"Yes, The Founders Were Originalists"

A critical review of a new book on history and originalism.

Does history defeat originalism? A recent book by Jonathan Gienapp, Against Constitutional Originalism, argues that it does. Will Baude and I have a critical review of the book, forthcoming in the Yale Journal of Law & the Humanities, that's now available on SSRN.

From the abstract:

Jonathan Gienapp's Against Constitutional Originalism accuses originalism of a kind of self-defeat, arguing that the Founders weren't really originalists. But like Jefferson Powell's similar argument forty years ago, which encouraged a shift from original intent to original meaning, Gienapp's work may only help along a similar shift, this time from original meaning to our original law.

Gienapp makes four main claims: that the Founders' Constitution wasn't conventional law; that the Founders couldn't agree on how to read it; that much of their fundamental law was unwritten; and that no originalist theory can account for this. As we argue, the first claim is bunk; the second overstated; the third true, but no problem for originalism; and the fourth a theoretical claim that the book's history utterly fails to defend. The Constitution was indeed law, understood as such by its contemporaries, and coexisting with other bodies of law in ways that originalists routinely respect. Far from proving the case against originalism, Against Constitutional Originalism only strengthens the case for originalism, done well.

As they say, read the whole thing!

Comments

[Doug Heffernan]

Gienapp and Sachs discussed/debated some of these elements of the book during a National Constitution Center town hall event about 9 months ago.

Sachs was slightly more cordial during his direct debate with Gienapp. For example, the word "bunk" wasn't used.

https://constitutioncenter.org/news-debate/americas-town-hall-programs/for-or-against-constitutional-originalism-a-debate

[Randal]

The problem with originalism isn't originalism. The problem is that it's used as a fig leaf for results-oriented judging. Nobody in the judicial branch is doing actual originalism.

Take Heller and Bruen, the fact that those are held up as exemplars of originalism is hysterically sad. They put the lie to the entire enterprise.

[Joe_dallas]

Yes there were problems with scalia's originalism on the militia clause, but he got the individual right clause correct.

Stephens got virtually nothing correct in his historical/oringinalist interpretation.

[Joe_dallas]

Bruen has its problems, though at least it was a reasonable attempt at historical norms during the time of adoption.

[Randal]

But even the concept of historical norms or "History & Tradition" is a one-ride-only tool to get Thomas to the outcome he wanted in Bruen. He didn't use History & Tradition as a way to understand original meaning. He jettisoned original meaning and replaced it with History & Tradition. And people still call it originalism the fools!

[Joe_dallas]

Stevens last sentence of the 3rd paragraph of his dissent "Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution."

Common defence and self defence were both common phrases used to discuss the right to keep and and bear arms. A clause was proposed in the senate during the debate on the first 12 amendments to limit the right to keep and bear arms to the common defence. That proposal was voted down. Anyone doing basic historical research on 2A would know that. Stephens is flat out lying with his statement. Quite a few other examples of Stephens being loose with the originalist interpretation of 2A.

[wvattorney13]

I tend to think that Stevens was right--but for a different reason. It is not that the founders did not believe in personal self defense. It is that they believed that such a thing was so obvious and so basic that no rational government would ever consider abolishing it.

They were concerned about the very things that concerned them. The British tried to disarm the militia before Lexington and Concord. They wanted to stop that. The Brits didn't care if you had a gun for shooting squirrels or for shooting your neighbor if he needed shooting.

In many ways, this puts personal self defense on a higher level than if it had been enacted by the Second Amendment. It is certainly a privilege or immunity of citizenship and/or a substantive part of the due process clause and/or part of the Ninth Amendment.

I think Scalia trying to read a purpose into the Second Amendment that was never there to begin with has caused much of the confusion and debate over Heller and Bruen. I think a right to own an M-16 is a stronger right that permitting carry in a Wal-Mart.

However the Court wanted to make the Second Amendment into an NRA-lite, middle right command without really taking it seriously or engaging with it.

[Joe_dallas]

I on the contrary dont think got anything right. Though I also think Scalia basderized (sp?) the militia clause while getting the individual right largely correct.

My beef with the collective right is A- it makes no logical / historical sense and B - the proposal to limit 2A to the 'common defense" was voted down in the senate.

My beef with Stevens is his historical analogies used a lot of distortions and misrepresentation of the historical writing and debate.

[MaddogEngineer]

This post is as sadly hysterical as the decisions you purport to disparage.

