Quayle — speaking about the then-ongoing LA riots — famously stated: https://www.youtube.com/watch?v=w8I065WZnms AND HE WAS RIGHT!!!!

            If you were talking about real morality you might have a point. But you’re not. You, and Vermeule and others, are talking about submission to authority, especially religious authority, which is the kind of thing that enables and encourages the kind of pedophilia that has pervaded the church.

            Do you know what the “P” in “WASP” stands for? Or do you not let yourself be confused by the facts?

            While I am being very careful here because there are a LOT of truly decent and Christian Catholics, but I’m not Catholic.
            MY church hires our minister in our annual church meeting, which is virtually identical to the annual town meeting (which it *was* until 1855). We had a minister who was having an affair with the choir director — both were married, unfortunately not to each other — and I promised to come back from college my freshman year if my vote was needed to fire him. It wasn’t because he was told how many votes were against him, and he then decided that the Lord was calling him to go sell life insurance.

            Now as to the perping Priests, I’ve had conversations with some of the Catholic administrators the way that only a Protestant can, and I’ve heard three things. First, they believed in Christian redemption (I do too) and that a sinner can find the Lord — and behave himself. Second, they believed what the Voodoo Scientists were telling them, and that these men had been “cured.” And third, what no one’s talking about is that they were drunk when they were doing this. There was a problem with alcoholism *and* a problem with job-related stress and this is something that all religious orders haven’t really dealt with (nor have the Voodoo Scientists).

            I’m not even going to try to explain the difference between the Protestant and Catholic faiths because I doubt you care. But to blindly tar me with the evils of a faith not even my own is below the belt.

            1. Where can 18-year-old pregnant girls get a free 2-bedroom apartment, free food, free medical care, and a car?

              1. Maine, Massachusetts, probably elsewhere.

    4. The word for what Vermeule is advocating for, is called “Integralism.”

      To be fair, while I would prefer to stick with Originalism, but there was an element of common good conservatism in the Founder’s ideals. For example, Jefferson wrote in a letter in 1810 of a law higher than the Constitution; “[a] strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation”….“[t]o lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”

      It’s common enough to say “the law is an ass” when written law contradicts wisdom, or to say that an unjust law is no law at all. In the Anglo-american tradition, common law is more akin to natural law than we care to admit, and that has to be taken seriously.

      1. Yes, and it was widely understood in 1787 that they were writing a Constitution for a Christian people.

        1. Actually, they made a very conscious choice to fill the Declaration of Independence- a propaganda document which has no force of law- with religious rhetoric and then take almost all of the God talk out of the Constitution.

          And that’s not surprising. Many of the framers were Deists and there really weren’t any conservative evangelicals in the bunch. They use Christian rhetoric in the way most politicians do- to get the rubes on board.

          1. “Our Constitution was made only for a moral and religious people”. “It is wholly inadequate to the government of any other.”

            … John Adams

  5. What’s the difference between common-good lineral constitutionalism and common-good conservative constitutionalism except for differences in values, in beliefs aboutwhat constitutes the common good?

    And why shouldn’t differences in beliefs about what constitutes the common good be resolved in the legislatures, as opposed to the courts?

    Why shouldn’t the common people get a say in what constitutes the common good?

    1. I know that one – because the common people keep getting it wrong.

      In fact, the courts wouldn’t have to intervene at all if only the masses of plebs voted the right way.

      /sarc

      1. Eddy, that would be a far more persuasive argument if the votes of the common people actually had anything to do with who gets elected. In two of the last four presidential elections, the candidate who lost the popular vote got the presidency, and 400,000 Wyoming voters can cancel 30 million Californians in the Senate.

        Give us a polity in which the popular vote actually means something. Until that happens, the argument that liberals can’t win elections is simply disingenuous.

        1. I wish they couldn’t. They do, just not, apparently, enough to stop the courts from acting as a backstop if they should happen to lose.

          Which *existing* country pays more attention to the popular vote, and how is it better off than the U. S. as a result?

          1. Eddy, the United States has political dysfunction unknown anywhere else in the Western world. Our Congress can’t even pass a budget, and government shutdowns happen every couple of years or so. We’re trillions in debt because there is no political penalty to be paid for putting us trillions in debt; since red state seats and blue state seats are all safe seats, nobody is accountable to the voters.

            In a parliamentary system, which I favor, politicians can actually keep the promises that they make on the campaign trail, unlike here, where everything gets obstructed by the other party no matter which party is in power. You have to completely run the table on election day to get anything done.

            If you think gridlock and dysfunction are good things, then I guess we’ve found the perfect system for you. I don’t. I want government to work, I want it to be efficient, and I want politicians who don’t perform to actually have to worry about losing their seats. None of which happens under the current system.

            1. Just a note, but a parliamentary system doesn’t prevent dysfunction, witness the U.K. and Brexit as one major example.

