Please, For The Love Of God, Stop

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Sam Wilkinson

According to a faithful reader, I'm Ordinary Times's "least thoughtful writer." So I've got that going for me, which is nice.

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  1. Avatar Burt Likko
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    says:

    Scalia is as likely as the next judge to make up a rule out of whole cloth that it turns out he thinks is the right decision. I called him on that nearly three years ago: it’s not that his 14-day break-in-custody rule is necessarily a bad rule (although I have some doubts, particularly when the defendant is, shall we say, “unsophisticated”), it’s just that it’s not fairly traceable to the purportedly discernible original intent of the Framers of the Fifth Amendment.Report

    • Avatar Sam Wilkinson in reply to Burt Likko
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      says:

      Burt – this article appeared as a Tweet of yours for some reason. You’ll probably want to delete that.Report

    • Avatar Brandon Berg in reply to Burt Likko
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      says:

      The Constitution and federal legislation leave room for judicial discretion, even under the doctrine of originalism. They can’t explicitly spell out how to handle every situation that might arise, so judges have discretion when details need to be filled in. The details of the Miranda rights, which are themselves not described explicitly in the Constitution, are one such area.

      If you want to call out Scalia for hypocrisy, I’m pretty sure I’ve read about some cases in which he ruled in ways that were contrary to rules explicitly spelled out in the Constitution, though I can’t remember them at the moment. Shatzer isn’t one of them, though.Report

      • Avatar Brandon Berg in reply to Brandon Berg
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        says:

        Oh. Raich, obviously.Report

        • Avatar Burt Likko in reply to Brandon Berg
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          says:

          Yeah, but Raich is low-hanging fruit.

          I don’t think Shatzer is contrary to the Constitution. I think it’s supplemental to the Constitution. It breathes life into the Fifth Amendment.

          And thus I offer it as proof that to the Justice Scalia who actually renders opinions on it, the Constitution is not dead, dead, dead.Report

          • Avatar BlaiseP in reply to Burt Likko
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            says:

            Scalia’s dissent in Casey

            The Court’s reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the “central holding.” It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version. I wonder whether, as applied to Marbury v. Madison, 1 Cranch 137 (1803), for example, the new version of stare decisis would be satisfied if we allowed courts to review the constitutionality of only those statutes that (like the one in Marbury) pertain to the jurisdiction of the courts.

            I am certainly not in a good position to dispute that the Court has saved the “central holding” of Roe, since, to do that effectively, I would have to know what the Court has saved, which in turn would require me to understand (as I do not) what the “undue burden” test means.Report

          • Avatar Brandon Berg in reply to Burt Likko
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            says:

            Eh. Semantics. When Scalia says the Constitution is “dead, dead, dead,” that’s a reaction to advocates of living constitutionalism, who say that case law should effectively be able to change the Consitution, rather than merely supplementing the incomplete parts. It has to be understood in that context.Report

            • Avatar Stillwater in reply to Brandon Berg
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              says:

              So, you’re conceding that Scalia is offering a political opinion and not a legal one?Report

              • Avatar Jaybird in reply to Stillwater
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                says:

                Is there a difference?Report

              • Avatar Stillwater in reply to Jaybird
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                says:

                By your lights there apparently is. You wrote: As a fan of the whole “negative rights” thing that it seems that the Fathers set up. In that sentence is a clear division between a) a legal construct that you believe exists, and b) your (political) endorsement of that construct.Report

              • Avatar Jaybird in reply to Stillwater
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                says:

                I would say that the main difference between “legal” and “political” is that “legal” is vaguely formalized but that doesn’t *PREVENT* anything political from being done. It just makes it yell “interstate commerce” first.

                By your lights, is there a difference between legal and political?

                I mean, if we moved to having a Muslim majority in this country, I could *EASILY* see “necessary and proper” turning into something else entirely… and, given precedent, I don’t see the argument that it shouldn’t. (I mean, I know why *I* would argue that it shouldn’t, but I’m crazy.)Report

              • Avatar Michael Drew in reply to Jaybird
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                says:

                This is why I’ve found the concentration by limited-government folks on constitutional protections to be a bit curious (though of course understandable). Say the constitution did once offer all these legal protection, and still does, and their protections have been vitiated. Is there a reason you’d want to put your energy into re-establishing them when they’ve prove to not be robust to politics? Is the thought that a legal restoration could change the politics? Couldn’t it also invite dreaded BACKLASH and backfire?

                This is a straight-up honest curiosity about strategic decision. I completely get the basic feeling of having had protections and having them been taken away and wanting to act directly on that feeling.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                I’ll repeat the question I always end up asking: is there *ANY* area of your life that should not be subject to government oversight?

                “You know what? You don’t have jurisdiction *HERE*.”

                The answers usually have to do with adults having sex.Report

              • Avatar Michael Drew in reply to Jaybird
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                says:

                I don’t know if that is meant to answer me.

                It’s not that I don’t understand the appeal of having the government defined in a way that *will* be enforced so that it does not have jurisdiction you don’t want it to have.

                The question is simply about the calculations that go into deciding that seeking that is worth it, in a situation where politics might inevitably trump constitutionalism (which I’m not saying exists, but might – any strategic actor has to reckon with the possibility), political energy is limited, and the efficacy toward avoiding having to deal with such intrusion of a unit of energy put, through politics into keeping the government from actually acting on that jurisdiction might be greater than that of a unit of energy put into trying to restore the rules that keep it definitionally from doing so as a matter of jurisdiction back to a status that actually effects that outcome.

                I’m just asking about that calculations that go into figuring out all of those relations, and how to act as a result, that’s all.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                So the main thing holding the Authorities back from actually taking those parts of my life over is inefficiency, rather than lack of jurisdiction?Report

              • Avatar Michael Drew in reply to Jaybird
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                says:

                How do you hear me as making an argument?Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                It’s not that I see an argument as much as emanations from penumbras.Report

              • Avatar Michael Drew in reply to Jaybird
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                says:

                Okay. I asked you in another recent exchange to please be direct with me in that exchange. I’m going to ask you now to just please always be direct with me. Maybe you’ll consider it.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                Well, how’s this: I believe that a culture that argues, loudly, for limited jurisdiction on the part of its government is more likely to have limited jurisdiction on the part of its government than a culture that hems and haws and says that it perfectly understands how someone might reasonably conclude that there are areas where the government shouldn’t have jurisdiction, but given many of the facts on the ground regarding the amount of potential harm that might be caused without legislation, it’s not only necessary but proper for the government to be watching over these so-called private areas.

                The difference is that, for example, I believe that the law from Lawrence v. Texas was, in fact, an unconstitutional law above and beyond its distinctions regarding the gender of the two actors because the government ought not have jurisdiction there, while the opposing argument goes something to the effect of saying that of course the government has jurisdiction there, it just ought to show restraint because this particular act should be allowed.Report

              • Avatar Michael Drew in reply to Jaybird
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                says:

                …And please do feel free to read comments I post in response to your comments as simply thoughts I’d like the community to consider. They don’t imply a request for response from you. You’re completely free to do as you wish in terms of giving a response or not. The questions I asked just now were really meant as general outward-bound ruminations, not as questions to you in particular (and there’s no way for you to have known this, that’s why I’m letting everyone know). That’ll be my mode of communicating with you going foward unless you say you’d like it not to be; it seems it’s been your preferred mode of interacting with me for a long time. You don’t seem particularly happy when we’re actually directly relating to each other. If you’d prefer we not interact at all any more, please do let me know that. I am happy to refrain from responding to anything you write. But frequently you do write things to which I feel I have an insightful thought or two to offer, that’s why still say anything.