Because the "Living Constitution" (or whatever you want to call it, more enlightened, whatever) refuses to acknowledge the clear meaning, in historical context, how one often determines the original public meaning, that the right to keep and bear arms was not merely contingent on any association with a state sanctioned militia.

The militia pre-exists any state, and is an example of the right of the people to collectively protect themselves. The militia cannot exist if individuals do not have a right to keep and bear arms. Any "objection" you might have to Heller and Bruen is window dressing trying to obscure that truth.

Both those opinions attempted to acknowledge there can be legitimate limits to the individual right imposed by government. As long as such limits do not in practice eliminate the right. Which was the status quo of the law they overturned.

[Randal]

Who said anything about "Living Constitutionalism?" As far as I can tell that's just a strawman, I haven't heard of anyone defending that theory in like 50 years.

Like I said, originalism would be great, if only that's what judges were actually doing.

The militia cannot exist if individuals do not have a right to keep and bear arms. Any "objection" you might have to Heller and Bruen is window dressing trying to obscure that truth.

You obviously don't understand my objection. A militia also cannot exist if individuals don't have a right to keep and bear arms that are appropriate for a militia! That's what Scalia took away in Heller... in the name of originalism!

[Riva]

The problem with the critics of originalism is that that they fail to posit any other theory of interpretation that would constrain the excesses of judicial politicking in the guise of “reasoned judgments.”

[Randal]

How about:

1. An individual right to keep and bear arms
2. For the purpose of facilitating state militias
3. Which shall not be infringed.

Seems pretty clear cut to me. What's not in there, though, is armed self-defense and hunting, Scalia.

[Joe_dallas]

A - you ignore - Common defence and self defence were both common phrases used to discuss the right to keep and and bear arms. A clause was proposed in the senate during the debate on the first 12 amendments to limit the right to keep and bear arms to the common defence. That proposal was voted down. "

Kinda hard to ignore a proposal that would have limited 2a to times of serving in the militia.

[Randal]

Who said it was limited to times of serving in the militia? You keep putting strawmen in my mouth.

[Joe_dallas]

Randal 38 minutes ago
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"Who said it was limited to times of serving in the militia? "

Everyone that argues its a collective right.
Do you understand the logic of your argument or the logic of the collective / militia argument?

Under the collective argument, the right to keep and bear arms is only "protected" under the bill of rights when serving in the militia. At all other times, its is not protected under the bill of rights. The difference is that it is not "protected" except when serving in the militia.

[Randal]

Did you even read my point #1?

[Joe_dallas]

Randal 1 hour ago
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Did you even read my point #1?

Yes - I was responding to your 2nd 3rd and 4th point - which was was undercutting your first point. Specifically this statement:

"Seems pretty clear cut to me. What's not in there, though, is armed self-defense and hunting, Scalia.

As I stated - "A - you ignore - Common defence and self defence were both common phrases used to discuss the right to keep and and bear arms. A clause was proposed in the senate during the debate on the first 12 amendments to limit the right to keep and bear arms to the common defence. That proposal was voted down. "

"Kinda hard to ignore a proposal that would have limited 2a to times of serving in the militia. " which your point #2 implies and which Stephens dissent implies. He states that there is an individual right, but then turns around and states its only an individual right which serving in a militia, and most every other gun control limit is constitutional

[Randal]

Stephens may have implied that it would have been limited to times of serving in a militia, but I'm not implying that. I think for a militia to be effective, individuals have to be able to keep and bear arms all the time, so that they're ready to serve in a militia should the need arise.

But I do think Heller should have come out the other way, since keeping your gun locked up, for instance, has no or negligible negative impact on militia readiness. It's probably a net positive impact actually -- proper weapon handling and storage is a big part of military readiness after all.

[Joe_dallas]

You and everyone else advancing the collective right argument is asserting the 2a right is only protected when serving in the militia, at all other times it is an unprotected right with the exception of keeping but not bearing arms when not serving in the militia.

Again - your point #2, , #3 and 4 undercut your statement

[Joe_dallas]

Stevens would add words to the Second Amendment to read, "the right of the people to keep and bear arms when serving in the militia shall not be infringed.

[Randal]

You keep saying I think it's a collective right, and I keep saying I don't, so it seems to me you're trying to debate the voices in your head, not me.

[Joe_dallas]

Randal 14 minutes ago
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"You keep saying I think it's a collective right, and I keep saying I don't, so it seems to me you're trying to debate the voices in your head, not me."

