True Faith To Democracy

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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51 Responses

  1. Tom Van Dyke says:

    Ah, Burt, the whammy and double-whammy of Opposite Day: Okkil Trub is neither as good an arguer as Burt Likko, nor as honest.  [Perhaps because his heart isn’t in it.]

    First of all, Trub’s prose is too flaccid to be effective [when it’s not a bit purple], and so lacks the proper urgency and cogency at unelected justices unilaterally re-writing our nation’s social compact.

    Which is also a valid argument, and a stronger one than most posted here.  Also missing are quotes from a James Madison, who privileges the Ratifiers not the Framers in interpreting the text, which leaves the door open for the core originalist/textualist argument, “original public meaning,” “expected application,” and the like.

    Second, Okkil Trub makes a rather pallid caricature of Likko’s own position, which makes a devastating refutation of Likko impossible.  Trub needs to select Likko’s strongest argument and refute it to win, and I suspect Likko has much stronger arguments in his quiver that Trub addresses here.

    Although the arguments on the 5th were valid, the argument on equal rights for women via the 14th were not completely fair: the originalist/textualist can easily hold that the 14th’s guarantees of due process and equal protection do apply to women, albeit not to the point of erasing all distinctions between the genders.  Trub’s argument seems oblivious to this, and as such is rather ham-headed and unpersuasive.

    I haven’t even heard Likko’s side yet but I’ve already marked Trub down as the loser.



    • Burt Likko in reply to Tom Van Dyke says:

      Bear in mind that originalism is distinguished from textualism here. The 14th is a significant point of departure between the two philosophies; the textualist has little difficulty reaching application of the 14th to sex, while the originalist has two choices — one of which is a very difficult intellectual gymnastics routine.

      The other is what Mr. Trub at least attempted, following the example of arch-originalist Antonin Scalia:

      Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.

      As to the strength of Okkil Trub’s prose, well, that’s a function both of time and energy devoted to a project which was, frankly, very nearly skipped altogether.Report

      • Tom Van Dyke in reply to Burt Likko says:

        Scalia’s position is more nuanced.  For instance, unisex bathrooms are not required by the 14th.

        “I apply the limitations upon democracy that the American people have adopted. And as long as those are not infringed, the constitution hasn’t been violated. It’s not up to me to decide — you know — what ought the equal protection of the laws to mean. There’s a lot of things it could mean, it could mean that in all public buildings you need unisex toilets. Now, you know, does it mean that? No, it doesn’t. Why doesn’t it? Because nobody ever thought that’s what it meant.”

        And yes, Scalia is a textualist:

        Well, you know, try putting that in the text. If that was the deal, it should have been in there. How many people would have voted for it? It would have read — uh — the phrases within the constitution that have generalized meaning, due process of law, equal protection under the law and so forth, do not mean what they mean today, but rather, they will mean whatever an unelected committee of nine lawyers, known as the Supreme Court, thinks they ought to mean from time to time. Who in the world would vote for government by such an aristocracy? I can’t imagine.”

        But these “originalism” discussions usually go into defending Scalia’s every chapter and verse.  I doubt there’s a single American who agrees with him chapter and verse. [Certainly not Clarence Thomas!]

        So if Opposite Day means finding someone on the other side and harpooning his most vulnerable arguments, well, shit, what’s new about that?


        • Michael Drew in reply to Tom Van Dyke says:

          TVD, merely because he references the text here does not make Scalia a textualist like Burt. The crux of Tony’s pique in that passage is this:

          the phrases within the constitution that have generalized meaning, due process of law, equal protection under the law and so forth, do [would] not mean what they mean today, but rather, they will mean whatever an unelected committee of nine lawyers, known as the Supreme Court

          This is the essentially originalist objection – that the functional meaning of the text would change over time from what it was understood to mean by a critical constituency at the time of adoption.  Scalia’s point is not that the meaning is inherent in the text, but that we should not stray from whatever the contemporary understanding of that meaning was at the time of the adoption of the text into law.  This is indeed in contrast to a textualist approach, which sees the meaning as carried for all time in the text, so that interpreters may approach the text anew on each reading if they find it necessary (or rely on interpretations of interpreters placed in time between themselves and the adoption of the text).  As Burt says, this notion of the text, reprintable in any font or format, as the direct source for the effective meaning of the real current law, is the necessary step that allows for interpreters at later times to bring understandings of their own times, or even particular personal perspective into the act of interpreting legal language, and hence gives life to the doctrine of living constitutionalism.  If Justice Scalia wishes to claim to be a textualist, he should be careful what he wishes for.  His originalist commitments could be jeopardized.Report

          • Scalia is both something of a textualist and something of an originalist.  It’s child’s play to find opinions in which he’s emphasized textualism and then find ones in which he’s emphasized originalism.

            That’s why this debate rages about Scalia; he plays both cards.

            That’s not a knock on him. I’m pretty sure he sees textualism as complementary to originalism, and vice versa.  E.g., if you want to know what the original meaning was, you have to start with the text, and while you may not end your analysis solely with the text, you sure as hell can’t be reading into the text stuff that’s clearly not there.Report

            • Michael Drew in reply to James Hanley says:

              I don’t deny that he is in some sense or other a textualist.  He may be a textualist in his own narrow understanding of the label inasmuch as for him textualism is just the technical assertion that the words are the law not the intent of the lawgiver. And he may be a textualist in some more distinctive way as well. But if his view is that where there’s any ambiguity about the meaning of the text the only right way to resolve that ambiguity is to try to understand what a critical constituency at the time of the adoption of the law understood to be the legal meaning of the text (the text being the law), then I think to say that he is a textualist as well as an originalist is a statement that doesn’t have much or perhaps any practical meaning.  If, after all, the discussion is about what is the right way to interpret law, then if for Scalia determining original understood meaning is always the right way to understand the meaning of the text (which is the law), then in effect he is just an originalist and only incidentally a textualist.  (And if it isn’t always the right way, then when is it the right way, and why is it the right way those times?)  Again, this is not to deny that he is a textualist.  One could, I suppose, imagine an originalist who is not a textualist.  But it’s just much more descriptive and frankly accurate to call someone an originalist if they are in fact a strict originalist in their holdings about how to understand the meaning of a piece of law, since the only thing that textualists have in common is that they hold that the text of the law is the law, not the intent of the lawgiver, nor the policy preferences of the magistrate.