                Let me know.Report

              • Avatar Michael Drew in reply to Jaybird
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                says:

                Well, an opposing argument says that. But the distinct conclusion and resulting strategy I was ruminating on for people wanting to effect this non-intrusion, would be that the perhaps the jurisdictional issue is baked in the cake, but the substantive issue is more malleable. I’m not making that argument; I’m just interested in the calculations people make around what’s the case wrt to that question and thus how to proceed.Report

              • Avatar Michael Drew in reply to Jaybird
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                says:

                Another possibility is that they’re just basically on the same track.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                “You’re completely free to do as you wish in terms of giving a response or not.”

                Is *THIS* an area where we agree the government shouldn’t have jurisdiction?Report

              • Avatar Stillwater in reply to Jaybird
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                says:

                By your lights, is there a difference between legal and political?

                Sure. They’re distinct concepts.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                As concepts, sure. In practice?Report

              • Avatar Stillwater in reply to Jaybird
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                says:

                I dunno. It’s an interesting question. My first thought is that JoeSixPack does keep the two things distinct. Arguments are framed in terms of whether some policy or principle ought to be in effect (imposed, repealed, limited, etc), where the normative part of their belief derives from some other non-legal set of considerations that is supposed to inform legal decisions. To the extent I agree with you about the apparent collapse of distinctions here, it’s because JoeSixPack’s reasoning isn’t well informed or well considered.

                For someone like Scalia, tho, I think the two things are very clearly held as distinct concepts and that’s why it’s possible for a justice to make a decision he doesn’t like. It may conflict with either his politics or his legal theory.Report

              • Avatar Stillwater in reply to Jaybird
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                says:

                On the other hand, when you say “is there a difference?” wrt Scalia specifically, you might be right: as a SCJ he’s in a very unique position where his politics collapses into his legal theory. They become one and the same. At least insofar as we’re considering only Scalia as Justice.Report

              • Avatar Stillwater in reply to Jaybird
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                says:

                Those last two comments seem contradictory yet I think they’re both correct. Maybe it’s that viewing Scalia purely in terms of the formal role he plays as SCJ is different than viewing Scalia as a person who imperfectly plays a formal role.Report

              • Avatar Brandon Berg in reply to Jaybird
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                Is there a reason you’d want to put your energy into re-establishing them when they’ve prove to not be robust to politics?

                Because really, what else is there? When it comes to economics, libertarianism is very much about fighting the decay of freedom as long as possible. If we can hold back the regimentation of the economy a bit longer, it’s a victory of sorts, and possibly the best we can hope for.Report

              • Avatar Michael Drew in reply to Jaybird
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                says:

                Brandon,

                There’s embracing politics. Which I’m not suggesting would ever be your #1 preferred option. I’m just curious as to the extent to which it’s considered possible that that’s a more efficacious avenue through which to effect you policy aims than is the constitutionalism approach that hasn’t gotten it done. Just curious if that’s thought about, that’s all.Report

              • Avatar Michael Drew in reply to Jaybird
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                says:

                JB-

                I’m not engaging the question of what I think should be in the government’s jurisdiction here. In another place I might, but I’m asking other questions right now. I completely respect you desire to loudly argue the jurisdictional question, but it doesn’t make your mode of orthogonal responses to my legitimate questions any less impolite.

                You have FP posting privileges. You can argue as loudly as you want about restoring constitutional limits any time you want. If you won’t engage people sort of the terms on which they ask questions and just insist of your terms, that just makes you a boor.Report

              • Avatar Brandon Berg in reply to Jaybird
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                says:

                Michael:
                Politics hasn’t gotten it done, either. It’s not as though libertarians are working exclusively on one front. We try to obstruct or roll back bad legislation by whatever means possible—that includes working on both lawmakers and the courts.Report

              • Avatar Michael Drew in reply to Jaybird
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                says:

                Brandon –

                No, politics definitely offers no guarantees. I’m really just interested in how the efficacy of each of these avenues is perceived, and the resulting resource allocation decisions. By advocacy groups of all kinds.Report

              • Avatar Jaybird in reply to Jaybird
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                says:

                The problem is that jurisdiction is one of the prior questions here.

                It’s like you’re waving away the question of whether we should be able to tell, oh, Canada what to do and moving ahead to “assuming that we can tell Canada what to do, let’s answer these questions here…”

                How’s this? Let’s not assume that we can tell Canada what to do.

                And you’re pointing out that it’s not polite to hammer on that point.

                Perhaps it’s not. From my point of view, it’s *LESS* polite to exercise power in a place that you don’t have jurisdiction than to point it out and keep hammering on it.

                But, sure. Let’s assume you have jurisdiction over every single nook and cranny. What question would you like to have answered, again? Let’s use cut/paste:

                Is there a reason you’d want to put your energy into re-establishing them when they’ve prove to not be robust to politics? Is the thought that a legal restoration could change the politics?

                It doesn’t change overnight. It changes like a ratchet. Going back will mean that, once again, it will change. We can change it back again.

                Couldn’t it also invite dreaded BACKLASH and backfire?

                One of my fears is that there is a majority of people out there who *WANT* to be told what to do and who feel afraid without someone in authority over them. They go from being babies to children to being students to being drone worker bees. A country full of people who fit in and do what they are told and expect others to follow suit.

                If this is the case, I’ve no doubt that “liberty” will backlash and horrible, horrible freedom will be replaced by an even stronger executive. Given that I see us going there no matter what, I’d rather take a chance on trying another direction first than just inevitably going there.Report

              • Avatar Michael Drew in reply to Jaybird
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                says:

                It’s like you’re waving away the question of whether we should be able to tell, oh, Canada what to do and moving ahead to “assuming that we can tell Canada what to do, let’s answer these questions here…”

                How’s this? Let’s not assume that we can tell Canada what to do.

                And you’re pointing out that it’s not polite to hammer on that point.

                It’s really not like any of those things, and I am absolutely not pointing that last thing out and I have no idea why you think you get to say I was. I made extremely clear that I was asking pragmatic questions about why take a certain approach given where things have gone so far, which is that legal protections seem to frequently not be robust to politics. I specifically said I understood the desire not to want to accept that, and indeed nowhere did i say you have to accept that; you could dispute the premise.

                But from there you chose to jump to treating me like I was asking you to accept and endorse that jurisdiction had expanded in this way, and that indeed i would like jurisdiction to be as it is now, and that I would like for you to accept that your only option is politics. And that’s just bunk. That’s not anything like what I said.

                What I was saying was that, suppose in some area you’ve lost the jurisdiction fight (like, say, the feds regulating economic activity that can, in your opinion, only by a huge stretcher be called “commerce among the several states”). Suppose there’s not a lot of prospect of getting it back to where you want it. But suppose there are good prospects of keeping what’s done in that jurisdiction significantly less intrusive than it might otherwise be – if you double the energy you put into fighting the political fight to do that, and halve the energy you put into continuing to fight the jurisdictional fight. All I was saying is that i’ve occasionally found curious the decisions that have been made by some advocates (not even you) you I perceive as facing a situation something like that (though perhaps a bit less dramatic than I describe it here). That’s it. I just find those decisions interesting. That’s all I’m saying.