You are pulling the same stunt that Stevens pulls in his heller dissent - He starts with his statement that it is an individual right, then puts so many caveats that it is only a protected right when serving in the militia.

See your points 2,3 &4 -You have done the same, in spite of claiming otherwise.

[Randal]

I don't think the fact that our individual rights arise in order to fulfill some purpose makes them "collective." The idea of a "collective right" is a different sort of thing entirely. I think you're just misusing that term.

In fact it seems pretty obvious that individual rights aren't just free-floating, they all have some reason to exist.

Our First Amendment rights are restricted by purpose, and in that case the purpose is implicit so it's even harder. But still, the individual right to free speech doesn't include, for example, defaming people.

Similarly, we all agree that the right to keep and bear arms doesn't include bearing arms for the purpose of robbing a bank, for example. It doesn't even include bearing arms for the purpose of intimidation!

So no matter what, you need to say what the purpose of the Second Amendment actually is in order to understand its contours. The prefatory clause seems like a good place to start!

[Joe_dallas]

B - A well regulated Militia, being necessary to the security of a free State.

"being necessary to the security of a free state (a free society)" describes the purpose of the right of the states to have militia's. The militia clause does not describe the purpose of the individual rights.
Both rights are separate and distinct.

[Randal]

Nobody believes this theory of two distinct rights.

[Riva]

Randal, that's not even what the text of the 2nd amendment actually says. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” You're not off to a great start by rewriting the text and then suggesting that an analysis of a rewrite based on nothing more than your own personal bias is somehow superior to Scalia's textualist analysis of the operative cause of amendment in an historical context.

[Randal]

Wait what part are you suggesting that I rewrote? You're concerned that I specified that it's an individual right? That I left out the fact that the militia needs to be well-regulated? What?

[Riva]

Are you that oblivious? The amendment clearly does NOT say " An individual right to keep and bear arms for the purpose of facilitating state militias..." You've turned the amendment upside down and made the prefatory clause into something that limits the operative clause. This was not how the amendment was written. You have composed a new amendment, which is what happens when one has no guardrails to constrain interpretation.

[Randal]

It does say exactly that... "being necessary" is a way of indicating a purpose.

You, on the other hand, seem to think the prefatory clause is surplusage. The one piece of the Constitution you think is meaningless. What a very convincing bot you are.

[Riva]

The point, you imbecile, is that it is not a limiting condition as your jackass rewrite makes it. But you have convinced me there’s no arguing with a blithering idiot, if that’s any consolation.

[Sarcastr0]

I heard namecalling was something you found offensive.

Maybe that's only when it happens to you, not when you do it?

[Riva]

What are you? The rescue troll? I guess you missed the blithering idiot’s parroting of the same bile you hack clowns always regurgitate when you lose an argument. Or is this another alias of yours in the rent a troll store?

[Randal]

I never said it was a limiting condition. I said it was a stated purpose.

Strawman much? Yes, you're a bot, that's what bots do. The bot bit.

[Riva]

Yes, yes you did blithering idiot. You claimed it excluded any other purpose, like self-defense or hunting. Now sod off clown.

[M L]

Whereas the alternative to originalism is . . .

Fill in the blank, please.

A fig leaf for fig leaves? Results-oriented judging as a fig leaf for . . . results-oriented judging?

[Randal]

Well, if it turns out that originalism is a good idea in theory but impossible in practice, then I think plan B is textualism. You get to look at the words and that's it. No bringing in a bunch of outside elements which seem inevitably to sway the analysis towards a predetermined outcome.

[wvattorney13]

Textualism has to be backed up by something. When you said "plan B" were you referring to the abortifacient?

Of course not. But to know that, I have to go by more than just the text. That's where originalism comes in. People today reading your post know that it has nothing to do with abortion. That's a solid hook to say that Randal wasn't talking about abortion drugs.

[Randal]

Textualism has to be backed up by something.

Only in the case of ambiguity, and then only the minimum to resolve the ambiguity.

So-called originalist analyses these days don't even start with the text. Look how many people in these very comments are telling me that to understand the original meaning of the 2nd Amendment I need to start by ignoring the text and instead look at the ratification debates or historical practices or whatever nonsense they think backs up their priors.

[Brett Bellmore]

Literally nobody is telling you to ignore the text. Maybe to take a refresher course in English grammar, but not to ignore the text.

[Randal]

Rivabot is.