              But the distinction between textualism and originalism does hold meaning for Burt, and that’s precisely because Burt is not an originalist (again, an originalist doesn’t think there is a legitimate option for interpreting the meaning of a text [which is what the law actually is, hold textualists] other than doing one’s best to try to understand the originally understood meaning of the law of a critical constituency).  For Burt, we can find meaning in the text by simply looking at the text in the here and now, and potentially legitimately decide cases using that meaning, as long as we really think it is the meaning of the words.  The reason I say that calling himself a textualist could be problematic for Justice Scalia is that if all he says is that we must look to the text to find the meaning of the law, then he is not saying why Burt’s critique of his way of understanding the 14th Amendment with regard to gender is wrong.  To say why a textualist approach commands that understanding, he has to go back to an argument about what the original understanding of the provision was, and for that to convince Burt, he’ll have to say why that is a piece of information that must command Burt’s textualist interpretation.  Presumably he thinks that his decision in that case was commanded by the text, properly understood, which means he thinks that Burt should assent to it if he is a textualist.  If the reason that the text commands that view rather than Burt’s is that that is what is consistent with the original understanding of the amendment, then Scalia’s argument for his version of textualism becomes just an argument for his originalism.  Originalism is his textualism, but Burt’s textualism is not originalism.

              I’ve tried to include a lot of ifs here about to what extent Scalia is consistent about applying an originalist approach to textualism, because I certainly am not highly familiar with Justice Scalia’s jurisprudence.  It may be the case that there are cases where he endorses an approach to understanding the meaning of a piece of constitutional or statutory text that consciously in his mind is not consistent with his best understanding of what a critical constituency at the time of the adoption of the provision understood to be its meaning.  I’d be interested in reading one or two such.  But again, if this is the case, while it may show that Scalia is a textualist in some way that actually distinguishes the concept in practice in his jurisprudence from originalism (as opposed to originalism simply being the right way to do textualism, which amounts to the assertion of an equation of the two for the purpose of jurisprudence as opposed to for the purpose of merely maintaining analytical categories for the purpose of using them while analyzing jurisprudence), it then raises the question of what the jurisprudential force of his “originalist commitments” (as I called them) is, if in fact he is inclined to hold that there is any such force.  That’s why I said holding himself to be a textualist could jeopardize his originalist commitments – because if to be a textualist means one should be an originalist (and what does originalism hold if not that?), then to endorse textualism without maintaining that view, it seems to me could jeopardize the case that textualism can be dine right only via originalism.Report

              • Thanks, Michael Drew. It’s good to be got.Report

              • Michael Drew in reply to Burt Likko says:

                Glad we are on the same page, Burt.  I would suggest that it cuts both ways to some extent.  These days, ‘textualist’ really say much about one’s approach to interpretation any more, because it doesn’t distinguish it from many significant currently active schools of interpretation at all, unless I am mistaken, does it?  Not many people actually admit to looking past the text as the seat of the law as an actual part of their conscious methodological approach to interpretation that I am aware of.  Not to say what you should or shouldn’t do, but the way these terms of valorization seem to swallow up approaches to interpretation whole, through no fault of your own it may be that you need to find a more descriptive term to describe your particular approach to arriving at an interpretation of the meaning of text.  You don’t seem to be a plain meaning guy, at least not entirely.  In any case, I can see why some schools would object to an attempt to contrast their approach to textualism, as these days few will admit of not being broadly text-based.

                I don’t want to presume you re not aware of it, but there has been a fascinating discussion about originalism going on of late at Balkinization(.com).  As you know, Jack Balkin of Yale is an originalist who holds that originalism actually is consistent with the idea of an evolving (effective) Constitution (and much else besides).  There’s a new book out that is presumably a must-read (if you can get your hands on it without breaking the budget) for anyone interested in this discussion, whatever view one holds in it. IN any case, one of the blog entries actually took a position on originalism itself that is similar to the one I describe above about textualism – that it has attracted basically a quasi-consensus among people who think of these matters in explicit terms, whether in real substance or just by virtue of  a very general agreement that the meaning at the time of adoption is important in interpretation.  Needless to say, Balkin’s view, which he clearly holds very seriously and is now offering in what looks like something of a career-capping work, would be implicated in such an assessment, and he responds accordingly.  It’s a pretty fascinating discussion as blog series go.Report

              • Michael Drew in reply to Michael Drew says:

                …Er, ‘textualist’ doesn’t say much, (or as much) about one’s approach any more…Report

          • Mr. Drew, nothing I’ve written shows a misunderstanding of the “living” Constitutionalist position.  See Humpty Dumpty below.Report

  2. If I didn’t know how you really believed, I would never have known you didn’t write this with full conviction.  Bravo.Report

  3. Michael Drew says:

    Burt, this entry in Opposite Day at The League is well-done, and I enjoyed it.  Glad you took the time.Report

  4. KenB says:

    I’m confused by the terminology here — I’m not a legal scholar, but I don’t think that “original intent” and “originalism” are the same thing, nor is “originalism” opposed to “textualism”. AFAIK Scalia would consider himself both a “textualist”, because he believes that constitutional interpretation should be based on the text itself without reference to penumbras and emanations, and an “originalist”, because he believes that the meaning of the text should be based on how the framers and their contemporaries would have understood the language. “Original intent” , as I understand it, doesn’t refer to a strategy for interpreting the text but suggests that the intention of the legislature should trump the text if the two appear to be at odds — that’s not Scalia’s position.Report

    • Tom Van Dyke in reply to KenB says:

      KenB, being the Opposite on Burt’s Opposite Day post here, you’re in the zone, in my Opposite Opinion.  Or my actual opinion, and I don’t want to attempt a triple-whammy.