              And the system, the U.S. system that is, is supposed to have gridlock and slow things down. It’s baked into the constitutional cake as part of the trade-off to prevent mob rule and tyranny.

              Where are these angels, btw, that can run for office in a parliamentary system and make government efficient and working?

              1. I have never been persuaded by the argument that American voters are tyrants and mobsters. In addition to being insulting to the voters, it’s just scare language. You’re not worried about mobs; you’re worried that your side can’t win fair elections, which is probably true.

                The best way to prevent tyranny is competitive elections.

                1. Like a typical liberal, you’re blithely ignorant, or perhaps willfully ignorant, of human nature. If every citizen were as wise as Socrates, taken collectively, they would still act like a mob. The Founders were well read on the Roman Republic and Athenian direct democracy, and worried about a dictator as much as a the people.

                  We do have competitive elections. Just how often has the presidency and both houses of Congress switched hands lately….a lot. You just don’t like system your ancestors built for you to tame the mob. At least recognize, since you want to change it to rig the system, that it’s been successful thus far.

                  1. Successful at what? On those few occasions when we’ve had genuine mobs, I don’t see that the system has done much to stop them.

                    But answer me this: You don’t think the majority is to be trusted with power. What makes the minority any more trustworthy? Does being in the minority somehow give them wisdom and character that the majority lacks?

                    1. America has been a successful democracy in that it has not gone into tyranny, and has a standard of living higher than much of the world, and one of the greatest in human history. Sure, it’s got problems, but you, Krychek, have a standard of living better than a Roman Emperor.

                      I don’t trust the majority, nor a minority. You’ve set up a false choice. I like our system that sets limits on both. Remember, that Reagan and other conservatives you dislike did win the popular vote too.

                    2. And on those occasions when Reagan and other conservatives I disagreed with won the popular vote, my reaction was that that’s democracy and my side will just have to work harder next time. Which is a wholly different situation from when half the country considers a president illegitimate because he didn’t win the popular vote.

                      And that’s the worst thing about anti-democratic institutions like the electoral college. Liberals get that we’re not going to win every election, but when we lose, it should be fair and square, and not because of a stacked deck. And one reason you see liberals so willing to embrace the court to achieve anti-democratic results is a sense that the ability to make policy was stolen from us via anti-democratic institutions, so we’re just stealing it back. And, going back to the original point of this discussion, you’re in an awfully weak position to complain about anti-democratic courts after singing the praises of anti-democratic elections.

                    3. Again, you set up a false choice. Complaining about courts making anti-majoritarian social change, because these circuit courts and SCOTUS, are filled with unelected judges appointed pretty much for life who are not accountable in elections is not incoherent with also liking institutions like the Electoral College or the Senate that tamp down on the worst effects of mob rule.

                      Social change should come through the legislature, as reflected by the will of the people, not through the courts.

                    4. Granted, there are distinctions between the courts and the electoral college, although the Constitution explicitly creates both entities for the purpose of standing in the way of majoritarian rule. But they have one big similarity, and that’s it: The Constitution created them to put a brake on social change. And you have to take them as a package deal. You can’t complain about anti-democratic aspects of one while supporting the anti-democratic aspects of the other. We either have majority rule or we don’t.

                    5. No, one doesn’t have to take anything as a package deal. It’s not a either/or decision. Quit trying to make it so. Why can’t one desire to have social change through the elected legislatures rather than the un-elected courts, but still have checks and balances on the way the legislatures are formed?

                      Think about it like this, you clearly like your first amendment rights, but you complain about other aspects of the constitution. The thing is, I acknowledge that trade-offs are always going to be there, you don’t.

                    6. I acknowledge tradeoffs are always going to be there; I just disagree with you that this particular tradeoff is necessary. And from a cost/benefit analysis you are denying the American public of self governance in exchange for something I’m far from convinced has made us all that better off, if at all.

                      The reason for reluctance to use the courts to make policy is that doing so deprives the majority of the ability to self govern, which is a pretty significant thing. Well, that applies with equal force to the EC and two senators per state.

                      And my analysis would be different if there were a showing that those anti-democratic measures have saved us from disaster the majority would have forced on us, but I just don’t see that as the case. Other than that you disagree with his politics, is there any evidence that Al Gore would have been such a disaster as to justify depriving the majority of self government? Or Hillary Clinton?

                    7. “Well, that applies with equal force to the EC and two senators per state.”

                      No, the EC and Senate moderate and channel self-governance, while they are not the most straightforward forms of it, you still prevail by getting people to vote your way. They just provide votes that are widely distributed an advantage. But it’s still the case that, if 51% of the public, uniformly distributed, voted in a given way, they’d win every election.

                      The courts are, by contrast, not designed to be responsive to public votes AT ALL. They’re perfectly capable of imposing something against the will of a well distributed majority, and have done that more than once.