[wvattorney13]

I agree with you, but perhaps from a different side. The result reached it Bruen and Heller seem to have been pre-ordained and the rationale being left to a Justice to get to the result---I'll give you that.

The most offensive thing about those opinions is that even in the case itself, they didn't follow the rationale. Scalia dropped this bomb in the middle of the opinion:

"Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

That paragraph is completely unsupported by everything that came before it. All of those carve outs are forbidden by the expansive right that Scalia previously laid out.

Bruen did the same thing by declaring that banning carry in sensitive areas and shall issue concealed carry were constitutional.

Again, those were just bald declarations that were made by judges who refused to follow their holdings to its logical conclusion. They wanted the result: get rid of the ban on possession and carrying of handguns, but let's not go one step further. That has caused the whole area of law to be filled with confusion.

You cannot really blame lower court judges for not applying Bruen and Heller when the Court itself does not apply the logic of Bruen and Heller in those very cases.

[Brett Bellmore]

Yes, I've often said that both Stevens and Scalia went into Heller pretending to do originalism, but neither actually did follow it.

The only difference is that Stevens wanted the 2nd amendment rendered entirely moot, while Scalia was content to just somewhat neuter it.

What really offended me about Heller was Scalia taking Miller, (Which held that a gun wouldn't be covered by the 2nd amendment if it LACKED military utility.) and turning it upside down to not protect ownership specifically of military arms.

[Sarcastr0]

If you don't follow BrettLaw you're a fake originalist.

[Joe_dallas]

Some day, there will be a cure for your obsession with Brett. Unfortunately, you have a hatred for rational thought, logic and common sense which explains your obsession.

[Michael Resanovic]

Scalia could be quite dishonest at times.

[Brett Bellmore]

Of course nobody in the judicial branch is doing actual originalism. According to actual originalism most of what the federal government is doing today is grossly unconstitutional.

There's no way anybody who was known in advance to be a principled originalist is going to be nominated to the judiciary, let alone confirmed, save by an extremely unlikely accident. And not even by accident for the Supreme court.

[Sarcastr0]

BrettLaw again!

[Randal]

This is a fatal flaw with originalism, don't you think?

[Taco8647]

MAGA litmus test change:
Originalism out; Unitary Executive Theory in.

The whole originalism argument might very well be obsolete if the red team stays nuts.

[CommentMonkey]

I don't understand why it matters whether the Founders were originalists. They gave us a constitution structured such that two branches of government are subject to regular elections; their mistakes can be corrected at fixed intervals. At the top of the third branch are nine judges with life tenure. It seems inherent in that structural choice that the nine should not have the power to sit as philosopher-kings. Why bother with the hassle of elections for the legislative and executive if the judiciary gets to exercise legislative power?

So originalism seems a natural outgrowth of the structure the founders implemented. It is the most reliable way to confine the judiciary to its proper role. Not perfect, to be sure, but far better than any "living constitution" scheme. I don't much care whether or what the founders thought about originalism. They gave us a structure that works best when the judiciary is strictly limited in its exercise of legislative power. Originalism is the best such limit.

[Randal]

Again, why do people keep saying "living constitution?" Who have you heard putting that idea forward in the last several decades?

[CommentMonkey]

It's shorthand for the various theories that allow a judge to make policy choices in the course of deciding cases. I realize that verbiage may be a little dated but I'm not sure what the term du jour is.

[JoeFromtheBronx]

allow a judge to make policy choices

I think the term favored is "originalist."

[Randal]

I'm not sure what the term du jour is.

Joe beat me to it. But yeah, "originalist."

[Joe_dallas]

Randal 17 hours ago
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Again, why do people keep saying "living constitution?" Who have you heard putting that idea forward in the last several decades?

You just did - you may have called it something else, but you still endorsed the living constitution.

[Randal]

I did? Where?

[Joe_dallas]

With most every post you made.

One of which is when you pulled the Stevens stunt - agreeing that there is an individual right - an individual right that is only protected when serving in the militia.

[Stephen Lathrop]

CommentMonkey — Problem is, as sensible as your retrospective analysis may seem to you—and I congratulate you on a better-than-usual speculation—it is a historical irrelevance. The founders knew nothing of retrospective import about American constitutionalism. Your sort of practical assessment lay beyond their power. American constitutionalism had not yet been tried for even a moment. Everything about its practical application—including conclusions such as your own—lay in the founders' unknowable future. They could not share your viewpoint, because what you can see looking back, they could neither see nor imagine looking forward.