      My thought re Opposite Day was that the honest man is already aware of the other side’s best argument, and has a counterargument that trumps.  That’s why the honest man has come to Conclusion Y instead of Conclusion X in the first place.  Were I to do an Opposite Day post properly, I’d have to leave out the arguments that lead to Conclusion Y.

      As for the less-than-honest men, they never even state the other side’s case fairly, instead beating up on straw men and caricatures.  That’s the norm on the internet, and in most of these debates.

      ”Original intent” , as I understand it, doesn’t refer to a strategy for interpreting the text but suggests that the intention of the legislature should trump the text if the two appear to be at odds — that’s not Scalia’s position.

      Nicely done, sir.  I did a lot of googling today, and most top results misrepresented Scalia’s position.  As an amateur historian, I’ve learned to quote a man for himself.  I give Likko top props for quoting Scalia directly, albeit not deeply enough.

      Likko is an honest man here on Opposite Day and on every other day.  My remarks were never intended to disparage my friend Likko, only to restate my objection to Opposite Day in the first place.  We should always state the other guy’s position fairly, and fully—regardless of what day it is.




      • Mike in reply to Tom Van Dyke says:

        Wah wah wha.

        Likko, my compliments on a well written post.

        Tom Van Dick… let’s face it. Likko’s post here is so staggeringly close to the writings of “originalists” that if I didn’t know better, I’d think it was actually ghost-written by one of them. In a few spots, I wonder if he actually just went to their writings and paraphrased only slightly.

        It’s not his problem that the right-wing goon squad has never been able to adequately articulate a real justification for the “originalist” doctrine. Likko did the best he could to defend something indefensible with the words of those who actually believe in that load of horse droppings.

        Just for kicks, can we get you to knock up a quick brainless right-wing screed against “activist judges”, or do I need to wait for the Big Fat Druggie to come on the radio and turn on his three hours’ hate radio show for that?Report

        • Burt Likko in reply to Mike says:

          1. I wrote the whole thing myself, straight from my own head, based on my own familiarity with the subject.

          2. TVD’s critique was constructive, with respect to its discernable intent, content, and manner of receipt. I would not assign a similar label to your comment.Report

    • Burt Likko in reply to KenB says:

      There is, to my knowledge, no intellectually respectable school of legal philosophy that would suggest that either the words used within the text of a law itself, or the intent of the authors of that text, are irrelevant to the task of interpreting and applying the law. The question is one of degree and direction.

      E.g.: Scalia is right to point out that the Framers of the 14th were not considering issues of sex equality when they wrote or passed it. They were worried about other things, they were trying to solve other problems. No scholar can really deny that fact. The question is how do we use that fact? The textualist offers the modest proposition that whatever the intent of the Framers was, the words they used to make the law are the law. The originalist offers the equally modest proposition that the words they used to make the law symbolize an idea, and that idea is the law. Certainly intent is frequently expressed in text, so it is often a tricky exercise to tease the two apart.

      Other schools of thought offer different suggestions for what the law really is — perhaps it is, to the positivist, the enforceable will of the sovereign (however that sovereign is defined); or perhaps it is, to the natural lawyer, a necessarily imperfect aspiration of social norms to conform with moral ideals; or perhaps it is, to the legal realist, an offer of assistance to judges and juries of the future in the form of a guiderail to their decision-making in future particular cases; or perhaps it is, to the critical legal theorist, the mechanism by which elites maintain their grasp on power.

      In the vast majority of cases, nearly all of these different philosophical approaches to the law reach substantially similar results. The interesting cases are the ones in which different philosophies lead the jurist or the scholar to differing results. In such cases, the intellectual process necessary to resolve a particular case requires at least a minimal level of engagement with other schools of thought and in a case of importance, that level is far from minimal.

      Just as textual and originalist approaches necessarily acknowledge one another, so too must they (and other approaches) address issues of morality, acknowledge the existence and exercise of political power, and note the economic impact of a decision. This operates on axes of thought that often have nothing to do with left-right politics, which is why I groan at the oversimplification of someone like Antonin Scalia as a “conservative” Justice or someone like Elena Kagan as a “liberal” Justice. At the end of the day, this interplay between competing interests, competing perspectives, and competing modes of interpretation is what gives Constitutional law its richness, its complexity, and its ability to hold a mirror up to society and culture.Report

      • kenB in reply to Burt Likko says:

        Well, without diving into the details of what you’ve written here, it seems to me that you’re using an idiosyncratic definition of these terms.  Not that Wikipedia is necessarily a reliable authority, but check out this snippet from the page on textualism:

        Textualism is often associated with originalism, and is advocated by Supreme Court Justices such as Hugo Black and Antonin Scalia, who staked out his claim in his 1997 Tanner Lecture: “[it] is the law that governs, not the intent of the lawgiver.”

        I think of textualism in the context of opposition to Roe v Wade or Griswold v Connecticut, where constitutional rights were found that certainly don’t appear in the text.  I’m curious to know what you think of these decisions, given that you  (i.e. Burt, not Trub) self-identify as a textualist.

        I’d also suggest (wearing my “trained linguist” hat, in case credentials are important) that opposing “the law is the words” vs. “the law is the ideas” isn’t really helpful — words are nothing if not a mechanism for communicating ideas. The disagreement is over how best to interpret them.Report

        • Burt Likko in reply to kenB says:

          The results of both cases are correct, the methodology in each sub-optimal. In both cases, a liberty interest under the Fourteenth Amendment’s due process clause would have sufficed rather than proceeding under an unenumerated privacy right (since there is the Ninth Amendment, the idea of an unenumerated right does not bug me particularly).

          Roe‘s reasoning finding viability as the dividing line between individual interest in privacy and state interest in protecting life comes out of the blue and does not seem grounded upon any identifiable concept of law. I do not think exposition of a privacy right was necessary to reach that result — a due process liberty interest in control of one’s own body would have been sufficient to get htere.