                      Well, under the right circumstances they ARE supposed to rule against the public, because their job is to enforce the rules that have been formally put in place, until they’re formally changed, and the public might vote to just go ahead and violate the rules. In theory, the public can still prevail in the end by democratically changing the rules the courts are tasked with enforcing, at which point, in theory, the courts would then enforce the new rules.

                      In theory. When the courts get it into their heads to just go off on a tangent and enforce the rules they WISH had been adopted, instead of the rules that were, there’s not a lot the voters can do.

                    8. Brett, you can draw whatever distinctions you like, the subject is anti-democratic checks on the majority.

            2. Krychek_2 — been paying attention to Israel recently????

              1. And Hitler assumed power in a Parliamentary system.

              2. Israel’s current situation, and the Brexit mess, happen, but they’re aberrations. Here, that kind of dysfunctional politics is normal. I wouldn’t say a parliamentary system always runs like a Swiss watch, but overall I’d say you generally get far less uproar and a lot more efficiency than we do here.

                Case in point: in England or Canada Trump would not have been impeached. He’d have lost a no confidence vote, there would have been an election, and the voters would have decided. The entire shitstorm Senate trial would have been avoided. Whether you think Trump should or should not have been removed from office, that strikes me as a far better way to handle it.

                1. “Case in point: in England or Canada Trump would not have been impeached. He’d have lost a no confidence vote….”

                  Trump would never have gotten elected in more liberal England or Canada. So your thought, my friend, is what we in literature, call “fan fiction” or more derisively, “head canon”.

                  1. And Trump never having been elected is what I call a feature rather than a bug.

                    It’s not just that I disagree with his policies, though I do. It’s that he’s completely destroyed American leadership on the world stage, spent the first month of the Covid-19 crisis claiming it was a Democratic hoax to make him look bad, added trillions to the national debt by cutting taxes without cutting spending, and undermined democratic institutions at every opportunity. Other than that, I guess he’s been ok.

                    1. That Trump would never have been elected is because the body politic, or culture, is more liberal in Canada and England. It has little to do with a parliamentary system, that for instance, gave the world Margaret Thatcher.

                    2. As much as I often disagreed with the Iron Butterfly, and Tony Blair, and Boris Johnson, they are all qualitatively different from Trump in that they were competent leaders who understood basic governance. Margaret Thatcher would not have spent the first month of Covid-19 claiming it was a hoax by her political enemies to make her look bad. Blair wouldn’t have bankrupted the treasury with tax cuts but no spending cuts. Boris Johnson would not have abdicated British leadership on the world stage.

                      Trump is in a class all by himself, and I don’t mean that as a compliment.

                    3. Fake news. Trump didn’t claim the Wuhan virus was a hoax, but the Dems response to it…trying to use it against him like the Russia hoax.

                      You’re degenerating into TDS here, and it’s not pretty to watch. I’ve met all your objections and complaints with coherent, rational responses that acknowledge a series of trade-offs and that nothing is perfect in our fallen world. You’re at bottom, saying “because Trump” and it’s not a winning argument against anyone who isn’t already on your side of the aisle. I mean, I thought Obama was an incompetent boob who mucked up foreign policy too, and you’d laugh at me if that’s all I could come back with was “but, but Obama is DIFFERENT”.

                    4. No, my argument is not “but Trump.” I’ve given several reasons why the EC is a bad idea, even though that wasn’t even my original point. My original point is that you don’t get to complain about the anti-democratic courts will loving the anti-democratic EC, which is a separate issue.

                      As it happens, the EC gave us an incompetent nitwit who thinks everything is about him, but there are lots of other reasons to oppose it as well.

                      And no, you haven’t responded with coherent rationality. Calling the voters mobsters and tyrants is neither rational or coherent.

                    5. “As it happens, the EC gave us an incompetent nitwit who thinks everything is about him, but there are lots of other reasons to oppose it as well.”

                      And his opponent was also an incompetent nitwit who thinks everything is about her.

                    6. We started with you saying “parliamentary systems = good” and “our system = not good”. I wasn’t debating the EC with you, but our legislative/executive system. Quite shifting things around, it’s not the same debate.

                      And please, please, please, stop putting words in my mouth. I’m not calling voters mobsters (criminals) or tyrants. I’m saying that voters can form a “mob” in the figurative sense because of a lack of rationality that happens with large groups of people overcome by emotion, and there is such thing as a tyranny of the majority. It’s why we don’t have direct democracy, so we don’t kill off Socrates or rush to support a Caesar or go lynching innocents.

                      Holy cow, the same people that acted like literal mobs in Ferguson burning down the place, or riot when a sports team wins, are voters elsewhere in their life. You think people are angels always in possession of the better parts of our nature?

