Constitutionalism and Reasonability

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Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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  1. Avatar Francis
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    “Its interpretation today should be guided by the original public meaning of the text.”

    Why?
    How are you planning to determine it?
    How are you going to avoid putting your own biases into your analysis of the source material? Can you even think of an approach to the analysis that would pass muster as a science experiment (ie, a falsifiable analysis)?
    Since the 14th Amendment was an enormous expansion of federal power, shouldn’t the original public meaning as of the date of the adoption of the 14th Amendment apply?
    Since WWII, Americans have built a globe-spanning economy of literally unprecedented wealth based on a strong federal government and a national administrative state. It seems to me that 75 years (more or less) of precedent count for something.Report

    • Avatar Jason Kuznicki in reply to Francis
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      How are you going to avoid putting your own biases into your analysis of the source material? Can you even think of an approach to the analysis that would pass muster as a science experiment (ie, a falsifiable analysis)?

      Not as science, but then, no political anything is ever science. Still, there is good history and there’s bad history. The borders will to some extent be doubtful, and they would be in any case, but they are not infinitely so.

      Since the 14th Amendment was an enormous expansion of federal power, shouldn’t the original public meaning as of the date of the adoption of the 14th Amendment apply?

      Yes, absolutely. (Was this supposed to be a difficult question?)Report

    • Avatar Dave in reply to Francis
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      Since the 14th Amendment was an enormous expansion of federal power, shouldn’t the original public meaning as of the date of the adoption of the 14th Amendment apply?

      Yes and under that meaning, cases like Romer v Evans and Lawrence v Texas can be justified on originalist grounds.

      The concept of privacy in constititonal law pre-dates Griswold v Connecticut and can easily be ascertained by the plain meaning of either the Privileges or Immunities or Due Process Clauses. Unfortunately, that’s enough to make both liberals and conservatives choke.Report

      • Avatar Koz in reply to Dave
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        Really? Care to make a go of it?Report

        • Avatar Dave in reply to Koz
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          Randy Barnett wrote a law review article defending Lawrence v Texas on originalist grounds. The short-form version of it is here:

          http://old.nationalreview.com/comment/comment-barnett071003.asp

          As far as the concept of privacy, one of the characteristics of state police power jurisprudence pre-dating the Fourteenth Amendment was a concept of neutrality in that courts were generally hostile (but far from perfect) towards “class” legislation (“special” may be more appropriate) that was aimed to benefit or burden a one group to the detriment or benefit of others. One of the best summaries of this doctrine was articulated in Justice Chase’s opinion in Calder v Bull. Laws that were meant to regulate the public had to do just that, and by public, laws were to apply to everyone and have a valid public purpose.

          The freedom of contract cases in the early 20th century were in effect privacy cases because per the state police power doctrine, if an enterprise was not deemed to be “affected with a public interest” (see Munn v Illinois), it was not the government’s business to set wages, prices or regulate hours. Two individuals setting the terms of a contract was deemed a private matter.

          This didn’t only apply to economic and property rights but also to civil liberties (although the case law for civil liberties didn’t really kick into high gear until the Warren Court). The two key precedent cases for Griswold v Connecticut are Meyer v Nebraska and Pierce v Society of Sisters and both intruded into an area that was distinctly private (the choice of how to educate one’s children). Unfortunately, Justice Douglas misrepresented the precedent and proceeded to write one of the most idiotic opinions that I’ve seen for a case that was very rightly decided.

          I think Lawrence and Romer, although decided on different 14th Amendment grounds (the former being Due Process and the latter being Equal Protection) have their roots in classical liberal police power jurisprudence largely because, like their predecessors, fundamental rights analysis was not applied. Using Lawrence as an example, the Court simply found that the anti-sodomy law geared only at individuals of the same sex was an arbitrary use of power against a group of individuals for reasons that had nothing to do with a valid public purpose. The pre-1937 14th Amendment cases were decided in this manner, as rather than identifying rights, the Court ruled that the statutes violated the Due Process Clause and were impermissible uses of its power.