          I would also not have relied upon privacy rights in Griswold. I would have found instead that the state possesses no legitimate interest in prohibiting an adult from purchasing contraception. Thus, I would have struck down the law as failing even a rational basis review, again relying on a liberty interest under the Due Process clause rather than an unenumerated right.

          That doesn’t mean I don’t consider privacy one of the unenumerated rights protected by the Ninth Amendment — it means that I think judicially recognizing it in either Roe or Griswold was unnecessary and therefore sub-optimal reasoning. Does this simply swap out a squishy concept of a “right to privacy” for a similarly-squishy “liberty interest”? Not as I see it; liberty is the freedom to act as one chooses without governmental interference, while privacy is the ability to not disclose certain things at the government’s request.Report

          • KenB in reply to Burt Likko says:

            Cool, thanks for the response.  These bring up some other questions, but I’ve no doubt quizzed you enough.  FWIW, the Griswold result appeals to me as a matter of policy, but over the years I’ve found myself becoming more and more sympathetic to the argument advanced by Trub that the judiciary should aim for predictability and stability, which interest is not helped by always reading constitutional or statutory language in the most modern context.Report

            • Tom Van Dyke in reply to KenB says:

              KenB:  The “originalist” also respects stare decisis, i.e., precedent.

              When the original decision was constitutionally flawed but became precedent for a body of legal interpretation, you narrow the decision’s effects, and try to set the larger philosophy of law back on the right constitutional path.

              Originalists are Burkean conservatives, afterall.  To obliterate a century of stare decisis in favor of the “proper” interpretation of the Constitution would be radicalism.

              The older the precedent, the more leeway you give it, esp if you can narrow its scope and stop the bleeding.

              That’s a better “realism,” all things considered, rather than substituting the ideological flavor-of-the-month for the last one, under guise of a “living Constitution” that will taste different every month.

              If you’ve experimented in the kitchen—as Brother Likko has—you know that we have an infinity of bad ideas and so few recipes worth holding on to.


              On a personal note, thx to kenB for advancing the discussion rather than disrupting it.

              To Likko, best regards as always and the Scalia-Strossen debate may be found here


              • KenB in reply to Tom Van Dyke says:

                The “originalist” also respects stare decisis, i.e., precedent

                Tell that to Clarence Thomas.  🙂


              • Tom Van Dyke in reply to KenB says:

                Oh, KenB, don’t ruin all this with a driveby on Justice Thomas.  You changed the subject.  I guess we’re finished here and it was nice while it lasted.  Thx.  These things have a sell-by date, then start rotting on the shelf.  As principled internet discussions go, we did pretty good.


                Over & out.Report

              • KenB in reply to Tom Van Dyke says:

                Drive-by?  Well, it was off-hand, but not meant as an insult.  Scalia’s the one who said that Thomas doesn’t believe in it.Report

              • Tom Van Dyke in reply to KenB says:

                OK, KenB, perhaps unfair.  But an illustration, or even that Scalia had said that, would not have been taken as a drive-by.

                But I should have given you benefit of the doubt.  You’ve been a principled participant in the discussions hereabouts, and drive-by has not been your style.

                Appy polly loggy, mate.  Rock on.Report

  5. Tom Van Dyke says:

    Burt, do I detect a Randy Barnett “presumption of liberty” undercurrent here?

    Regardless, “Not as I see it; liberty is the freedom to act as one chooses without governmental interference,” is only one definition of liberty and a new one, a “modern” one, and not what liberty meant atall to the Founding era.

    Neither do I think it’s tenable even in the MMC century, since it abolishes the concept of “morality,” something that was never done via constitutional amendment, only by judicial interpretation and “updating.”

    We redefine liberty—which to the Founding theory of law was not license, but subject to natural law and its practcial interpretation as “morality.”  But that means “liberty” is a hollow shell, a word to be filled with any meaning we give it: concepts are mutable by judicial fiat.

    Welcome to Wonderland.


    “I don’t know what you mean by ‘glory,’ ” Alice said.
    Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”
    “But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.
    “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
    “The question is,” said Alice, “whether you can make words mean so many different things.”
    “The question is,” said Humpty Dumpty, “which is to be master…that’s all.”Report

    • Mmm-MMM! I loves me some o’dat handsome devil Randy Barnett, yes I does!

      Nor should this surprise you about me; consider my previous musing about the extent of rights and powers:

      State powers end where individual rights begin.

      I think Prof. Barnett could get behind that notion without much persuasion.

      If one accepts originalism, then the concept of “liberty” as understood by the Framers is of ultimate importance — but if one relies upon the text, the meaning of the word liberty controls and yes, that meaning may prove malleable over time (to the discomfort of my friend Okkil Trub). I don’t suggest that what the Framers were thinking about was irrelevant. But they used the word “liberty,” and it is for us in the contemporary world (and not the Framers, who wise as they were, are dead) to understand and interpret what the word “liberty” means.Report

      • Burt, my studies of the Founding give me a firm opinion of their understanding of “liberty.”  This is where Randy Barnett’s analysis falls apart for me, and why I hit it here.

        Natural law was the grounding of rights as well as the limit of liberty.

        Now, I don’t insist that we’re bound to natural law in any fashion: we’re free to change our philosophy of law.  It’s just that judges are the wrong ones to do it, to say the Constitution now demands something that it didn’t for a century or two, under a new philosophy of law that didn’t exist at its ratification.


        In fact, according to Scalia, American jurisprudence rejected natural law [“that great brooding omnipresence in the sky”] in ErieRR v. Tomkins [1939].  From then on, it was to be not pursuit of cosmic justice, but precedent and constitutional interpretation.  IOW, that America had achieved enough critical mass of democratically-enacted  “positive law” and principle for judges to work with to properly do their jobs, which is not legislation.

        Or even “justice.”  And this is where the sentimentalists and moralists get outraged at Scalia, who would simply say that a court upholding a bad law is reason to legislate it out, not declare it void by judicial fiat.