                    7. Matthew, assuming that to be true, you’ve demonstrated nothing more than that the EC didn’t make us any better off.

                      mad_kalak, I probably should have stayed more focused rather than allowing the debate to meander from parliamentary systems to the EC, but the central point is allowing policy to be made by people who aren’t democratically elected. You see the courts as being different from the political branches; on this specific issue I don’t.

                      And while you are right that people are hooligans when they’re burning down Ferguson or acting out at soccer games, voting is different because people have a calm, cool and collected several weeks or months to make their decision. And I don’t think you realize how deeply offensive it is to tell people that allowing them self governance is inviting mob rule. In any other context — suppose, for example, I referred to evangelical Christianity as a mob — I’d be shouted down and laughed off the stage. How is it any less insulting to tell voters they can’t be trusted with power because they might turn into a mob?

                    8. Democratic Ad Twists Trump’s ‘Hoax’ Comment

                      “The Democratic super PAC Priorities USA Action has been running an ad falsely suggesting President Donald Trump called the coronavirus outbreak a “hoax.”

                      At the beginning, the ad splices together two quotes to have Trump saying, “The coronavirus, this is their new hoax.” It is obvious in listening to the ad that he said, “The coronavirus,” and, “this is their new hoax,” at different times. His voice sounds quite different in the two segments.

                      But on the screen, “The coronavirus, this is their new hoax” appears as a single sentence.”

                      Even Snopes calls this a “mixture”, which is about as close as they ever get to saying that Democrats are lying; “Despite creating some confusion with his remarks, Trump did not call the coronavirus itself a hoax. “

                    9. Brett, I’m not familiar with that specific ad, but given all the crap that’s fallen out of Donald Trump’s mouth, there is zero reason for the Democrats to have to make stuff up.

                2. Carter, Clinton, and Obama would all have lost a “no confidence” vote, while Speaker Newt Gingrich would have had Presidential powers. So be careful what you ask for.

            3. Discussion of the national debt doesn’t answer your question of “why shouldn’t differences in beliefs about what constitutes the common good be resolved in the legislatures, as opposed to the courts?”

              When courts make budgetary decisions it’s usually to increase spending, not decrease it.

              The Constitution does make some decisions about what the common good permits, and what it doesn’t. Bipartisan Congressional disregard of these limitations is a big part of the reason we have such a large national debt. So if that’s your concern, I’d say curb Congressional spending within its Constitutional limits.

              1. Wait, that was ReaderY’s question I was responding to. OK.

    2. In other words, stay in your lane law professors.

      1. I think law professors are allowed to have opinions on what constitutes the common good. Law involves a certain amount of philosophy, ethics, political theory, sociolgoy, etc. Law professors are free and entitled to say what they think the law should be. They are not limited to discussing only what it currently is.

        I just don’t think they should be conscripting the constitution into their programs.

        1. I think law professors are allowed to have opinions on what constitutes the common good.

          Sure they are, just as you and I are.

          But the pretense that this is all part of the study of law, that they bring professional expertise, rather than just their opinion, is nonsense.

          I strongly suspect the country would benefit if these guys would just go back to teaching law students about contracts and torts and whatnot.

          Frankly, this stuff sounds like utter bullshit to me, or personal values covered by a thin veneer of “scholarship.”

          Common good originalism also rejects natural law-subversive “originalist” claims about constitutionally mandated marriage redefinition that would undermine the common good, risible anti-sovereigntist “textualism” claims about constitutionally mandated open borders that would wreak havoc upon the common good, and so forth.

          Who declared it a fact that these things are inimical to “the common good?” Argue it if you like, but don’t just try to slip it by.

          1. I guess I would take an intermediate position. I agree with you that this is largely about personal values. However, scholarship, inquiry, and organized thought can help inform personal values. I wouldn’t describe such scholarship as bullshit. I think it’s very reasonable to have a body of scholarship inquiring into what the law should be based on philosophy, ethics, sociology, political theory, etc. etc.

            Positive law is based on authority, and authority requires legitimacy. In a democratic society, legitimacy is based on the consent of the governed.

            In a functioning democracy, it is the people who vote that count, not the people who count the votes. In a republic, it is the will of legitimately elected legislatures and constitutional framers.

            When the people who are ostensibly there to count the votes and interpret legitimate authority feel entitled to twist things their way, we are on the road to Stalin, to a world where it is not the people who vote that count, but the people who count the votes.

            1. The problem is that law professors lean far left in what is a center-right country. Hence they are not serving the country because they (collectively) are not reflective of the country.

            2. I think it’s very reasonable to have a body of scholarship inquiring into what the law should be based on philosophy, ethics, sociology, political theory, etc. etc.

              It is certainly reasonable, but I personally doubt that the training law professors receive gives them insights into those subjects better than those of a reasonably intelligent, well-read, layman.