                I’m not saying it’s impolite for you to to keep hammering on the jurisdictional question here. (In fact I don’t even find your particular case to be among the curious ones.)

                I’m not arguing that for some reason you should let the jurisdictional issue drop. I’m not saying the jrisdictional issue was settled correctly (I couldn’t, since what one it was wasn’t even stated until you decided to specify one that cast your point in a sympathetic light). I’m not even saying that it’s in fact settled – (again, didn’t even say what one I was talking about, and I wasn’t talking about any one in particular in my own mind).

                All I was merely saying is that I find curious some decisions I’ve seen about how to array resources in situations where it seems to me strategically the most effective use of resources to achieve actual limits on government might have been to just fight the political fight to get government to choose not to take action X. And, I mean, just sometimes Maybe.

                (A reason that I’m interested in this is because I think there is significant evidence that, as a descriptive matter, frequently the jurisdictional question actually rides on the same track as the poltical track or is at least pushed by it. So there are possibilities for synergies there; indeed, possibly just fighting the jurisdictional fights in jurisdictional (rather than political) terms might not be the best way to win the jurisdictional fight – even if all you care about is winning the jurisdictional fight. That’s just a speculation; I’ll leave you to ponder it if you like.)

                *All* I’m saying was impolite was to insinuate that I was advancing a position on either whether a particular jurisdictional fight has in fact been lost, whether I thought you should just give up advocating on the jurisdictional question, or on where any particular subject-matter jurisdiction ought to extend to or be cut off.

                I do understand how some of my questions could have been interpreted to suggest I was doing those things, but I was repeatedly at pains to say I wasn’t. I know that I said, “Is there a reason you’d want to put your energy into re-establishing them when they’ve prove to not be robust to politics?” I should have been more clear to say that I was asking about scarce energies there – about considerations of strategic use of resources. I understand you’re not going to just concede the point, and you shouldn’t. But I did follow by saying, “This is [] straight-up honest curiosity about strategic decision. I completely get the basic feeling of having had protections and having them been taken away and wanting to act directly on that feeling.” Yet all you wanted to do was make sarcastic claims suggesting otherwise. That’s impolite. Not hammering on what you want to hammer on, but changing what I was saying to something that I wasn’t saying so that your hammer would make a particular noise.

                Now, if you want to reassert that you simply don’t believe me, and that you simply believe this all amounted to advocacy that you give up the jurisdictional fight, then that’s good. We can be clear that you regard me as a liar. But it’s false in your own way to insinuate that these meanings were there in my words: I was at pains to say what my intentions were. If you think I’m a liar as to what my intentions were in that comment, please be polite enough to say so directly.Report

              • Avatar Michael Drew in reply to Jaybird
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                says:

                I made extremely clear that I was asking pragmatic questions about why take a certain approach given where things have gone so far, which is that legal protections seem to frequently not be robust to politics.

                In fact, my mistake, this overstates – by a long shot – what I said. I didn’t, and didn’t mean to, assert that this was the case. What I said was, assume for the sake of discussion that it is the case (which many limited government advocates argue it is), that the constitution did once offer all these legal protection, and still does, and [that] have been vitiated. Why then take X approach rather than Y approach?

                And your response was, basically, “So you’re telling me it’s just a fait accompli that those protections are gone and I have to accept it, and that I should take Y approach, which means not even arguing at all to restore them!!!???!?!/1/?!/!?1/???!!??/”

                …Which I wasn’t, and it really can’t even remotely be argued that I was, given how many statements I inserted specifically trying to make clear I was not. Further, you made that response in a snarky, knowing way that suggested that of course that’s what I was doing.

                And later, you suggested that I essentially had no opposition of my own to any jurisdictional developments – that I’m okay with all this jurisdictional creep (or lack of jurisdictional rollback? – how old are sodomy laws?) suggesting that perhaps on an absurdly intrusive question (should the government be able force you to respond to me in an online politics discussion?), you could finally get me to agree on the merits of a jurisdictional question. When of course, I was simply not trying to have any merits discussion on any particular jurisdictional question, and didn’t want the discussion to be derailed into that. Which really ought to be a legitimate position to have when I’m asking other questions.

                But it wasn’t impolite for you to want to hammer the jurisdictional questions even when I didn’t want to. It was impolite for you to insinuate that I had a position that you ought to drop them, or that I didn’t understand why you wanted to keep fighting them in words (I said exactly the opposite), or that I thought they’d all been decided correctly. That’s impolite. But if it’s how you want to roll, be my guest.Report

              • Avatar Rod Engelsman in reply to Jaybird
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                says:

                I’ll repeat the question I always end up asking: is there *ANY* area of your life that should not be subject to government oversight?

                It depends on what you mean by “area.” I assume that you’re looking for a categorical answer akin to something found in the BOR, but even those aren’t absolute. So I could say something like, “Your interactions with your children, unless and until said interaction become abusive.” Or, “You may worship as you please, provided said worship doesn’t involve sacrificing unwilling virgins to a volcano.”

                It’s a gotcha question that you think proves a point just in the asking but doesn’t actually prove much of anything other than life is too complicated to ask questions like that.Report

              • Avatar Michael Drew in reply to Jaybird
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                says:

                …Though, fair enough, I did say, “If you won’t engage people sort of the terms on which they ask questions and just insist of your terms, that just makes you a boor.”

                Which I did mean to apply to answering something like,

                “What are your strategic reasons for arguing X?”
                with

                “X!!!!!!!!!!!!!!!”

                Maybe that’s impolite or maybe not, but I do understand it, and it was too general a description of my problem with what you did.

                My problem was that you essentially answered

                “What are your strategic reasons for arguing X?”

                with

                ” X!!!!!”

                *and then*,

                “So you are saying [what X argues for] is a non-possibility?’

                and then,

                “No, I’m not saying you’re saying that, but it’s pretty clear you’re saying that.”

                and then,

                “And what’s more, you won’t even agree that [absurdly egregious example of what X argues against] shouldn’t be the case?!?!?”

                Those are the things I’m not so much a fan of. Though it may still be a little boorish to do the first thing, when your answer to the actual question was eventually so thoughtful.

                (Though I guess what I’ve been asking from the start is if you think the worker drones in their current form are going to eventually reject liberty one way or another, given that history shows that the strength of their rejection tends to overwhelm jurisdictional protections, I just wonder how you view the prospects of taking some of the energy that you use arguing with (well, who is it you’d be arguing with in this example – I guess the ever-enveloping governmental Borg) over the jurisdictional questions, and redirecting some if it to trying to get the drones to see the upside of liberty. Because if you do that, maybe some of them might eventually flip their tendencies not just on what the government should choose to do with its jurisdiction, but maybe even on whether the jurisdiction should even be there to begin with. That was really my question from the beginning, however badly formed it was.)Report

              • Avatar Brandon Berg in reply to Stillwater
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                says:

                No, I’m not really sure how you got that. I mean that the meaning of “dead, dead, dead” is best understood by realizing that it’s a response to living constitutionalists. In a different context, it might be more reasonable to interpret “dead, dead, dead” to mean something else.Report

              • Avatar Stillwater in reply to Brandon Berg
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                says:

                Does that mean you agree with Burt that Scalia doesn’t think the constitution is dead, dead, dead?Report

              • Avatar Brandon Berg in reply to Stillwater
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                says:

                “Dead, dead, dead” is not a term which has a precise, universally accepted meaning. I think that Scalia thinks that it’s “dead, dead, dead” in some sense, but not in the sense in which Burt has taken it.Report

        • Avatar Jaybird in reply to Brandon Berg
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          says:

          Raich is an interesting counterpoint because, afterwards, Stevens complained that he wished he could have ruled in Angel Raich’s favor.