        So this is why Scalia’s such a dick about what the law says [or the Constitution] and what it doesn’t. In his view, doing his job means permitting unaesthetic [or even outrageous!] outcomes, as long as the Constitution isn’t violated.

        In the debate I linked [with Nadine Stossel of the ACLU], she raises the usual objection via race and Plessy and Brown vs. Board.  If a faithful reading of the Constiution permits such outrages, the Constitution must be ignored!

        So here is what I think is Scalia’s trumping argument, that leads me to the aforementioned Conclusion Y:

        “Nadine, language can be capacious without implying that its meaning changes in the future. When they said ‘due process of law’ they meant those rights of Englishmen in 1791. And the reason they didn’t set them forth in detail is because it would have taken a casebook this fat! Of course they couldn’t list them all. So they said ‘due process of law’ which meant something different in France in 1791, or in Hawaii in 1791, but they knew what it meant in America — it meant, that process which was the right of Englishmen.

        There’s no necessity to say, ‘oh, and they invited the Supreme Court to give this thing new meaning’ — whatever new meaning this Supreme Court thinks is a good idea in the future. Someday, Nadine, you’re going to get a very conservative Supreme Court —

        26:57 Strossen: — I think that day has come! (laughter) —

        26:58 Scalia: And you’re going to regret what you’ve done.


        I repeat:

        Someday, Nadine, you’re going to get a very conservative Supreme Court —

        Strossen: — I think that day has come! (laughter) —

        Scalia: And you’re going to regret what you’ve done.


        • Jaybird in reply to Tom Van Dyke says:

          The problem is that in Gonzales v Raich, he was given the opportunity to be principled without punching a hippie or to uphold wickard and punch a hippie thereby.

          He chose the latter.Report

        • I can’t find the link to the Scalia-Strossen debate. The full quote from Holmes is:

          The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified; although some decisions with which I have disagreed seem to me to have forgotten the fact.

          Southern Pacific Railroad Company v. Jensen (1917) 244 U.S. 205, 222 (Holmes, J., dissenting).

          Justice Holmes also very famously wrote in his 1881 treatise, The Common Law:

          The life of the law has not been logic; it has been experience… The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

          Justice Holmes was a “legal realist,” a philosophy which, at minimum, rejects the concept of natural law as contrary to the real-life experience of the lawyers and judges who work with the law all day long.

          It is precisely this experience-driven mode of thought which I find driving me to look to text rather than intent; much of what we think of as “due process” today would have been very foreign to the Framers. Defense lawyers assigned to represent accused criminals at public expense? The most talented lawyer in the bunch, John Adams, would surely have scoffed, with his characteristic blend of pith and unconcealed contempt, at such a notion. I expect most of his colleagues would have joined him and a small contest of trading quips about the claim would have erupted.

          Gideon v. Wainwright ends with an affirmation of the conviction before any court in England in 1791. Probably in 1891, too. Yet I expect that not a one of us today would think that a person convicted of a serious crime and sentenced to a heavy punishment after being unrepresented at trial had truly received “due process.”Report

          • Yes, Burt: If I were to argue your side, I’d choose the exceptions where the rules make no sense, thus obliterating the rules.  I was thinking on just this on the ride home, how I would play your end on Opposite Day.

            And of course, race.  Dred Scott, Plessy, everything I could get my hands on. [I had one blowhard—a Barnett man, I think—bragging he’d get me on Loving, that originalism couldn’t get us to the desirable, “correct” outcome of the type that Stossel and you are willing to sacrifice principle for.  Hah!  The debate ended at my opening remarks.]

            I’ll call your own witness here in Scalia’s defense [since he’s the sub rosa defendant]: Oliver Wendell Holmes.

            “It is better for all the world, if instead of wanting to execute degenerate offspring for crime, or let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles is enough.”  

            Thank you, Justice Holmes.  The witness is excused. [The imbecile was sterilized.]

            Now, we don’t condemn OW Holmes for being a man of his time: we are all men of our times, and eugenics was the idea of its time.  Indeed, even in our own time, eugenics has not been falsified: if we can breed a better dog or horse and cull the weaklings, if man is just another animal—as science can argue—then eugenics is still quite rational and unfalsified.

            But it is this reification of reason, in the name of “realism,” that both natural law and “originalism” in its debt to it, stand in opposition, in opposition to the next bright idea, in opposition to obliterating the law in favor of desirable—seemingly more reasonable—outcomes.

            Screw the text and original understanding of the Constitution [and its amendments] when ratified, and screw natural law.  We, the moderns, the rational, the reasonable, have no use for either.  Principles, philosophies of law, stand in the way of progress, human progress. Realism.

            Scalia: And you’re going to regret what you’ve done.




            • Jaybird in reply to Tom Van Dyke says:

              Ironically, the imbecile in question was merely an inconvenient woman who was raped by the nephew of a powerful man.

              OWH Jr. (ptooey) wasn’t making the case for giving vasectomies to, I believe they were called, “morons” which would, at least, make everyone uncomfortable about which argument they have more sympathy for… but as it stands, the decision was made on behalf of someone who was already at the bottom of the slippery slope.

              OWH Jr. Ptooey.Report

            • I had one blowhard—a Barnett man, I think—bragging he’d get me on Loving, that originalism couldn’t get us to the desirable, “correct” outcome of the type that Stossel and you are willing to sacrifice principle for. Hah! The debate ended at my opening remarks.

              I’ve no doubt. After all, original intent and natural law can be interpreted, researched, and developed teleologically just as well as can the common law or the natural law. A natural lawyer must dress up his teleology in the subjective cloak of morality (what you consider immoral I may just as justifiably consider morally justifiable); an originalist must ornament his teleology with history.

              As for Justice Holmes (whom you mentioned first by quoting him). I’m not citing to his opinions, but rather the notion that the law and morality are different things, a notion to which he is inextricably intertwined. Whatever excerable opinions Holmes authored, I think he got that concept right. There can be such a thing as an immoral law. I know very well that many of the Framers disagreed with that notion, or at least would have had it been presented to them in such terms.