          Why this doctrine no longer exists in its form is a whole other story, one I won’t get into for now.Report

          • Avatar Koz in reply to Dave
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            I disagree with most of what Randy Barnett wrote there. Leaving that aside for a moment, I don’t see how you or he could see that analysis as originalist.

            Basically, Prof. Barnett is arguing for the incorporation of the enumerated powers-ness of the federal government to the states. It’s difficult for me to see how the Framers of the 14th Amendment could have possibly intended that as opposed to protecting the political rights of blacks in the Reconstruction Era south.Report

  2. Avatar RTod
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    Jason, I thin the question you ask near the end sums up why I think Mark was spot on in his earlier post:

    “But if we take the First, Fifth, and Fourteenth Amendments at their word, and if we affirm the principles of religious freedom, freedom of association, and equal protection of the laws, are we not eventually forced to concede that same-sex marriage should be allowed?”

    More than any other issue right now, I think this illustrates perfectly how we all think interpreting the Constitution is a simplistic exercise, but end up all over the map. There is perhaps close to a majority (or maybe an actual majority) that believes the answer to that question is yes – obviously so. To the point that to deny said marriages is a travesty of justice, and a clear tansgression of their civil, religious and basic human freedoms. On the other hand, there is perhaps close to a majority (or maybe an actual majority) that believes the answer to that question is no – obviously so. They believe that to seriously consider allowing said marriages is a travesty of justice, and a clear tansgression of their civil, religious and basic human freedoms.

    You will never get the other side to agree that they are wrong, any more than you will get the other side to consider (for very long, anyway) that your side is not just cynical legal maneuvering.Report

    • Avatar Jason Kuznicki in reply to RTod
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      I do not believe constitutional interpretation to be “simplistic.” It’s difficult work, and it remains possible that I am wrong.

      Nor do I imagine that I will necessarily convince the other side. Questions of a political or moral nature don’t admit of geometric proof.

      If you imagined I was saying either of these things, you were mistaken.Report

      • Avatar Turgid Jacobian in reply to Jason Kuznicki
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        But when it comes to laws, a thing is either fish or fowl. A binary choice is required–what chaos you are bound to have, given your “oh we can’t know *exactly* what they meant, surely getting close is good enough!” stance! That kind of indeteminacy is not good enough to form the basis of our legal system.Report

  3. Avatar ThatPirateGuy
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    Republican arguments about the original intent would be more welcome if they didn’t invite cranks like David Barton to tell them how it was.

    I know this doesn’t apply to you Jason but I had to get it out of my system.Report

  4. My only quibble (and its a fairly big one) is that things weren’t really as cut and dried back then as we like to make them out to be. When we talk about “original intent”, etc., we tend to think of the framers as a single voice, raised in harmony, chanting the majest of some Original Ideal. Except that they werent. Over and over again, they not only differed on what they wanted to accomplish, they “weasel-worded” their way into keeping things Just Vague Enough so that they could all get their point of view in (really, not unlike the way things work today. The more things change…)

    Start with the easiest part – the first amendment. Easy right? Except that Freedom of speech was originally intended to be more Blackstone like, i.e., “you can say whatever you want, and we can lock you up or saying it”. Chilling effects indeed! (Geoffrey Stone sez. it far better, and in much gorier detail, in his book “Perilious Times”). Church and state? The process resembled nothing so much as sausage being made. “Establishment of religion” meant about half a dozen different things, and remember, back then Catholics and Protestants were *not* both “Christians”, but more like todays divide between the more dire forms of Evangelism and Islam (again, Steven Waldman sez. it much better in his ‘Founding Faith’)

    The list, of course, goes on (how about that comma in the second amendment? etc.)Report

    • Avatar Michael Drew in reply to Mahesh Paolini-Subramanya
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      Yep. There was no Constitutional Garden of Eden; there was never any one Original Public Meaning. It’s all war of ideas all the way back.Report

    • Avatar Jason Kuznicki in reply to Mahesh Paolini-Subramanya
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      I’m not looking for one original public meaning. I am trying to find, among the scope of original public meanings — and there were quite a few — the one that most accords with our current values.