          Do we believe him?Report

          • Avatar NewDealer in reply to Jaybird
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            says:

            I believe Stevens a lot more than I believe Scalia when he says stuff like this.

            Stevens wrote the majority for Rauch in a way that is entirely consistent with the liberal interpretation of the Commerce Clause. His decision in Rauch is consistent with his dissent in Morrison.

            And I generally agree with the idea that being a judge or justice is a tough job and often requires making decisions that go against your personal feelings or desires on a case.Report

            • Avatar Brandon Berg in reply to NewDealer
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              says:

              I love that he felt compelled to rule unjustly in order to protect a bogus interpretation of the Commerce Clause so that the Federal government could continue to wield far more power than was ever intended.

              That’s living with purpose.Report

              • Avatar NewDealer in reply to Brandon Berg
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                I don’t disagree with his interpretation of the Commerce Clause.

                The truth is that we go through waves. During the era of Chief Justice John Marshall and his colleagues believed in a very broad commerce clause. Then there was a belief in a more conservative application of the commerce clause. Then it got more active again during the FDR to Warren Court era, and then conservative.

                These tensions have and will always be present in American history. Your interpretation of a small federal government possibly made sense during an era when America was mainly rural and most people lived off their own farms. It does not make sense now in a nation where most people work as employees for large companies and depend on a national and federal highway system.Report

              • Avatar Kolohe in reply to NewDealer
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                says:

                Well, since the most important corporations and commerce are multinational now, why do even national governments make sense? Why not a world government?Report

              • Avatar Brandon Berg in reply to NewDealer
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                says:

                I don’t disagree with his interpretation of the Commerce Clause.

                Then you’re wrong, period. I laid out the evidence here. The only response I got—the only response I ever get when I point this out—is an “Oh yeah? Well so what?” from Morat20. The argument that we should just ignore out the Constitution, while a terrible idea, is at least intellectually tenable. The claim that contemporary interpretations of the commerce and tax and spending clauses are correct in any historical sense is not.

                During the era of Chief Justice John Marshall and his colleagues believed in a very broad commerce clause.

                The relevant question is how the Constitution was understood by those who chose to ratify it, not what John Marshall, or even James Madison, personally believed.

                That said, let’s be clear here: Marshall believed in a broad commerce clause relative to his contemporaries. I doubt very much that you can cite any rulings of his that imply the constitutional legitimacy of the shenanigans which inspired your pseudonym.

                It does not make sense now in a nation where most people work as employees for large companies and depend on a national and federal highway system.

                Just saying that does not constitute an actual argument. Pretty much everything the Federal government does that runs afoul of the Constitution as written could be implemented at the state level. The only “problem” is that people would be able to vote with their feet.Report

    • Avatar BlaiseP in reply to Burt Likko
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      says:

      Scalia-the-talker and Scalia-the-judge are Jekyll and Hyde. I completely discount everything he says when he’s not in his robes. For the life of me, I don’t understand all the clucking and flapping of wings over Scalia saying such things: for all his much speaking and doctrinaire utterances about the Constitution, everyone knows he’s a captious judge prone to Makin’ Shit Up as it suits his purposes.Report

      • Avatar M.A. in reply to BlaiseP
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        says:

        No justice who had a hand in the majority decision of this nonsense ought ever be able to claim to either be an originalist, or for that matter a constitutional scholar, ever again.Report

        • Avatar BlaiseP in reply to M.A.
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          says:

          Scalia’s an Original, all right. But Thomas is his Copy.Report

          • Avatar Jason Kuznicki in reply to BlaiseP
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            says:

            The logical problem with this post is that it equivocates about how we come to “like” a decision.

            We may like a decision because it suits our narrow self-interests. In which case we are not simply bad judges, but unethical ones.

            We may like a decision because it is well-written and well-reasoned. This is a better reason to like a decision, even if it ultimately comes down in a direction that might not be so likeable owing to other factors.

            We may like a decision because it is ideologically consonant with our own deeply held beliefs, even if these don’t suit our personal interests. As an example, I would “like” the decision that held the mortgage interest tax credit unconstitutional — I think it’s terrible public policy, and I’d welcome any solid argument that could successfully do away with it. But I’d pay a lot more in taxes if it went away.

            Mash all those different kinds of “liking” up. Pretend they’re the same thing. And you get the confusion in the original post.

            Which is not to defend Scalia. The constitutional philosophy of originalism has a good deal going for it, but Scalia’s opinions are only occasionally a part of it.Report

            • Avatar Sam Wilkinson in reply to Jason Kuznicki
              Ignored
              says:

              Jason,

              Do you think Scalia strikes DOMA? Or does he find that the Founding Fathers, who never said a word about it nor put it in their precious documents, obviously thought that the federal government could regulate marriage?

              That’s my problem with his originalism. It stops applying when the decisions he’d have to make aren’t the ones that he’d personally make.Report

              • Avatar Brandon Berg in reply to Sam Wilkinson
                Ignored
                says:

                The DOMA, as I understand it, said that:
                1. Where marital status is relevant to federal law, marriage is defined to be between one man and one woman.
                2. States shall not be compelled to recognize same-sex marriages from other states.

                I don’t want to defend the law itself, but it’s pretty clear that both of these fall within the scope of Congress’s powers. Granted that some of the federal law to which #1 above applies is itself unconstitutional (Social Security, for example), but DOMA didn’t make it any more unconstitutional.Report

              • Avatar Brandon Berg in reply to Brandon Berg
                Ignored
                says:

                To elaborate, DOMA does not in any way, shape, or form interfere with a state’s ability to define marriage within its own borders for its own purposes. It deals exclusively with federal and interstate issues, which is precisely what Congress’s jurisdiction is.Report

              • Avatar Patrick Cahalan in reply to Brandon Berg
                Ignored
                says:

                Are states compelled to recognize other state’s marriages, generally?Report

              • Avatar Burt Likko in reply to Patrick Cahalan
                Ignored
                says:

                That’s an open question. One interpretation of the Full Faith and Credit Clause is that yes they are, and the other is that Congress gets to act as the arbiter and decide when states do or don’t have to do that. Both interpretations have substantial enough amounts of meat on their bones, and there is as of yet no definitive ruling from SCOTUS.Report

              • Avatar Patrick Cahalan in reply to Patrick Cahalan
                Ignored
                says:

                This sounds suspiciously like one of those cases where the Courts are telling the Legislative branch to get their heads out of their butts and fix that, but the Legislative branch is pointedly ignoring the Court.Report

              • Avatar Brandon Berg in reply to Patrick Cahalan
                Ignored
                says:

                Hm…I haven’t really thought much about the Full Faith and Credit clause before. Contemporary commentary seems to be pretty scarce, so I’m not entirely sure what to make of it.Report

              • Avatar M.A. in reply to Patrick Cahalan
                Ignored
                says:

                Mr. Likko, it would be an interesting test case to have a bisexual same-sex pair get married in a state allowing it, then each marry a hetero pairing in a state that did not recognize same-sex partnerships at all.