You will search the historical record in vain for evidence of anything that suggests consensus about interpretative methods which ought to be applied going forward. Even founders who felt at liberty to speculate proclaimed doubt and ignorance. Any intellectually honest take on originalism must begin there—with acknowledgment the founders did not practice originalism, did not call for originalism, and did not know of originalism.

Alas, your own retrospective scheme falls apart, because your last sentence is mistaken. It assumes a valid capacity among Supreme Court Justices to do historical research of their own. No such capacity has ever been demonstrated.

Historical research is an activity more complicated than its appearance suggests to laymen. The intellectual challenge is akin to making sense of science fiction tales of time travel, fraught with paradoxes like a time traveler doing something inadvertent to prevent the birth of his own ancestors.

There are methods to better meet that challenge. There are methods which guarantee defeat. The former must be laboriously studied. The others result when would-be historical analysts blunder in unaware.

The most succinct presentation I know of to discuss how to distinguish those methods comprises about 130 pages of prose so impenetrable that its author (Michael Oakeshott) might better have expanded his argument to 600 pages, or a thousand.

Or instead compressed it to five sentences, thus: The original meaning of any text is only slightly definitional, but overwhelmingly contextual. To suppose a valid originalist method requires presumption of capacity to read an antique text in the context which applied then and there, at the time and place it was created. But whenever such a text happens to survive into the present, it arrives here and now absent its original context of creation. That went unrecorded at that time of creation, does not adhere to the text itself, and is invariably forgotten almost immediately. Thus, original context must be re-created by means of valid historical inferences, and never on the basis of present-minded presumptions based on modern context, of which the creators of the text were unaware.

Your good idea is an example of what should never happen, at least if originalism is to mean anything related to history. Reconcile yourself to what you reject as living constitutionalism, and you may take full credit. But that will still leave the problem that living constitutionalism is what Justice Thomas practiced in Bruen, without appreciable sign of constraint from historical analysis, which Thomas was incapable to practice, and did not attempt, no matter what he or others uncritically asserted he was doing.

[JoeFromtheBronx]

Because the "Living Constitution" (or whatever you want to call it, more enlightened, whatever) refuses to acknowledge the clear meaning, in historical context, how one often determines the original public meaning, that the right to keep and bear arms was not merely contingent on any association with a state sanctioned militia.

Justice Stevens in Heller argued, however wrongly people might think he argued, the meaning, in historical context, of the Second Amendment. What this amount to is a dispute on the merits. There was no "refusing."

Many historians, judges, and scholars in general have supported his approach. Some very well are not what people would call "living constitutionalists."

Not surprisingly, since constitutional debates are myriad, especially in carefully negotiated compromise document that leaves many things opaque, there is a big debate on what is "clear."

George Sutherland, one of the so-called "four horsemen," once said:

while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles, statutes and ordinances which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution of course must fall.

"Equal protection" means treating people equally. What is "living" is the exact scope of application. So, e.g., we now have more knowledge about homosexuality. Marriage develops in certain respects -- no more coverture -- and so on.

The elastic nature is also referenced by CJ Marshall, a ratifier, in McCulloch v. Maryland. I reckon, in some ways, he was "enlightened," yes.

[wvattorney13]

""Equal protection" means treating people equally. What is "living" is the exact scope of application. So, e.g., we now have more knowledge about homosexuality. Marriage develops in certain respects -- no more coverture -- and so on."

In other words, equal protection means whatever a particular judge wants it to mean in the moment. That's no way to run a system of government.

Do you think that when legislators were passing Married Women's Property Acts that they thought they were sowing the seeds for same sex marriage? They would have laughed at such a proposition and so would any judge prior to the year 2000.

But once you or Obama's opinion "evolves" to the point where you believe that same sex marriage is a positive, then the Constitution simply must demand it. That is a complete undermining of representative government.

In my view, equal protection of the law means what it did in 1868. Any new things need a new amendment.

[JoeFromtheBronx]

In other words, equal protection means whatever a particular judge wants it to mean in the moment. That's no way to run a system of government.

The government applies the Constitution today. That's reality.

What executives, legislatures, judges, and all the rest apply is the Constitution today. There are various things that factor into that application, including when judges apply it. Not just "wants."

Do you think that when legislators were passing Married Women's Property Acts that they thought they were sowing the seeds for same sex marriage? They would have laughed at such a proposition and so would any judge prior to the year 2000.