              Now, if you say the Framers had the better end of that discussion, then you must consider the noxious decisions of Justice Holmes to which you point. The ruling in Buck v. Bell is indeed morally shocking. Yet the decision has never been overruled. Was the Buck opinion lawless? A natural law approach seems to compel such a conclusion — but if we can view law and morality as operating on different axes, we can see that it is good law that will never be implemented again due to a change in political and cultural preference. Five Justices of the Supreme Court did not have the moral qualms we do about this decision — thus we see that morality is supple, given the passage of historical time. We can give Justice Holmes and his colleagues a pass because they were, after all, men of their time. Or, we can say that there is something objective and timeless about morality, in which case we must anger Bob Cheeks and morally condemn Confederate slaveholders of the 1850’s for violating similarly-powerful but contemporary notions of morality.

              “Ah, notions of morality may change over time, Burt, but the Constitution and the original intent of its authors do not.” Well, then, did the Constitution forbid sterlization of the mentally retarded? As interpreted through the lens of original intent, the answer is “no.” If you say I’m wrong, then which part of the Constitution gets you to that “desirable” result — the Due Process clause, perhaps? What’s your argument that the Framers of the Due Process clause ever even considered this issue or anything remotely resembling it? Isn’t it more intellectually honest to suggest that they were concerned about the rights of litigants and accused criminals? Or are you applying the 2011 notion of what “due process” means instead of the 1868 notion of it? If so, congratulations, you’re a textualist like me.

              OTOH, should you find yourself engaged in the exercise of searching for historical understandings of this or that Constitutional clause in order to provide logical support for a “desirable” result (State, thou shalt not sterilize; State, thou shalt not outlaw miscegenation), then aren’t you equally guilty of legal teleology as I stand with respect to Loving v. Virginia? As a textualist, at least, I need make no bones about using contemporary mores and contemporary language to approach the problems presented by contemporary disputes. I need not comb and cherry-pick the historical record upon which to found my result nor need I expound upon an elaborate cultural understanding of particular words or phrases; I need not construct an elaborate moral justification.

              What I need to do is point to the unchanging language of the Constitution and say, “These words compel this result in this case, and here’s why.” With respect to Loving, I can point to the Equal Protection clause; with respect to Buck, I can point to the Due Process clause, and in both cases I can do so easily and with substantial intellectual honesty rather than having to reverse-engineer my reasoning to get the result I prefer.Report

              • Jaybird in reply to Burt Likko says:

                OWH Jr. (ptooey) has his thumb on the scales, though.

                He argued that, hey, we can sterilize the morons because we can do stuff like institute a draft. (“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence.”)

                What happened when a guy got out there and said, “hey, you know what? A draft is a violation of the 13th Amendment!”?

                OWH Jr. argued that the guy making this argument could be jailed without it being a violation of his First Amendment Rights. Why? Because questioning the Draft is like “shouting fire in a crowded theater”. (Schenck v. United States.)

                Imagine the works you could create if your justification for anything is because it’s like X, and you have demonstrated a willingness to imprision people for questioning X.Report

              • Burt Likko in reply to Jaybird says:

                Horse = dead. Jaybird = still attacking; not glue yet.

                Your options in light of morally shocking law:

                1. Conclude that law and morality are different things and what we’ve got here is an immoral law; or

                2. Conclude that the court (or legislature) issuing morally deficient laws is acting lawlessly; or

                3. Search for an error in the immoral law to invalidate it, in which case you must either:

                a. Say the error was there all along; or

                b. Say that the error was something you have recently identified.

                If you’re tackling Justice Holmes, you’ve got a target-rich environment but not many options other than these. Don’t forget that Holmes’ position in these cases commanded the votes of a majority of his colleagues and, presumably, a significant chunk of society at large. He was far from alone in his opinions when he issued them. (Although few people would agree with them today, since notions of correct morality are malleable over the passage of historical time.)Report

              • Jaybird in reply to Burt Likko says:

                Let’s say we have something like a Constitution. Let’s say that the Constitution says something like “people should be allowed to engage in speech without being jailed for the content of their speech”.

                This Constitution, theoretically, supersedes law in this hypothetical.

                Now, let’s have a handful of politicians say “we should limit speech that would be harmful to people in power.”

                Let’s have this law get voted on, pass, get to the executive who signs it, get challenged, then make it to the Supreme Court.

                Is pointing out that most of the people in power agree with this law justification for the jurists finding in favor of the law being Constitutional?

                In theory, I mean. God knows we can’t judge people from a different time. It’s another culture, after all.Report

              • Burt Likko in reply to Jaybird says:

                Obviously not. But is the law moral, and should it have to be?Report

              • Jaybird in reply to Jaybird says:

                The problem comes when “we” argue for policy X based on the Constitution because the Constitution will get “us” where “we” want to go and policy Y based on Contemporary Morality because Contemporary Morality will get “us” where “we” want to go.

                It seems that the best way to guess whether “we” will be using the Constitution or Contemporary Morality is whether it will give the government more jurisdiction than it had before.

                Throwing people in jail for criticizing the government? Which way did “we” go?

                Throwing people in an institution and removing their reproductive organs? Which way did “we” go?

                When given the choice between saying “the individual should be in charge of this one” and saying “no, the government has jurisdiction here”, the latter is the way to bet (issues involving sex provide the only counter-examples that come to mind).Report

              • Jaybird in reply to Jaybird says:

                I mean, if we want to agree that the law and morality do not necessarily have any relationship then we need to hammer out what the law *DOES* have a relationship to and try to maintain that.

                If we want to agree that the law and morality do, in fact, have a relationship then we need to hammer out what that morality is and then try to maintain that.