                If prosecuted for bigamy or polygamy, the state would have to recognize their same-sex pairing in order to justify the prosecution.Report

              • Avatar James Hanley in reply to Patrick Cahalan
                Ignored
                says:

                Re: Full Faith and Credit Clause,

                SCOTUS has recognized a “public policy exception” to the clause. In Pacific Employers Insurance v. Industrial Accident (1939), they wrote:

                And in the case of statutes…the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state,

                It’s not quite clear whether a state absolutely has to recognize marriages from another state that comply with its own policies, but as a matter of comity they normally do–they have no reason not to, so they do. But they normally do not have to recognize out-of-state marriages that do not comply with their own marriage laws. E.g., a first cousin marriage that is valid in state X does not have to be recognized by state Y if it does not allow first cousin marriages.

                I would argue that–little as I like it–SSM clearly fits under this public policy exception.Report

              • Avatar Mike Schilling in reply to Patrick Cahalan
                Ignored
                says:

                have a bisexual same-sex pair get married in a state allowing it, then each marry a hetero pairing in a state that did not recognize same-sex partnerships at all.

                Wearing Groucho glasses, so he can reply to “That’s bigamy!”
                with:

                “It’s bigamy too. It’s big of all of us.”Report

              • Avatar Jaybird in reply to Patrick Cahalan
                Ignored
                says:

                If I recall correctly, Ellen put “married, withhold at higher single rate” on her tax form and WHOA DADDY did the IRS come down on her like a ton of bricks.

                Let me google that.Report

              • Avatar Jaybird in reply to Patrick Cahalan
                Ignored
                says:

                I’m probably the only person on the net who goes to “Ellen Feiss” before Ellen Degeneres.

                Anyway, apparently I made that story up.

                Which sucks because it’s a good story.Report

              • Avatar Patrick Cahalan in reply to Brandon Berg
                Ignored
                says:

                Let me rephrase.

                If the state decides who does or does not qualify for a marriage, why does the federal government get to pick and choose which marriages it recognizes or not?

                If I’m married in California, with legal privileges attached, why does crossing a state border remove those privileges?

                One can argue that I ought not to have those privileges, I suppose, but I think it’s rather odd that I can have effective power of medical decisionmaking over my wife in the event of incapacity and if I happen to be visiting my in-laws at the time of that incapacity suddenly I don’t have that effective power of medical decisionmaking without a separate legal document.Report

              • Avatar Brandon Berg in reply to Patrick Cahalan
                Ignored
                says:

                Because the privileges of marriage are granted by state law, and each state has the authority to determine for itself the conditions under which it will grant those privileges.Report

              • Avatar Patrick Cahalan in reply to Patrick Cahalan
                Ignored
                says:

                Certainly.

                But once they are granted by a body that is recognized with the authority to grant them, they should not be able to be revoked by another body with the authority to grant them. Because granting and revoking are kind of different animals.

                Otherwise the relationship is a mess.

                If you get married in California, under California law, your legal obligations and privileges ought to be defined by California law, because that’s where the contract (so to speak) we enacted and that’s where the terms are set. If you move to another state, that state should recognize your marriage as defined by California law.

                This applies to divorce, too, fwiw.

                Otherwise, they’re effectively given the power to ex post facto revise a contract, which seems sort of the antithesis of what we all think contracts should look like, yes? Under what crazy-ass rule of law would we accept this condition on other types of contracts?

                They don’t have to *grant* California marriages, but they should *recognize* them. Similarly, they shouldn’t be able to grant a divorce from a California marriage unless they’re meeting the conditions for a divorce as decided by California.

                That’s what “recognizing legal authority” means, to me, anyway.

                One can argue that the states shouldn’t be in this business at all and we should just call a contract a contract (I’m on board with that), but that’s not what we’re talking about, here.

                The federal government should be either forced to recognize all marriages, or the authority to grant a marriage should me removed from the states. Not much else makes sense, to me.Report

              • Avatar Kim in reply to Patrick Cahalan
                Ignored
                says:

                Patrick,
                granting is a mess. Common Law Marriage makes a lot of stuff weird.
                Say I go live in a place that has it, and I defacto create a common law marriage. Then I go to another state, and I wish to marry someone else. Am I now a bigamist or adulterer?Report

              • Avatar Mike Schilling in reply to Patrick Cahalan
                Ignored
                says:

                My understanding of how this has actually worked in the past is that mariages are not always recognized in a different state, but divorces are. Hence the Lovings not being able to simply get married in a sane state and then return to Virginia, but anybody from anywhere being able to get a quickie Nevada divorce.Report

              • Avatar Will H. in reply to Sam Wilkinson
                Ignored
                says:

                I want to take a stab at the DOMA thing (ftr, I think it’s horrible policy):

                DOMA is an act of Congress. Acts of Congress fall within the original jurisdiction of the federal courts.
                The domestic relations exception is a judicial doctrine, which is derived from the authority of the court to make rules.

                The act of Congress is greater.
                Congress has authority to re-allocate the rule-making authority of the courts, should they so desire.Report

            • Avatar Michael Drew in reply to Jason Kuznicki
              Ignored
              says:

              Well but aren’t all those questions also begged by Scalia’s first use of “like”? Maybe that’s your point – that the confusion in the post flows from the original equivocal use of “like” in the comment.Report

            • Avatar M.A. in reply to Jason Kuznicki
              Ignored
              says:

              We may like a decision because it is ideologically consonant with our own deeply held beliefs, even if these don’t suit our personal interests. As an example, I would “like” the decision that held the mortgage interest tax credit unconstitutional — I think it’s terrible public policy, and I’d welcome any solid argument that could successfully do away with it. But I’d pay a lot more in taxes if it went away.

              I always find these sorts of arguments weird.

              For instance, a libertarian friend of mine (who’s of the past few years veered far too near to Alex Jones & “Sovereign Citizen” land) insists that the current form of federal income tax is unconstitutional, because of Article 8, Section 1: The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

              He insists that because income tax is “nonuniform” (e.g. not a flat rate), it’s unconstitutional.

              First problem with his argument is that the phrasing “uniform throughout the United States” appears to mean that all jurisdictions of the US must apply the same law.

              Second problem is that… taxes aren’t part of that. It’s duties, imposts and excises that have to be “uniform throughout the United States.” “Taxes”, the key word, are part of the first sentence but not the second quite deliberately. Four categories are established, only three are required to be “uniform throughout the United States.”

              Too many of these arguments involve seizing on a single word and forgetting to pay attention to a whole sentence or paragraph, sadly.Report

              • Avatar Jonathan McLeod in reply to M.A.
                Ignored
                says:

                M.A., I’m really missing something here. I don’t get how your example (which makes a lot of sense to me) relates to what Jason wrote. Could you explain the connection a little more?Report

              • Avatar M.A. in reply to Jonathan McLeod
                Ignored
                says:

                Jonathan,

                Jason Kuznicki says he would “like” a decision that declared a certain tax deduction unconstitutional.

                Logically, I can think of only one way to get there, and it was the (very, very flawed) logic that my libertarian (again, pointing out, he’s going to the point of very extreme) uses to say that he believes any other income system than a “flat tax” system to be unconstitutional.

                My point being that for many forms of “constitutional originalism” and other constitutional arguments, what ends up being argued isn’t really the constitution at all. Someone plucks a line here or there out of context, or misapplies a word from one sentence to a further sentence that clearly doesn’t apply (my example above: Congress has power to lay and collect ” Taxes, Duties, Imposts and Excises” but only “Duties Imposts and Excises” are required to be uniform throughout the country).