How "due process of law" will develop over 200+ years would, in various ways, surprise people who ratified the Fifth Amendment. As John Marshall said, they only "dimly" knew how that would be.

Many of the decisions of Scalia or Thomas would amaze people of that day. The law has developed a lot since then.

But once you or Obama's opinion "evolves" to the point where you believe that same sex marriage is a positive, then the Constitution simply must demand it. That is a complete undermining of representative government.

I don't have that much power. Nor does Obama.

OTOH, as the law develops, including by people we voted for or judges they nominated and confirmed, applying the Constitution, over time, same sex marriage (which many understood as a thing before 2000), things like "equal protection" or "cruel or unusual" develop over time, including as new knowledge informs us.

In my view, equal protection of the law means what it did in 1868. Any new things need a new amendment.

You are just talking past me. What "the law meant" in 1868, in relevant part, is that basic principles like "equal protection" are secured. The exact meaning of that will rest on current knowledge and the development of the law over time.

[wvattorney13]

"I don't have that much power. Nor does Obama."

You're right. You have to be Anthony Kennedy.

[Sarcastr0]

I don't love Kennedy's opinion-writing style but saying he didn't listen to precedent and base his opinions on the current state of law is laughably wrong.

Compare and contrast Obergefell and Lawrence with Dobbs.

Where did you go to law school?

[JoeFromtheBronx]

The person (here at least) rather toss out favored bugaboos than really engage with the arguments.

[sparkstable]

"The law has developed a lot since then."
But that "development" has not been the result of coldly applying the known, knowable, or clearly stated dictate of the law as it is.

A lot of that development has been "We now recognize that the law as it is causes problems for what we also believe to be good and right. We want the law to be good and right, as it should be. Ergo, we will rule in a way to make it so."

And there is good reason to want to do this... the law SHOULD be good and right (as good and as right as we can get it). The problem is... the law should also be inflexible, cold, and as-is at all times... otherwise it isn't actually law but mere application of power by those with the opportunity to decide how things are.

So when a future society comes up against a law that is then deemed to be bad... the correctly solution is not judicial. The judges job is to force society to live with its choices and to force the state to live within the rules it was given. That's it, no more or less. The moralizing and the fear of letting a bad law be applied has caused us to warp law out of a sense of good nature... but that good nature has perverted the law into something that would be unrecognizable to the Founders not merely because "it has developed" but the reasons it developed as it did.

The solution is cold law, and active law-making (and an understanding that law-making does not always mean making new laws, but deleting and/or editing laws as need be). If our legislative branch would spend its time managing the law instead of leaving that to the courts, and if our courts forced our elected representatives to suffer the electoral consequences of failing to update law as society deems it necessary, then the law would be much cleaner and we would have Rule of Law again (or a closer estimation of it) and less Rule of Man as we have now.

[JoeFromtheBronx]

"law should also be inflexible"

The law, and this was the original understanding, too, is flexible.

The Constitution was purposefully written to have some flexibility so that it could be applied over time. That is also sound.

The legislature doing more is appropriate in many ways. I think the New Deal was constitutional. But, this "cold law" stuff is more ought (in your view) than is.

[sparkstable]

The law can be molded... and altered. That does not make it flexible.

Flexible means that it could mean one thing, it could mean another. As such, one man could suffer under one version of a law and another could walk free under a different version of the same law. That is not Rule of Law in any construction.

That the system allowed for the law to be changed... that is where the flexibility lies. As long as something is law... it is what it is and shall always be. The end, nothing more or less. Apply it universally the same at all times and places.

If we, the people, do not like that... then we can change it. The ability to change law through a lawful (and I use that word specifically to conjure the same notions of "concreteness" of how things should be) process is what gives it flexibility.

You seem to be conflating the ability to re-write law with the idea that we should just "read" it differently when our conscious dictates. That is not a flexible law, but an undisciplined application of power by man. And that is the problem.

[JoeFromtheBronx]

Flexible means that it could mean one thing, it could mean another.

People, including those involved in its framing (Madison v. Hamilton), disagreed over what it meant.

The bare text had different reasonable meanings. Over time, its broad terms were applied in a variety of changing ways.

one man could suffer under one version of a law and another could walk free under a different version of the same law

Due process has changed over the years. What someone was arrested for in 1900 and 2000 has changed. This is not a violation of the rule of law. Evenly applied law is required for the rule of law. It doesn't mean exactly the same over centuries.