              Why would it? How much “philosophy, ethics, sociology, political theory, etc. etc.” is included in the law curriculum? From a personal point of view, I know that legal “scholars” who venture into areas where I have a smidgen of advanced training generally put on a poor display. See “Epstein, Richard on epidemiology” for an example unrelated to my own knowledge.

              1. That’s basically right.

                When a law professor is writing about a topic such as the importance of legal precedent or the various policy arguments for statutes of limitation, that’s well within the professor’s expertise. And laymen should, in general, have some respect for that expertise.

                But when they are writing about these outside values, they aren’t scholars in them. They are just educated laymen.

  6. One of the many reasons I’m not an originalist is that originalism is largely in the eye of the beholder. Like the Bible, anyone can find what they’re looking for in the Constitution. Living constitutionalism at least has the advantage of being honest about what it does.

    Oh and by the way: if the framers in their wisdom hadn’t made it so damn difficult to amend this wouldn’t even be an issue. Those parts of the Constitution that have completely outlived their usefulness would simply be gone.

    1. Why not simply give a creative re-interpretation to “those parts of the constitution that have completely outlived their usefulness”? Adapt the meaning to the times!

    2. “Oh and by the way: if the framers in their wisdom hadn’t made it so damn difficult to amend this wouldn’t even be an issue. Those parts of the Constitution that have completely outlived their usefulness would simply be gone.”

      This is best described as a feature; not a bug.

      1. Fine, Harvey, we’ll just continue on with living constitutionalism. The alternative- having a polity that can’t adapt to current needs- looks less attractive by the day.

        1. Perhaps a republican form of government has outlived its usefulness. If people keep voting against The Right Thing To Do, why bother maintaining the anachronism?

        2. Only looks less attractive to those who can’t use argument and discussion to convince the majority to change their minds.

          1. You mean the majority that voted for Hillary Clinton, that majority? Or the majority that voted for Democratic control of the US Senate but didn’t get it because 400,000 Wyoming voters get to cancel 30 million Californians? That majority?

            If and when we have elections in which the majority actually means something, then you’ll have a point. So long as we are governed by anti-democratic institutions like the electoral college and two senators per state, the claim that liberals can’t win elections is simply disingenuous. Give us democratic elections, we’ll win them.

            1. You also think baseball championships should be based on who scored the most runs throughout the season or series, rather than who won the most games.

              Ditto for football, basketball, hockey, and other sportsball championships.

              Dipshit. The Presidency is won by electoral votes, not total popular votes. If Hillary was playing the wrong game, that is on her. If she played the right game and still lost, that is on her too.

              What would be the point of having the Senate just be a duplicate of the House?

              Just because your choice lost to people who played by the rules doesn’t give you any moral authority to unilaterally change the rules.

              1. The Presidency is won by electoral votes, not total popular votes.

                Right. Which is why talking as if the policies of the current Administration are those favored by “the majority,” is idiotic.

                The fact is that under our utterly irrational system a conveniently located minority gets to rule, despite the obvious insanity of that approach.

                You like it? OK. But don’t pretend it has anything to do with the wishes of the majority.

                1. Face it, Hillary lost because she was an inept candidate. She lost, bud, because she was incompetent. You just can’t stand that, so you blame it on the system.

                  Get over it. Grow up.

                2. You use too many adjectives. Our current system is not “utterly irrational”. Whether you like it or not, it does have reason behind it. One of the worst mistakes anyone can make is not understanding their enemy. How do you think you can be effective against the Electoral College if you don’t understand it?

                  You haven’t even answered my comparison to sportsball championships! Either the comparison flew right past you because you refuse to acknowledge any argument pro-Electoral College, or you don’t understand the Electoral College and thus are incapable of recognizing any argument in its favor, or you are just a devious malignant sore loser who’d rather mutter “sour grapes” and hope you can repeat the big lie about popular votes often enough to soothe your tired brain.

              2. What I think is that it’s complete and total hypocrisy for you to argue that Democrats should just win elections when the election system itself is set up to give Republicans an unfair advantage.

                1. If you think the election system is biased against Democrats, you are a cry baby who has somehow forgotten Obama, Clinton, Carter, LBJ, JFK, Truman, FDR, and Woodrow Wilson.

                  What a loser!

                  1. That it gives Republicans an unfair advantage now doesn’t necessarily mean that was also the case when Wilson, FDR, and others were elected. I’m talking about now, not 100 years ago.

                    And think of it this way: Suppose there were a rule that one of the superbowl teams gets a free touchdown. That doesn’t mean that the other team won’t ever win; if the other team is really good (like Obama), or the team that gets the free touchdown is really bad (like Ford and the first Bush), it’s possible the team without the free touchdown may pull it off anyway. But on those occasions when it doesn’t and the team with the free touchdown wins the game (by fewer points than the value of the touchdown), nobody except their fan base is going to believe that the reason that they won is that they’re the better team.