                I think that someone trying to declare the mortgage interest deduction unconstitutional would have to commit that kind of error. I’m not sure if Jason Kuznicki would agree with me regarding the constitutional basis of that (I think it’s pretty clear Congress has power to make the tax codes as they choose, especially with the 16th amendment in place too) so perhaps I can ask him to clarify whether he really thinks there might be a valid constitutional argument for invalidating any classes of income tax deduction?Report

              • Avatar Jonathan McLeod in reply to M.A.
                Ignored
                says:

                I think he was offering that as an example of a ruling that would, hypothetically, jibe with his ideological policy preferences – the whole point of which is demonstrate one way that someone could define “liking a ruling”.

                I also think that by writing, “I’d welcome any solid argument that could successfully do away with it,” he’s saying that he doesn’t currently have a solid argument to claim it’s unconstitutional. But, considering the purpose of his comment was to talk about the different things one might mean when they say they “like” a ruling, I think that’s kind of a side issue.Report

              • Avatar M.A. in reply to Jonathan McLeod
                Ignored
                says:

                I’d still like to hear his take on the matter.Report

              • Avatar Jason Kuznicki in reply to Jonathan McLeod
                Ignored
                says:

                Jonathan McLeod was exactly right. I don’t have any solid arguments that would hold this tax deduction unconstitutional. If I were aware of an argument — one that was solid, not specious like your example — then I would like that solid argument.

                To my claim that I’d welcome a solid argument, you offer a specious one and wonder aloud why I don’t like that one too. That’s, well… specious.Report

              • Avatar M.A. in reply to Jonathan McLeod
                Ignored
                says:

                To my claim that I’d welcome a solid argument, you offer a specious one and wonder aloud why I don’t like that one too.

                No, I think you are misrepresenting what I said.

                To your claim that you’d welcome a solid argument, I offered the only argument I’ve ever heard that seems to apply on the matter. So I asked you, specifically, if you were aware of a better argument. To wit:

                so perhaps I can ask him [that’d be you] to clarify whether he really thinks there might be a valid constitutional argument for invalidating any classes of income tax deduction?

                As the mortgage deduction is an income tax deduction, it falls under that scope.

                But thank you for clarifying that you are unaware of any solid arguments to invalidate income tax deductions on a constitutional basis.Report

              • Avatar Pierre Corneille in reply to M.A.
                Ignored
                says:

                M.A.,

                Your libertarian friend is neglecting to account for the 16th amendment. Before that amendment, his argument, if I understand correctly, was more or less the right one, although the lawyers here can correct me if I’m wrong.Report

              • Avatar Brandon Berg in reply to Pierre Corneille
                Ignored
                says:

                Correct. The US briefly had income taxes prior to the ratification of the sixteenth amendment., but they were ruled unconstitutional because of Article I, Section 9, Clause 4:

                No Capitation, or other direct, Tax shall be laid, unless in proportion to the Census or Enumeration herein before directed to be taken.

                The Sixteenth Amendment essentially made this clause null and void.Report

            • Avatar NewDealer in reply to Jason Kuznicki
              Ignored
              says:

              The problem is that Scalia’s originalism often seems entirely consistent with his very socially conservative viewpoints. I find this convenient to say the least.

              Judge Posner is very good at writing opinions that say “Even though I think the law should be Y, the law is X so my decision is in-line with X”. Justice Stevens is better at saying that he wished he could help a particular party but the law is X so he must rule the other way.Report

              • Avatar Jaybird in reply to NewDealer
                Ignored
                says:

                Yeah. Raich pretty much exposed the man behind the curtain.

                Indeed, it’s not even like we couldn’t *STILL* use Raich as an example of Scalia’s venality if he were part of the 4 in a 5-4 decision. “He came out and said how he used to make fun of Wickard! He’s hated Wickard since he was in law school! He had an opportunity to knock Wickard and he took it!”Report

            • Avatar Brandon Berg in reply to Jason Kuznicki
              Ignored
              says:

              As an example, I would “like” the decision that held the mortgage interest tax credit unconstitutional — I think it’s terrible public policy, and I’d welcome any solid argument that could successfully do away with it. But I’d pay a lot more in taxes if it went away.

              You’re doing it wrong Jason. Did you forget to put on your FYIGM wristband again?Report

          • Avatar Jason Kuznicki in reply to BlaiseP
            Ignored
            says:

            Sorry Blaise, that was intended as a comment on the original post, not on your comment.Report

  2. Avatar Michael Drew
    Ignored
    says:

    Scalia is basically saying that if you don’t occasionally find that applying the law correctly unjustly hurts people, or at least unjustly fails to help them, then you are not applying the law correctly.Report

    • Avatar Murali in reply to Michael Drew
      Ignored
      says:

      It’s true. It’s just that Scalia has the least credibility when it comes to things like this.Report

      • Avatar Michael Drew in reply to Murali
        Ignored
        says:

        Yes, it’s true that that’s what he was saying.Report

        • Avatar Murali in reply to Michael Drew
          Ignored
          says:

          I don’t know whether you are being dliberately coy, but look at it this way. The idea of the rule of law is that rules, even substantively unjust ones be applied uniformly and predictably. This makes the system as a whole more just as it allows people to plan their lives in such a way as to work around the horrible law or cause it to be such that the law becomes generally unacceptabl and repealed. For this reason, even if applying a law in a particular case applying the law looks very unjust, it should be done. Let us suppose we were playing baseball because it is fun. Let us suppose that I am a poor hitter (I am) and that if I go out after 3 strikes I will be really unhappy. Let us even suppose that other people will not really mind giving me a chance. The other team is already way ahead. Does this mean that it is okay to break the 3 strikes rule for me? No.

          Similarly, the rule of law is jutified bcause in the long run, it allows people to carry out rational plans of life and the laws in a society governed by the rule of law will tend, over time, to become more acceptable adn substantively just. But that means that we have to be strict and say that even if there is a particular judgment that you think is unjust or wrong, if the law demands that judgment, that is the judgment that you should give. Of course, laws can at times be open textured enough to give judges some wiggle room. But we cannot expect that it will always do so.

          This doesn’t mean that Scalia has done anything of the sort or that Scalia is right about originalism.Report

          • Avatar Michael Drew in reply to Murali
            Ignored
            says:

            Don’t accuse me of being coy when the post was all about finding his comment nearly inscrutable and I merely spoke to what Scalia meant. I’m not looking to debate the merits of this test of Scalia’s to figure out whether he’s been a good judge. I explained what Scalia meant; you said that it’s true, which is ambiguous, so I made a point of saying that, yes, it is true that what I said he meant is what he meant. Not interested in discussing whether it’s a good by-test for good judging.Report

            • Avatar Murali in reply to Michael Drew
              Ignored
              says:

              I thought it was fairly obvious what Scalia was saying. I took you for disagreeing with what Scalia was saying.Report

              • Avatar Michael Drew in reply to Murali
                Ignored
                says:

                Nope, and sorry for the harshness. Strong preference not to get fully involved in the merits of it right now, is all.