                If we do not know which rules we will be using today, it certainly seems like those in power will be making the same joke that the old man at a poker game I used to frequent always made. “The name of this game is ‘I Win’.”Report

              • Patrick Cahalan in reply to Jaybird says:

                I mean, if we want to agree that the law and morality do not necessarily have any relationship then we need to hammer out what the law *DOES* have a relationship to and try to maintain that.

                If we want to agree that the law and morality do, in fact, have a relationship then we need to hammer out what that morality is and then try to maintain that.

                If we do not know which rules we will be using today, it certainly seems like those in power will be making the same joke that the old man at a poker game I used to frequent always made. “The name of this game is ‘I Win’.”

                Congrats, you’re now officially in on the joke.

                The problem, of course, is that neither the framework of morality nor the framework of the law can map to all cases.  We don’t know which rules we will be using today; if we arbitrarily choose one and stand by it for all time, we wind up later on with some brilliant dude mentioning that the square root of two is irrational and our only choice is to throw the poor schmuck overboard.

                We certainly won’t be able to change our set of rules.Report

              • Tom Van Dyke in reply to Jaybird says:

                Of course we can, PatC.  Scalia replies: “In the last 40 years … we’ve become fond of the phrase that we have a living document. But if something is wrong, then change the law or change the Constitution, but don’t re-interpret the Constitution.”

                Of course our consensus morality changes over time, “evolves.”  The place to reflect that is through the democratic process, not in continuous revision of what the Constitution means.

                It’s rather a simple point.Report

              • Patrick Cahalan in reply to Jaybird says:

                Let’s just say that Scalia has a greater faith in our legislative process than I do.  Which is certainly his right; he definitely has a point.

                Put another way: if everyone in Congress viewed their job the way Scalia views their job, things would probably work a lot mo’ bettah.

                Unfortunately, I don’t see this happening any time before the heat death of the universe.  It’s the pessimist in me.Report

              • Stillwater in reply to Jaybird says:

                Of course our consensus morality changes over time, “evolves.”  The place to reflect that is through the democratic process, not in continuous revision of what the Constitution means.

                It’s rather a simple point.

                And a good point. On the assumption that original intent can be determined (and lets just say it can be), then why isn’t the constitution amended with each new inclusion of nuanced reinterpretation? I think one reason is that the principles which justify certain constitutional provisions can be clearly identified (since were assuming clarity of original intent), and those principles can then be justifiably applied to new contexts without amending the constitution.

                The expansion of the legitimate powers of government would then sorta logically follow. In principle by principle.Report

              • wardsmith in reply to Jaybird says:

                Let’s not forget that the founding fathers had had it up to here with tyrants abusing “law” for their own ends and were trying to build a tensegrity spehere of countervailing forces to keep the tyrants from taking over (because tyrants will ALWAYS take over, given enough time and a system they can game).

                The foolishness in our country is believing we have a government of THEM when supposedly we are a government of US. Lawyers love precedent rulings because they can just point back to the precedent that backs their case and say, “see, already decided in my favor”. The only argument remaining is whether they can fit that square peg of a case into the round hole they are currently facing. Napoleonic law is more intelligent but faces the tyrant rub itself (tyrant judges).Report

              • Burt, Scalia [and I, infra] stipulate that “natural law” is translated for practical purposes to a “consensus morality,” and further, that our mileage will vary.  That’s his core point, that to suspend the law itself in the interests of what a judge subjectively rules as “justice” is gonna gave unintended consequences for the rule of law itself.

                “[I]n the bad old days, that is to say, before Erie RR v. Tompkins [304 US 64, 78 (1938)], the courts believed that there was a single common law, it was up there in the stratosphere. Now, the state courts of California said it meant one thing, the state courts of New York said it meant something else, and the Federal Courts might say it meant a third thing. But one of them was wrong! Because there really is a common law, and it’s our job to figure out what it is. So in those days, any common-law decision of one state would readily cite common-law decisions of other states, because all the judges were engaged in the enterprise of figuring out the meaning of what Holmes called “the brooding omnipresence in the sky” of the common law. Well, I think we’ve replaced that with the law of human rights. Which is a moral law, and surely there must be a right and a wrong answer to these moral questions — whether there’s a right to an abortion, whether there’s a right to homosexual conduct, what constitututes cruel and unusual punishment, and so on —surely there is a right and wrong moral answer. And I believe there is, but the only thing is, I’m not sure what that right answer is. Or at least, I am for myself, but I’m not sure it’s the same as what you think. And the notion that all the judges in the world can contemplate this brooding omnipresence of moral law, cite one another’s opinions, and that somehow, they are qualified by their appointment to decide these very difficult moral questions . . . It’s quite surprising to me, but I am sure that this is where we are.”

                Boldface mine.  His overarching point is that once judges substitute their moral judgement [be it via natural law or any other rubric] for the constitutional or legislative process, someday you’re going to get a court that offends your own moral sense, and you’ll regret what you’ve done.

                [I had to pull the original essay off the Wayback Machine, at no small trouble.  I’m going to park the Wayback link here.  Of one thing, I’m sure: few of Scalia’s critics get his point.  Clarence Thomas believes in natural law; Scalia believes in the law as written.]Report

              • Patrick Cahalan in reply to Tom Van Dyke says:

                Generally, I’d rather read Scalia than Thomas.

                Thomas makes my teeth ache.  Scalia also has the benefit of being funny.Report

              • I’d challenge you to read more Thomas, then; in particular, his dissents. Where Scalia uses a rhetorical rapier, Thomas applies an intellectual mace — but the man is quite smart and he raises good challenges to the reasoning of his Brother and Sister Justices. The distastefulness of his conclusions is all the more reason to confront them.Report

              • I’m not 100% sure whether this is a Holmes-like rejection of the notion of natural law, or simply a recognition that the intellectual model of studying the common law as a vehicle to reveal the natural law has been rejected as a methodology. On the one hand, Scalia pines for a way to objectively reconcile the positive law with the dictates of morality; on the other hand, he forcefully admits that the dictates of morality are murky at best and subjective at worst.