                    1. Riiight, because the Electoral College has changed in the last 100 years.

                      Pull the other one. In fact, pull the first one again, because you didn’t yank very hard the first time.

                    2. Demographics have changed in the past 100 years. A lot.

                    3. Krycheck, if you spent 30 seconds thinking about how since 1965 the country has taken a million immigrants in a year, 80% of which end up being Democrats, you wouldn’t have made such an ignorant statement.

                    4. mad_kalak, if that were determinative, then how come Trump won? A million immigrants a year all voting Democrat should have made Hillary a shoe-in, don’t you think?

                    5. I didn’t say demographics was a determinant. Where did you get that? You read into what people say what isn’t there almost as bad as Sarcastro.

                      You said demographics changed. They certainly have. I’m merely pointing out to you, that since 1965, it’s primarily changed to the benefit of the left, nonwithstanding the electoral college.

                    6. No it has not changed to the benefit of the left. As people move from rural, conservative states to blue states, those states are left with lower population, which gives them ever more clout under the two senator per state rule, while leaving the balance in the electoral college largely unchanged. It’s estimated that in another 20 years, 35% of the population, mostly older and conservative, will elect 70% of the Senate.

                    7. Okay. That’s a decent answer, but somewhat incomplete as to the picture it paints.

                      Unlike what you say, though, internal population migration has been out of blue states like IL and CT and into places like TX, though it’s a bit muddy as places like WV have also been losing population. IL has been losing House seats like crazy.

                      However, just based on raw numbers, the US lets in more immigrants than any other nation on earth, and most of it from the developing world. These new voters overwhelming vote Democrat, thus turning the nation, and places like VA democratic. There was a big NYT article on this, I suggest you read it: https://www.nytimes.com/2019/11/09/us/virginia-elections-democrats-republicans.html

                      Immigrants from the developing world, depending on where they come from, vote Democrat at between 60-80% of the time. If this continues, or if amnesty is granted, because Hispanics for 80% democrat, then the GOP can kiss the presidency goodbye for a generation.

                      However, due to partisan sorting, people with cultural values will want to live near those who have the same. For example, I wouldn’t want to live in CA, the least problem with that would be that some of my guns would be illegal there. So, will there still be more “conservative” representation in the Senate than their amount in the electorate? Meh. These things are always in flux and some liberal tiny place like RI gets two votes as well.

                    8. mad_kalak, I don’t entirely disagree with you on foreign immigrants tending to vote Democrat. But why is that? When the Republican Party makes being anti-immigrant a central part of their platform, and bashes immigrants every chance it gets, of course immigrants are mostly going to vote Democrat (although there are some specific types of immigrants, such as Cubans and Russians, who tend to vote Republican).

                      Now, my solution to that is to tell the Republicans to stop alienating those voters. Your solution is to limit the ability of those voters to retaliate at the polls by anti-democratic means. I like my solution better, but then, I don’t have a fixation on immigrants.

            2. As for this …

              Give us democratic elections, we’ll win them.

              You think we have republican elections now and that is why a Republican won? You are truly sad.

              I also note you want to be “given” what you crave instead of earning it or working for it. Look up Article V. There’s the process, if you can stop crying long enough to read it.

              1. This is incoherent babble.

                1. What a brilliant criticism. Scintillating! Witty! Spot on!

                  1. It may not be scintillating, but it’s right on.

            3. “You mean the majority that voted for Hillary Clinton…”

              But not a single voter voted for Hillary Clinton. Nor did any voter vote for Donald Trump. Instead they voted for slates of electors, electors who alone have power to decide who the President should be.

              It is true that state legislature’s plenary power to appoint electors includes the power to have a popular vote for electors in which the names of the electors voters are voting for are concealed from them, and in which the electors sign a worthless and uneneforcible pledge to vote for a particular presidential candidate whose name is then placed on the ballot instead of the actual electors. It’s somewhat fraudulent. It takes away the limited power legislatures actually give voters because they have no ability to vet proposed electors or determine how likely they are either to keep their word or use their discretion wisely. But it’s legal.

              State legislatures have the final say on how electors get appointed. Having a popular election for them within their state is simply one option.

              What the majority of the voters for the office of elector pooled nationally think about how they would like the electors they select to vote for is no more relevant to how a President gets elected then their opinion of who the supreme court justices should be is to how Supreme Court justices get selected. In both cases, the actual selection is by a body that, once appointed, the voters have no further say in, and is free to act with discretion.

              1. None of which has anything whatsoever to do with the fact that she got more votes than he did, about three million if I recall correctly. You’re just changing the subject.

                1. She got more votes in a meaningless race. She was supposed to be running for President, not prom queen.

                  Let’s see where else she got more than Trump.