                It was obvious to me what he was saying as well, but, with apologies to Sam, it didn’t seem fully obvious to him in the post. I thought I could crystalize the viewpoint so it could be seen clearly by everyone. I also thought it was kind of clear that that was my intent tbh, but I understand the misunderstandingReport

              • Avatar Murali in reply to Michael Drew
                Ignored
                says:

                Hey, it takes two to tango. At least some of the blame might lie with me. I admit to writing my comment while feeling a bit miffed, so some of that may have come through.Report

              • Avatar Michael Drew in reply to Michael Drew
                Ignored
                says:

                …Again, though: people are not disagreeing with my characterization of his meaning (and they certainly could, in fact I’m beginning to reconsider it myself), and yet a straightforward statement of it reads, even to those who affirmatively more or less agree with it, enough like a parody or a sarcastic statement of disagreement or even contempt for the view. This, too, can tell us something if we want it too.Report

              • Avatar Murali in reply to Michael Drew
                Ignored
                says:

                Only that at first blush, it looks fairly counter-intuitive and uncaring to boot.Report

              • Avatar Michael Drew in reply to Murali
                Ignored
                says:

                Well, it does, yes. Maybe at later blushes as well.Report

              • Avatar Michael Drew in reply to Murali
                Ignored
                says:

                …Which we might care about if it turns out it’s additionally not a necessary or even a good test for whether a judging career has been a good one.Report

              • Avatar Murali in reply to Murali
                Ignored
                says:

                Well, what is the probability that US laws are perfectly just?

                Given that the US is definitely not perfectly just, what is the probability that a judge willlegally obligated to enforce a law that he disagrees with?

                If it seems that a judge’s judgments always match his ideological commitments, what is the probability that the judge has never substituted his own judgment for the law even when the law did not allow him to do so.Report

              • Avatar Michael Drew in reply to Murali
                Ignored
                says:

                No, that’s right. Again, it’s a matter emphasis and approach to assessing it all from 30,000 ft – what you choose to say about that – to make the affirmative test you choose to advance (if you choose to advance one).Report

              • Avatar Michael Drew in reply to Murali
                Ignored
                says:

                …And you’re still softening that test. He said judges have to not like some judgements they issue – not just that there must be judgements that don’t “match” judges’ ideological commitments. What judges like, well first of all, what they like may be applying the law correctly. But beyond that, they may be able to like judgements well enough that don’t “match their ideological commitments.” (And I’m not sure that concept is as clear or helpful as you think).

                Furthermore, as you’ve argued, there is legitimate room for interpretation – the law is not perfectly determined. We do call them judges and justices because we want them to pursue justice consistent with the law. And that’s something Scalia chooses not to emphasize, though he could. That’s why his choice of emphasis can tell us things about him.Report

              • Avatar Michael Drew in reply to Murali
                Ignored
                says:

                Murali, just to clarify, let me amend my first interpretation just only so slightly to make it more directly reflective of Scalia’s test. Let’s say his meaning was

                if you don’t occasionally find that applying the law correctly hurts people, or at least fails to help them, unjustly enough that you don’t like the decision you have to make, then you are not applying the law correctly.

                If that’s his meaning, then I do dispute its simple truth. There is an undefined probability that any set of laws are perfectly just, because their final justness does depend ultimately to some degree or other on their application. I believe the probability that there a legitimate way to construct interpretation of the laws in the United States such that pursuant to their application by those constructions, outcomes will be nearly always close enough to just that they will not be inevitably forced to dislike at least one of them. Thsi doesn’t mean there is any guarantee that in any career, a judge will be able to avoid being forced not to “like” a legal result. But there is, I believe, enough doubt of that that explicitly accepting and indeed positively asserting the necessity that that a good judging career must involve those situations is not a test for a good judging career that any honest judge has to embrace. An aim to always impart justice under the law and a demurral of advancing that as a positive test for good judging is not compulsory for a judge. A judge simply has to accept that there is no guarantee against such a situation.Report

              • Avatar Michael Drew in reply to Murali
                Ignored
                says:

                An aim to always impart justice under the law and a demurral of advancing that as a positive test for good judging is not compulsory for a judge.

                Sorry, bad construction.

                An aim to always impart justice under the law is consistent with being a good judge, and the test I lay out above – that a good judging career must include not liking some number of decisions because of too much injustice in them – is not a necessary test for identifying a good judging career.Report

              • Avatar Michael Drew in reply to Murali
                Ignored
                says:

                …agh!

                Sorry – I believe that probability is low, but significantly above ~ zero.Report

              • Avatar Murali in reply to Murali
                Ignored
                says:

                If that’s his meaning, then I do dispute its simple truth. There is an undefined probability that any set of laws are perfectly just, because their final justness does depend ultimately to some degree or other on their application. I believe the probability that there a legitimate way to construct interpretation of the laws in the United States such that pursuant to their application by those constructions, outcomes will be nearly always close enough to just that they will not be inevitably forced to dislike at least one of them

                I don’t think that this is the case. While it is true that there is room for interpretation. I believe that any reasonable system of interpretation should deliver a reasonable uniformity of application. However, this would end up constraining the full range of flexibility allowed in interpretation that would allow a judge the latitude to apply the law in such a way as to generate a substantively just decision in a small, but significantly non-zero percentage of cases.

                Given that judges see hundreds or maybe even thousands of cases in their career, the probability of at least one or two (maybe even more) such cases cropping up seems close to 1.Report

              • Avatar Michael Drew in reply to Murali
                Ignored
                says:

                Somewhat close to 1, I agree. But far enough below that they needn’t pre-commit as a condition for having a an approach to judging that can result in a “good” career to abandoning an aim to uniformly issue just rulings consistent with law throughout such a career. The likelihood they can make it all the way through is near-zero, but far enough above that they don’t have to commit ex ante to abandoning justice in order to apply the law.Report

              • Avatar Michael Drew in reply to Murali
                Ignored
                says:

                …commit ex ante to actually abandoning it, that is. They must commit to being willing to do so where necessary, of course.Report

          • Avatar Michael Drew in reply to Murali
            Ignored
            says:

            …I will, however, say that nothing you’ve said here implies that either unjust treatment under the law or unnecessary causing of pain will be a necessary result of the correct application of the law. And yet I believe, and others have agreed, that that is the way Scalia chooses to formulate his test for a good career of judging. We can allow that to tell us something about him – about his approach to and emphases in his profession and about the man himself – if we so choose.Report

          • Avatar M.A. in reply to Murali
            Ignored
            says:

            For this reason, even if applying a law in a particular case applying the law looks very unjust, it should be done. Let us suppose we were playing baseball because it is fun. Let us suppose that I am a poor hitter (I am) and that if I go out after 3 strikes I will be really unhappy. Let us even suppose that other people will not really mind giving me a chance. The other team is already way ahead. Does this mean that it is okay to break the 3 strikes rule for me? No.

            3 strikes? *shrug* In the local kids league when I grew up, kids were given a walk at 3 balls rather than 4. Since the games only lasted 4 innings (young attention spans being what they are) and the maximum number of kids per team was 20 (to accommodate kids being out sick, away from town for family vacations, or anything else that might come up) another rule was in place: the 4th inning lasted until every player from each team had gone up to bat at least once regardless of how many outs it took.

            Nobody cared that the rules were changed. It made sure all the kids got to have fun.Report

            • Avatar Jaybird in reply to M.A.
              Ignored
              says:

              And how much sense this makes to apply it to adults depends on how much overlap you see between adults and children.