      In cases where none of these meanings can work, we should amend, or, if invited by the text, we should supply our own values. There are instances of this, as with the Eighth Amendment, which is nearly impossible to read sensibly as anything other than an invitation to use current sensibilities to evaluate cruelty.Report

    • Avatar Koz in reply to Mahesh Paolini-Subramanya
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      “My only quibble (and its a fairly big one) is that things weren’t really as cut and dried back then as we like to make them out to be. When we talk about “original intent”, etc., we tend to think of the framers as a single voice, raised in harmony, chanting the majest of some Original Ideal.”

      The important thing to understand about this is that it doesn’t make any difference at all, for reasons that are pretty obvious at least in retrospect. The point of original intent isn’t that we have to do what the Framers wanted. Rather, the text is sovereign for as long as it’s in force, and if there is a legitimate dispute about the meaning of the text, we can use the intent of the Framers as a guide to interpret the text.

      To put it another way. We don’t have to follow what the Framers wanted in general, but only what the Framers wanted with particular words used in some context. Or, if the plain meaning of the text is clear enough, we don’t have to care about the intent of the Framers at all. That is an overlooked part of the whole equation, especially from some conservatives who like to cheerlead for original intent.

      A good percentange of the most egregious liberal activist jurisprudence can be invalidated by the plain meaning of the text, without having to deal with original intent at all.Report

      • Avatar E.C. Gach in reply to Koz
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        “Rather, the text is sovereign for as long as it’s in force, and if there is a legitimate dispute about the meaning of the text, we can use the intent of the Framers as a guide to interpret the text.”

        We “can”, but why “should” we?

        “We don’t have to follow what the Framers wanted in general, but only what the Framers wanted with particular words used in some context. Or, if the plain meaning of the text is clear enough, we don’t have to care about the intent of the Framers at all. ”

        In what ways would you say that what the Framers wanted, and what the meaning of the text was, are at all different things? If a message is communicated perfectly, without interference or misinterpretation, shouldn’t all that is left be the intent of the communicator?

        If the meaning of the text is “clear,” then by default the intent of the Framers and the meaning we glean would be the same thing. Unless its clear, but the opposite of what the founders intended, in which case, you are saying, that our interpretation in instances where the “clear” meaning is contrary to the intended meaning, would be just fine?Report

        • Avatar Koz in reply to E.C. Gach
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          “In what ways would you say that what the Framers wanted, and what the meaning of the text was, are at all different things? “

          Because accepting the primacy of the text focuses the scope of interpretation in right way. The Framers, individually and collectively, intended many things, in many ways. Even if somehow we could know what the Framers wanted, we wouldn’t necessarily know how they wanted it.

          Or to put it another way, we interpret the message, not necessarily the messenger.Report

          • Avatar E.C. Gach in reply to Koz
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            says:

            It seems like, based on what you just wrote, that we could interpret the message without any reference to the messengers at all.

            Or if you are saying we need to look at least somewhat what the Founders thought and did, and extrapolate from that what they would have meant by certain words, phrases, the inclusion/exclusion of various things, it seems like what they wanted would have bearing on how they would have intended the above things to be interpreted.Report

            • Avatar Koz in reply to E.C. Gach
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              “It seems like, based on what you just wrote, that we could interpret the message without any reference to the messengers at all.”

              Optimally we do. The plain meaning of this or that clause is often sufficient. There is no need to look any deeper into the Framers’ intent. Sometimes, this is not the case. For that, we should to the original intent, specifically as a means to interpret this or that clause, not as a way to backdoor our own preferred policies. Below, here is a succinct summary of the wrong way to do things,

              “Its interpretation today should be guided by the original public meaning of the text… and that meaning was precisely that the boundaries of individual liberty should be expanded.”