                  “Donald John Trump” is 15 letters. “Hillary Rodham Clinton” is 20 letters. By Gosh even the alphabet is against her!

                  1. OK, you seem not to be getting the point, so let me explain it, using simple language, one last time: The point is not how we elect a president. The point is that since the way we elect a president is anti-democratic, it’s hypocritical to then say the Democrats should just win elections. Give us fair elections, we’ll win them.

                    1. “Give” again. So needy you are.

                    2. You keep changing the subject. That aside, what specifically would you recommend Democrats do, start a bloody revolution? The political realities are the conservatives are not going to voluntarily give up power. In the meantime, you can’t say “Why can’t liberals win elections” when the rules are stacked to favor conservatives.

            4. You seem to think 30 million Californians all voted one way. Where is your sympathy for those Californians who did not vote for Hillary and were disenfranchised? How many Californians didn’t bother voting at all because they knew the Democrats had a huge majority so it didn’t matter who they voted for?

              What is your proposed alternative? Do you still want each state to vote at whatever time it chooses, independent of the others? Do you have any sympathy for voters in early states whose preferred candidates drop out, leaving them disenfranchised? Don’t they get a do-over?

              Or do you want all people to vote at once on one day in a true national election? Do you realize the downsides to that, how expensive an election would be, how it would prevent so many unfamous candidates from running at all? Are you that happy to disenfranchise their voters?

              Article V, bud. Read it.

              1. I have just as much sympathy for California Republicans as I do for Mississippi Democrats, and abolishing the electoral college would mean that all of their votes would count toward the result. It’s the electoral college that disenfranchises people.

    3. One of the many reasons I’m not an originalist is that originalism is largely in the eye of the beholder. Like the Bible, anyone can find what they’re looking for in the Constitution.

      Or even delete anything they want from the Constitution. “A well-regulated militia,” anyone?

      1. Properly read, the militia clause doesn’t do anything to help the gun control crowed. After all, it is the militia that is to be “well regulated”, not the right to keep and bear arms.

        1. I don’t see regulating both of them as being in conflict.

          1. Some gun control activists have tried to argue that the militia clause explicitly authorizes the regulation of private gun ownership. No, it does not.

            1. I don’t think that’s the argument. The argument is that the Second Amendment protects state militias from the feds, and has nothing to do with private gun ownership, and that “the right of the people to keep and bear arms” refers to the people collectively through their state militias.

              And you know what? However you come down on that question, it proves my original point that anyone can find anything in the Constitution that they way. Because both that interpretation, and the interpretation that it’s an individual right to keep and bear arms, can be supported by the text. So each side finds in the text what it wants to find.

              1. The phrase “people” in Amendments 1, 4, 9 & 10 quite clearly refer to individuals, and not a collective right to, say “petition the government for redress..”

                Therefore, it’s a very, very, very strong case that the phrase “right of the people to keep and bear arms” refers to individuals, just like the other 4 amendments.

                1. “Quite clearly” in your learned opinion. The history is that there was concern the feds might seize power by abolishing or federalizing state militias, which is the whole reason for the militia clause in the first place. I’m not saying you don’t have a valid argument; just that it’s far from “quite clear”.

                  1. Check your reading comprehension.

                    I said it was a “very, very, very strong case that the phrase ‘right of the people to keep and bear arms’ refers to individuals”. Why? Because it is quite clear that the “the people” in Amendments 1, 4, 9 and 10 are individuals.

                    1. Even granting that, it’s still far from clear that the militia clause isn’t the lens through which the entire amendment should be read. I myself think it’s a pretty good argument that since the militia clause is the lead clause in the amendment, the amend is about the militia and not about private gun ownership. And even if I’m wrong, it’s “far from clear” that that’s a bad argument, especially given the history I already reference.

                    2. Fair enough.

                    3. mad_kalak, how do you make the right of assembly and the right of petition into individual rights? Seems like assembly is always at least a multi-person sort of thing. You can say, yeah, but it is individuals who hold the right, but arguing that way at least attenuates certainty that every right is individual.

                      The right of petition, although, once again, you can read it as an individual right, was, historically, rooted in the colonial experience of unavailing petitions from colonial legislatures to the British government. It was not founded on any particular historical experience of petitions for redress from individuals. Franklin, who was in a better position to judge than anyone else—he had personally presented those spurned colonial government petitions—called the fate of those collective petitions from governments the single greatest provocation leading to the movement for independence. With that as background, it becomes a bit of a historical stretch to make an originalist argument that the Bill of Rights prioritizes an individual right of petition instead of a collective one. And of course, collective petitions without government origins are another feature of ordinary experience.