Change

Everyone agrees that there is an ability to amend the Constitution. The debate is over when that is required.

seem to be conflating the ability to re-write law with the idea that we should just "read" it differently when our conscious dictates

I'm not arguing for some open-ended ability to interpret it differently because it feels right. Or that it is morally necessary. Slavery was immoral. The Constitution itself supported it in certain ways. You couldn't just ignore that.

OTOH, exactly how much power Congress had, the rights of blacks, or even the rights of slaves (being "persons), was unclear. The exact application was somewhat flexible & over time there was changing understanding on what was appropriate as facts and other things changed.

[sparkstable]

Hamilton was pretty clear in promoting vague language concepts so that there could be no hard rule. He didn't want that which means he definitionally did not want a clear Rule of Law but an ability to claim as mich while operating on a Rule of Man system. See the debate between Tom Woods and Michael Malice on this point.

You point out that what we do now is different from a hundred years ago. That is begging the question. You point to what is and declare it therefore is what ought to be.

I point to what is and declare it is proof that we abandoned what was, the Rule of Law, for what is, the Rule of Man. The very fact that you concede that a person is treated differently before the law than another with nothing changing but the date on the calendar proves my point. That is not Rule of Law by defintion. If the law was not altered, the government ought not alter how it treats those before it. Precedent is an important feature of justice, even if it is not nor should it be an unchallengable (is that even a word?) aspect of justice over time.

That everyone agrees that we can amend the Constitution (or even simply legislatively change or remove law) proves the unnecessary need to have change applied from the judicial bench. The moment you do so you admit "Yes, the people should rule. Yes, the people can make a decision as to how they want to rule. Yes, there is a process to do this that legitimizes the change. Yes, cases ought to be bound by those changes. But let's bypass all that and just have a judge declare it so and save some time."

That a judge *does* do this and that such is being defended is proof that someone rejects the separation of powers, the concept of Rule of Law, and merely wishes their preferences be put into action via state power and have it sanctified by their own good intentions with nothing more needed.

That is the problem. You can not have a system of equality before the law *and* a system of evolution and change and updated mores and norms. You can only have it if all you have is the law *as it is*. Any changes that society deem are necessary society can make via legislation. Judges are explicitly called to *not* do this but merely *apply* this unless and until it changes again in the future via another legislative act.

[Stephen Lathrop]

wvattorney13 — Alas for your interpretation, "In my view," is a view different than any available to anyone alive in 1868. They knew nothing of now, or of any occurrences between then and now, which unconsciously inflect your uncritically applied context.

Your assumption of continuity of meaning from then to now is thus demonstrably spurious. They knew nothing of you, of these times, or of a great deal which you think is obvious from texts which you read in ways which would be jolting to them, if you were set down among them without explanation. The contrast would be yet more troubling were you set down in the founding era.

The first thing you would have to do to avoid those jolts would be to omit from consciousness every influence which happened during the interval between then and now. Want to do all that?

Go to graduate school, to study academic history. Pick a time and place to specialize in. Then read everything which defined the knowledge of a highly educated and culturally aware person at that time and place, and stretching backward. Also—more important and far more difficult—forget everything you think you know which occurred after the era you chose to study. All of that was unknown then, and thus not available to shape either factual knowledge or opinions.

Get all of that subsequent stuff out of your head. Do it to the point where if anyone says anything reliant on that information, you respond with the same sense of puzzlement and surprise that a native of your era under study would experience.

Good luck doing that without professional academic help. Also, notice that the ambition required to qualify your insights comes at such an extravagant price in time and effort that you will never succeed to make yourself expert in any but a limited range of times, places and historical occasions. Whenever you see someone who purports historical insight stretching over centuries, and encompassing continents apart, you are entitled to dismiss what they say. No one lives long enough to learn that much, and no one has ever done so.

Good luck to you. Or not, if you persist to expect you understand antique texts present-mindedly, because you can read the words.

[Brett Bellmore]

Equal protection of the law basically meant that, if it was illegal to murder Bob, it has to be illegal to murder Sam. Everybody is equally protected by the law, nobody can be placed outside its protection.

This was a response to the Southern states refusing to enforce ordinary laws against assault or theft if the victims were black. It wasn't about any right except the right to be protected by the law from criminality in the same way anybody would be.