              The quote is from Jason btw, and I’m not saying that you agree with this approach, I’m just reproducing it for clarity’s sake. The point being is that after we look at the Framers’ intent, we throw up our hands and claim that the whole thing is hopelessly confusing, therefore we’ll just do what we want instead.

              Instead, when there is a legitimate problem of interpretation, just make the best effort to figure out what the right answer is and go with that. This way, the Framers or people in general can cut deals or make agreements in good faith.Report

  5. Avatar tom van dyke
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    says:

    Exc, Jason. What is permitted under the Constitution is not synonymous with what is demanded. This conflation is at the heart of the current crisis.Report

  6. Avatar E.C. Gach
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    “Second, I would say that while the Founders had some awful moral blind spots, they were also highly insightful about many, many things. We find them appalling about women and slaves nowadays by virtue of the moral reasoning that we inherited from them. Many of them, Jefferson included, knew that they were appalling, and that they would be so judged by us!”

    I’m not sure how much of my moral reasoning I should thank them for.

    To follow up Francis,

    “Its interpretation today should be guided by the original public meaning of the text.”

    I’m familiar with Originalism the method, but not the arguments made as to why that should be the way we interpret the text. Why would that be the most preferable way?

    “Should” it be that way for reasons of efficacy and expedience, some standard of correctness which demands the most “accurate” interpretation to use that method, or certain legal principles ingrained in common law and its application.

    For instance, if I approach any text, there are tons of theories on how to interpret it, how best to interpret it, how it can be “correctly” interpreted, etc. Many literary texts are interpreted based on historical context. It is quite interesting, fun, and insightful to do so.

    But what would you say makes a historical interpretation not only more accurate, but necessary? Why “should” it be?Report

  7. Avatar Mark Thompson
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    says:

    The problem is that the “original public meaning” on a lot of parts of the Constitution is unclear or is all over the place, as shown by the views of the anti Federalists and Hamilton, and surely some others, including those who voted for the Alien and Sedition Acts. While a narrow reading is reasonable and logical, so is a broad one.

    Additionally, it is not at all clear that the main body of the Constitution was intended to place strong limits on the government’s power. There is a reason why the anti-federalists were at least partially successful in getting the Bill of Rights.Report

    • Avatar Jason Kuznicki in reply to Mark Thompson
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      Sometimes, yes. But on the General Welfare clause, I can’t say I agree. The broad reading requires doing something that is not properly done to any legal text — it requires us to assume that much of it is a nullity. If another reading exists that doesn’t do this, we have to follow it. That’s how you read laws, and it’s not up for debate.

      Except, I guess, when there are certain policy objectives you really really really want in the short term.Report

      • Avatar Mark Thompson in reply to Jason Kuznicki
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        But it really doesn’t render anything else a nullity. Or if it does then you have to point to what it renders a nullity. But I also don’t think liberals would say that the general welfare clause itself grants government the power to do anything. And the argument for the individual mandate hinges not on the general welfare clause itself but on the general welfare clause and/or the interstate commerce clause in combination with the necessary and proper clause. I do not much like this interpretation, but it is far from an unreasonable interpretation. In fact it is basically Hamilton’s.Report

  8. Avatar Jaybird
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    To read the First Amendment… and then to look at, say, the Alien and Sedition Laws, and then to reach the conclusion that *OBVIOUSLY* the Government can censor people and therefore it should censor people like X, Y, and Zed seems to me to be a Devil’s Bargain.

    When the day comes that the government tells folks from one’s own side of the spectrum that they need to exercise a lot more prior restraint lest there be penalties, what can one possibly appeal to? Certainly not the First Amendment.

    And this is true for all of them. When one starts peeling away and pointing out that, obviously, the Amendments don’t mean *THAT*, one ought not be surprised to find oneself hoist upon one’s own petard. What will one appeal to? The Constitution? Some system of higher morality? God?

    I’ll bust this out from “A Man For All Seasons”, why not.