                I thought you were an adherent to natural law, though, and you have forcefully argued (and more than proven) here and at American Creation that the Framers were dedicated to the concept of natural law. This implies that you contend faithful interpretation of the Constitution requires at least addressing the natural law perspective. Have I misunderstood this?

                In any event, I’m not convinced that substituting modern understanding of phrases like “due process” in the place of the consensus of that phrase’s meaning in historical time is necessarily the same thing as inserting one’s own moral judgments or policy preferences into the law. That could happen, but I doubt that any philosophy or interpretive approach exists which can immunize a human judge from such a seduction.Report

              • Tom Van Dyke in reply to Burt Likko says:

                Natural law some other day, Burt.  ;-P Explicating Scalia for now, and I’m hoping folks found it helpful—at least to know what he really argues and not the mischaracterizations of it.

                In the debate with Strossen


                Scalia acknowledges that “living” Constitutionalism will give you what you want in the tough cases that [as I predicted, heh heh] you’d argue:

                “I will stipulate that if you have an aristocratic supreme court, who changes the constitution whenever the Supreme Court thinks it’s a good idea, you’ll get some good stuff! I mean, a king would give you some good stuff [that] — you know — the untidy process of democracy will not produce. But that doesn’t prove it’s a good system, just because now and then it gives you good results.”

                Because you’ll get your share of bad ones too if you abandon the philosophy of law for expediency.

                Now then, to yr other question about “evolving” meanings. Originalism is a Burkean conservatism, not a Phariseeism that is concerned only with the letter, and not the spirit, of the laws.  It has great respect for precedent, and even more for custom & practice, which as you know informs the interpretation of the law.

                In 2011, just as bad as re-defining words in the Constitution by 21st century standards is to swoop in and say, no, no, precedent and custom & practice have been wrong in all these years following 1787: THIS is what the Founders really meant!

                Custom & practice, esp in the decades following the ratification of the Constitution or its amendments, gives weight to any arguments for “original public meaning” of a word or concept, although this is not to say that just because of the wrongly-decided Plessy in 1896, “separate but equal” was ever a faithful interpretation of the original public meaning of “equal protection of the laws.”

                In fact, in Brown vs. Board, many of the arguments were not of the abstract and aesthetic variety, but of practical ones, that the “separate” schools and accommodations were substandard and therefore sub-equal.

                [In our 21st century sensibility, the argument would never fly, but I wonder: what if the buses and movie theaters were segregated blacks on one side and whites on the other, instead of back-of-the-bus or up in the balcony?]

                But I digress.  What I would say to your objection is that if our understanding—and custom & practice—of “due process” has evolved organically over a period of years, we need not pitch it for a [radical!] originalist interpretation.  What Scalia objects to is the same dynamic on the other side, that after decades and centuries of one understanding, a “modern” one is substituted by unelected justices, by the standards of Harvard and Yale at that, not the standards of the American people as a moral consensus.

                You want to ban capital punishment, fine.  Pass a law, that’s all there is to it.  The Constitution doesn’t demand the death penalty, it only permits it.  So don’t tell me that what it permitted in 1787 it now bans in 2011.  That is the death of constitutionalism itself.

                As for natural law, I’ll leave it at this: as a philosophy, I’m in the zone.  Whether we must interpret the Constitution by it, I don’t know.  But recent judicial trends have begun to ban it as less than “rational basis” for a law.  This I object to strongly: natural law isn’t the Bible, which admittedly gets its authority only from faith, not reason.  We never voted on banning natural law or declaring it “irrational” either.  The courts are doing that, unilaterally. Tyrannically.





      • Stillwater in reply to Burt Likko says:

        Burt, I just re-read that post on the mistake of thinking that states (or governments generally) have rights rather than merely powers. Is it really this clear? I mean, I get the desirability of the view, but is it accurate? On one side of it, a collection of interests that gets subsumed under a legal fiction (the corporation) has been determined by the court to have rights. Of course, this isn’t necessarily inconsistent with your claim that state power end’s where individual rights begin, but it mixes up the issue to some extent. If flesh and blood individuals have the right to collectively vest their interests in a ‘person’, or an ‘individual’, then certain types of collectives actually have rights.

        By analogy, a state could be understood as nothing more than a legal fiction in which flesh and blood individuals vest their interests. If so, then why don’t states have rights strictly analogously to corporations have rights? But if states do have rights (the right to redress, the right to be free from X, the right to pursue their own self-interest, etc), who would those rights be against? On the face of it, they would have rights claims against other states and the federal government.

        So, on this view, since the rights accorded states are rights against federal government, why doesn’t the imposition of federal law on states constitute a violation of states rights? That is, why doesn’t federal power end where individual state’s right’s begin?Report

        • Burt Likko in reply to Stillwater says:

          That post is my own theory. I don’t claim that it’s unique nor do I claim that it is the only viable theory. It is a lens through which I view Constitutional law and I have got significant mileage out of it.

          The first part of your comment concerns the possibility that a corporation, being an amalgamation of the interests of individuals, might accede to the rights of those individuals as against the state. Yes, that is certainly a possibility and in some cases it is a reality. There are material differences between individuals and corporations as well, and this is a rich vein of policy, ethics, and concepts to tap. More than I can take on here; suffice to say that I think sometimes corporations ought to be treated like individual people and sometimes I think the government appropriately exerts a firmer regulatory hand over their conduct. People seem to care about the Citizens United case in that respect, and I never got, and still am not, particularly excited about that case.

          The rest of your comment concerns federalism — can a state have a “right” as against the Federal government? I say, no. A state may claim that it has a particular power and the Federal government lacks it, which is a similar sort of claim and might look even more similar were the only actors on the stage the two levels of government. The question is which of the two may exercise power and if one of them may not, then the actor with power may act within its discretion. But in my taxonomy, how either the state or federal government exercises its discretion within the defined scope of its power is subject to the ultimate control of the voters. That applies to everything the government does. This is potentially a sanction, and therefore as I define the term “right,” we aren’t talking about a right.Report