                      Also, it is not clear to me why the discussion about rights being singular or collective must be confined to the Bill of Rights. The entire impulse toward independence and constitutional government by the People is utterly dependent on the notion of a collective right of self-government, and that is clear as a bell in the historical record. It is not hard to find historical records from founders who say that a collective right of self-government is the principal right, upon which all others depend. If you want a well-founded interpretation to make a case that there is a principal right upon which others depend, that collective right of self-government is the one you can support from history, far better than modern spurious assertions which cite the 2A on the basis of only a little more than modern popular belief.

                      Perhaps surprisingly to some today, it is notably easier to support from the historical record a notion of a collective right of self-government as the source of Americans’ other rights, than it is to support historically the notion that the founders prioritized preexisting individual rights that were not dependent on government. For instance, there is this from the Declaration of Independence:

                      He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

                      He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise;

                      Most of the record for a belief in preexisting individual rights among the founders (as opposed, especially, to belief among philosophically-minded civics teachers) comes from the opening statement of general principles in the DoI. But that is a partial mis-reading on its own terms, because the extremely general rights mentioned, “Life, Liberty and the Pursuit of Happiness,” can be better understood as justifications for asserting a collective right of popular sovereignty than as invocations of specific preexisting rights. The language immediately following—which is a capsule description of the principles of popular sovereignty—confirms that interpretation.

                      Then, in what follows—the DoI’s almost-always slighted list of specific grievances—there is precious little to support any notion of preexisting rights offended. Instead, there is citation after citation to items best read as offenses against a collective right of self-government.

                      Thus, in the very document most cited (by Randy Barnett, for instance) as the font of America’s belief in the existence of preexisting rights for individuals, almost every specific reference is to a collective right. I challenge anyone to read the DoI’s list of specific offenses against the American colonies and say otherwise.

    4. It’s not that it’s horribly difficult to amend. It’s that it’s horribly difficult to amend in the ways you want it amended.

      Any amendment process has to accomplish two things: Enabling good amendments, and blocking bad amendments. But, good or ban in whose opinion?

      The amendment pipeline has shut down because there’s now a sustained, systematic difference of opinion between different parts of the pipeline as to what would be good and bad amendments.

      Congress won’t originate amendments that the states would ratify in a heartbeat, and doesn’t bother originating the amendments Congress would like, both because the states would shoot them down, and because the courts are sufficiently willing to “interpret” them into the existing Constitution that the amendment process is seen as redundant.

      Article V actually has a feature to deal with this situation: The constitutional convention. It’s just that the states haven’t gotten desperate enough to risk it yet. But they’re getting there.

  7. Okay, so how long will it take for the brightest minds in the American legal firmament to realize that the common law (and its derivative form of the precedents interpreting the American Constitution) is not, and was never intended to be, a coherent or devised theory of governance?

    Mr. D.

    1. Aw, Turtle Dove, you’re spoiling everyone’s fun. The entire point of what passes for Constitutional law theory is to bring some coherent set of values to the messy, compromise patchwork Constitution and pretend you found them there rather than brought them to it. Give me an unpretentious hack any day.

      1. De gustibus.

        But here’s a better story. There’s a fellow (or lady) who lives in a very big house and would much rather be hunting. Two poor farmers from his estate come into the hall, consumed by their hatred for each other, over some particular quarrel. Instead of thinking himself Solomon, he reminds them of a quarrel that happened some time before when two people in a similar intractable opposition were reconciled, and the principle that was used to resolve it. By applying that principle, and not his own ideas about things, he receives the tradition and transmits it forward, because the two combatants before him will similarly memorize it, and the two souls from the past are called to mind. In fact, the degree of his justice will be judged by the degree to which the judgment is true to the sense of that old occurrence and not to his synthesis of all the old judgments into some coherent theory of sovereignty (a much younger line of thinking than the common law). The principle involved is greater than the mind that applies it, because it emerged from the intersubjective, intractable conflict of two minds (who, left to their own devices might each have fashioned a coherent theory of governance and sovereignty.)

        That said, from the perspective of humanism (which is to say that of those born of women), there’s nothing more true than Vermule’s theory.

        Here endeth the lesson. Cheers, and keep yer stick on the ice.

        Mr. D.

        1. I may be wrong, but I think you think we disagree. I do not think we do.

          1. No, I caught the irony. Just wiseacring arguendo to spin the idea out a bit. Cheers.

            Mr. D.

  8. You know what….I am glad we have VC. I am not frankly sure whether I agree with this hybrid approach (feels half baked right now)…but at least I am exposed to the thinking. That has intrinsic worth by itself.

  9. The entire debate is a disgrace to originalism, which is the only theory of interpretation. Not just of constitutions, but of anything written, ever, anywhere, in the entire history of the world, by anyone.

    1. Finnegan’s Wake?

      1. A perfect example.

        1. Hmm…my sarcasm detector wasn’t working for some reason. Apparently you’re not expressing your own views, but the views you attribute to…some other people (unidentified).

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