    William Roper: So, now you give the Devil the benefit of law!
    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
    William Roper: Yes, I’d cut down every law in England to do that!
    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!Report

  9. Avatar mark boggs
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    Your last paragraph nails it for me, Jason. Which is why I’m always so baffled by folks who want to gripe and moan about overreaching gubmint from commie-dem Kenyan Marxists while talking about freedom and apple pie, but have no qualms keeping two women from civil marriage.Report

  10. Avatar Michael Drew
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    @E.C. Gach – Quite. Entirely part from the trials of arriving at a satisfactory Originalist account of Constitutional meanings, the case for why Originalism should govern the current courts’ application of laws to present circumstances must be made, not assumed. This is not to say that case has not been made. But in this post, I believe Jason does tell us that, not show us why, “interpretation today should be guided by the original public meaning of the text.”

    Originalism has a clear immediate appeal, but it is most certainly one of various approaches not just to interpretation of law, but simply to the application of law to present reality that are possible. The case for it must be made.Report

  11. Avatar LarryM
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    Well, no more comments from me here. You guys are mostly reasonable, but after events in Arizona today I realize you’re mostly allied with the worst political movement since fascism and Stalinism. It’s time to pick sides, and I’ve picked mine. This travesty has radicalized me to an EXTREME degree.

    Let’s just hope for an appropriately severe reaction from Washington to a FAR greater threat to our nation than 9/11. Starting but not ending with 40,000 national guardsmen in Arizona, the declaration of martial law, and the removal of the current state government.Report

    • Avatar Michael Drew in reply to LarryM
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      I hope this is merely a hasty, ill-considered comment. I beg you to reconsider and not to steer your politics in this way. We can all oppose violence and still be libertarians, liberals, socialists, whatever we want. Let not this criminal decide our politics for us.Report

    • Avatar Bob in reply to LarryM
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      Second Amendment remedies?Report

    • Avatar Jaybird in reply to LarryM
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      Are you sure?
      I mean, maybe it’s an anti-anti-illegal immigration protester watering the tree of liberty instead of a teabagger engaging in domestic terrorism.Report

    • Avatar Rufus F. in reply to LarryM
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      While I understand how upsetting this is, I find it hard to believe that you really want martial law to be declared. Are you really radicalized to an extreme degree by this? Maybe it’s just me, but when things like this happen, the first thing I want is for everyone to chill the hell out. Because it’s political radicalism that makes sick people think they now have a legitimate outlet for their psychopathology. I totally agree that the pseudo-radical rhetoric (‘next time we’ll be armed’ etc.) is irresponsible, stupid, and dangerous. But the answer isn’t to ratchet it up. If anything, at times like this, I want to come together with people I don’t usually agree with in our mutual recognition of the tragedy and start talking about how we can, together, dial down the rhetoric and work for better solutions. Above all, the law of the jungle must not prevail.Report

    • Avatar Jaybird in reply to LarryM
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      Has LarryM come back yet?Report

      • Avatar Koz in reply to Jaybird
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        Apparently not yet. His comment is instructive. It would be interesting to know if the anger is the garden-variety liberal type or something stranger. Assuming the former, let’s summarize as best as we can:

        1. Most of us here Ordinary Gentlemen (presumably authors and commenters alike) are allied with the mainstream Right. In reality me and maybe Bob Cheeks are supporters of the mainstream Right and that’s pretty much it.
        2. And, we’re allied with the worst political movement since fascism and Stalinism. Great sense of perspective.
        3. The remedy. Martial law over Arizona plus a bunch of other nasty things.

        In the cold light of day none of this seems to be defensible. It’s a shame really if Larry stays away. It would be interesting to see if he can’t or won’t defend these things, or maybe he retracts them.Report

  12. Avatar Bo
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    The Constitution was an experiment in greater liberty — far from perfect by anyone’s lights today

    No, see, the Articles of Confederation were an experiment in greater liberty, and, when that didn’t work, the Constitution was an experiment in a more powerful government.Report

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