Substantive rights were supposed to be guaranteed by the Privileges and Immunities clause. Only the Slaughterhouse Court gutted that in order to end Reconstruction, and for whatever reason, the Brown Court didn't want to just overturn the Slaughterhouse decision. So the went with 'substantive due process', incorporating via the wrong clause.

[Sarcastr0]

You'd take us back to Plessy, so long as we did a better job making things equal.

The law is not a perfect platonic edifice.

And you will never stop complaining that the law isn't exactly to your personal spec.

That's not how it works, not how it's supposed to work (see the inflexibility bit above), and the framers and founders were aware of this.

[Joe_dallas]

Sarcastr0 2 hours ago
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Mute User
"You'd take us back to Plessy, so long as we did a better job making things equal"

Gaslight - you are making $h-- up. You have to lie to make an unfounded accusation.

[sparkstable]

Not because Plessy was right, but because the system that produced it was preferable.... the avenue used to correct the outcomes of the system we did not like was wrong.

Keeping the Rule of Law even when it keeps bad law in place for longer is preferable to the Rule of Man even if it means the ability to get rid of bad law in a moments notice. In the short term we all would want Rule of Man to fix problems now... justice delayed is justice denied and all that. There is an element of truth to that. But it does not exist in a vacuum. In the long run it is better to fix problem laws via legislation so that the decision arises out of the (as best as we can capture it) will of the people via our representative system. This is preferable to a judge deciding what we "really" want or need and finding ways to birth that into the law that, just the day before, everyone understood did not mean that. EVEN IF the people want what the judge wants... we are still just people, men, bound by law if Rule of Law means anything. We bind ourselves to our bad decisions. This is good as it forces us to be sober and wise with our decisions.

There are ways outside of a judge's declaration to fix bad law. Those ways are the method we chose to be a system of the people. A judge fixing bad law is wholly outside that system and everyone knows it... except when they agree with the judge with their preferences about what they wish the law was.

[Michael Resanovic]

Privileges and immunities, rightly understood, would prevent Plessy, as it disallows caste systems.

[wvattorney13]

To put a finer point on it, the EP clause meant that if a white man was punished for mopery by a $50 fine, then a black man should be punished with a $50 fine----not 2 years in prison and under a convict lease system. The southern states were reenacting slavery.

We didn't fight a bloody war with 600,000 dead for the status quo ante. We needed to destroy the slavery system that had caused conflict for the first 90 years of our country's existence. The south was putting it back by another name.

It simply had nothing to do with women, for example, and voting, and I know we disagree about this: anti-miscegenation laws. Don't misunderstand me--all of these developments are positive goods, but they've also got us Roe and same sex marriage. The 14A has been wildly misapplied.

[JoeFromtheBronx]

I think some people discuss this issue with some confusion.

A reference is made that is concerned about judicial supremacy running riot. Nonetheless, the issue here is originalism.

"Originalists" regularly argue that courts should restrain legislatures to uphold "the law."

If a supermajority of Congress, with the support of the nation, wants to do "x" and the original understanding holds it is unconstitutional, judges can correctly practice judicial review. This is so even if the supermajority, etc., is applying a reasonable modern understanding of the text.

There is also confusion over textualism. Originalism is not mere textualism. Originalists appeal to the original understanding of the meaning of the text. They appeal to the "plan of the convention" or the originally understood spirit of the text.

The bare words of the Commerce Clause, for instance, are not addressed. We are told its purposes (in many cases) that supposedly require a narrower application than the text warrants.

The text of the Equal Protection Clause does not protect homosexuals in various respects. Why? It is absurd since people in 1868 wouldn't have expected it. But, the text alone isn't a barrier. It is a gloss put on the text.

Now, that alone is not a problem. Text alone will not settle all questions. Still, let us understand that textualism and originalism are not the same thing. Often, so-called "living constitutionalists" (one wag said we should just talk of "constitutionalists") apply the text more particularly than originalists do.

LCs regularly appeal to original understanding, too. It is not just a device (see also religion) to obtain conservative results. OTOH, when that happens, supposedly it is being done wrong.

[tkamenick]

Well, yeah. That was why they wanted a WRITTEN constitution. Other countries had constitutions - the sets of generally agreed-upon rules by which their governments ran. But they wanted to put it down in writing so it would be set and could only be changed in a very deliberate way. The very soul of originalism.

[Randal]

There seems to be a lot of disagreement here about what originalism even is (e.g. the last two posts above). Not a good sign.