              Other adults, I mean.Report

            • Avatar Murali in reply to M.A.
              Ignored
              says:

              Nobody cared that the rules were changed. It made sure all the kids got to have fun.

              And this is a good thing to teach children? And what kind of lesson do you think kids will learn if they think that being in a position of authority gives you license to change the rules willy-nilly to affect the outcome that you want? That’s the same kind of attitude that gets minorities higher sentences on average for the same crime as white people.Report

              • Avatar Rod Engelsman in reply to Murali
                Ignored
                says:

                If the outcome is to have fun, sure. For instance, I don’t think we (my family) has ever played a game of Trivial Pursuit strictly by the rules. It’s way too hard to get the little pie pieces that way and a game would last for a week and get boring.

                Note that in M.A.’s example the inning was stretched out to make sure everyone got to play, NOT to ensure that Team Blue won or something similar. The rules were changed but they were still fair to both sides.

                Normally you wouldn’t want to do something like this for more substantial things like laws, but when Storm Sandy hit the East Coast just before the election some of the rules for absentee voting and such were “liberalized” in the affected states. I’m not aware of anyone from either party making much of a fuss about it.Report

              • Avatar Kim in reply to Murali
                Ignored
                says:

                You’ve obviously never played games with a game designer.Report

          • Avatar Will H. in reply to Murali
            Ignored
            says:

            Courts decide cases in the way they think they ought to go all the time.
            Caselaw often contains conflicting views of the same arguments.Report

    • Avatar Brandon Berg in reply to Michael Drew
      Ignored
      says:

      And he’s correct. Without originalism, we don’t have a written Constitution. We just have nine dictators-for-life calling the shots arbitrarily. Originalism isn’t perfect, but it’s the lesser evil.Report

      • Avatar david in reply to Brandon Berg
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        You already have nine dictators-for-life calling the shots arbitrarily. There is no secondary court that gets to gauge whether the nine judges are applying originalism “correctly”.

        The only countervailing power is the other two branches deciding to slap the nine around, either explicitly via impeachment, or implicitly via court-packing bills and such.Report

        • Avatar Damon in reply to david
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          Not quite true. I once had a converstion with someone about the supreme court wherein I asked “how many divisions does the supreme court have?”

          He didn’t understand, but the point is that if no one listens to them, they have no power.Report

          • Avatar Burt Likko in reply to Damon
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            This is a decent enough point, an echo of President Jackson.

            The reason people listen to and respect SCOTUS when they find a decision unpleasant is because they respect the rule of law. I’ll give this to Scalia — he argues for a consistent and principled approach to the law, for the purpose of commanding that sort of respect and legitimacy.Report

            • Avatar b-psycho in reply to Burt Likko
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              So basically he argues for what he doesn’t do, even though he’s in position to do it?

              That this approach isn’t commonly seen as undermining “rule of law”, simply because it’s pared with the staid verbiage of “rule of law” & the like, is amazing. Contradictions abound simply because the public doesn’t pay enough attention.Report

      • Avatar Murali in reply to Brandon Berg
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        says:

        Without originalism, we don’t have a written Constitution. We just have nine dictators-for-life calling the shots arbitrarily

        No, you just need an easily identifiable interpretation method. Originalism is one* interpretation method among others and it is hardly the easiest to apply. Other ways of interpretation are plain meaning of the text or alternatively most recent legal meaning. I myself think the lasat one is better as it establishes uniformity in law without making it too rigid. No individual judgment can be made at the judge’s whim, but at the same time, the law is not so rigid that is unapplicable to new unforeseen circumstances.

        It also provides the least disruption in the law. As it is, not everybody has been an originalist. If tomorrow, everybody were to start being originalists, there would be a severe disruption in the legal system. Things that were for a long time legal would be illegal and vice versa. But since continuity and uniformity of law is what we are looking for when we are aiming at when we think about the rule of law, the disruption is even more harmful. Using the most recent legal meaning of the text allows us a seamless way to transition from a haphazard system where judge’s own moral judgments unduly influenced their interpretation of law to one where the law is interpreted in a more uniform manner.

        *Originalism is not just one method. There is originalism about intent of framers, intent of ratifiers or even originalism about the meaning of the text. i.e. What did the text mean when it was written into law? The last is what Scalia claims to be, though I don’t know if he has assiduously kept to the principles he has proclaimed.Report

        • Avatar Will H. in reply to Murali
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          says:

          I used to think pretty much the same. Now, I see Constitutional law as a very small part of the work of the Court.
          Most of the Court’s work is in the interpretation of statutes, the acts of Congress. That is by far the bulk of the caselaw out there.
          The real Constitutional type questions are relatively few and far between. These types of cases typically involve a state actor or an employer; e.g., School Board of Town X v. First Amendment, or something like Dead Person v. Police Dept. of Town X.

          That is, it is the role of the courts to determine the limits of governmental power. The legislature isn’t going to do it. The executive isn’t going to do it. It has to be the courts.
          It was always against the states that the courts were limiting the power of government. It has been since the Fourteenth Amendment, at the very least (and the FTCA). The role of the several states is to abuse the rights secured to citizens by the Constitution, and the role of the courts to limit the states overreach.
          Or overreach by an employer.

          I just don’t see a lot of Constitutional law developing that doesn’t involve state actors or employers.Report

      • Avatar M.A. in reply to Brandon Berg
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        says:

        Originalism is crystal-ball-gazing trying to derive the thought processes of dead men whose experience doesn’t remotely match the experience of modern individuals.

        Originalism also gives us all sorts of stupid twists, such as people who take the writings of men who had nothing to do with writing the Constitution (Washington, Adams, Jefferson) and claiming that their words are “the original meaning of” a document they had no part in writing.

        Originalism is a trap, not a valid philosophy of constitutional interpretation. It consists of one ploy and one ploy only, the fallacious argumentum ad verecundiamReport

        • Avatar Murali in reply to M.A.
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          says:

          The Law flows from authority: public officials are authorities. Since we are asking what the law is and not what it ought to be or what the moral truth is, an appeal to authority is not fallacious. Even though Originalism is problematic (the original intent/meaning being too far removed from us for our speculations to reliably converge) even my favoured interpretive method (by looking at how the words were interpreted in the most recent relevant case) is going to rely on an appeal to authority. In my case it is an appeal to pronouncements and decisions by the same or maybe some previous judges.

          In fact, any interpretive method that is going to be used in a pluralistic society which has a reasonable chance of delivering uniformity of law is going to rely on some kind of authority.Report

          • Avatar James Hanley in reply to Murali
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            says:

            The Law flows from authority:

            Perhaps, at least in practice, but it’s worth putting on the record that foundational American political theory claims the reverse.Report

            • Avatar Murali in reply to James Hanley
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              says:

              You’re misunderstanding me, I think. By authority, I don’t mean force or power or anything like that. Rather, Authority is about legitimacy which is itself about widespread recognition by the people. I’m not familiar with Foundational American Political Theory, but is it the case that FAPT would calim that this is not the case?Report

              • Avatar James Hanley in reply to Murali
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                Well, I’m not positive I’m following you, but ultimately authority comes from the sovereign people, and is expressed as law, and the legitimate authority of any office in the system derives solely from law.

                Maybe that helps, maybe not.Report

              • Avatar Murali in reply to James Hanley
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                says:

                I was saying that authorities are legitimised by the people. Even though we could say that the people ultimately authorise who the lawmakers are, authority doesn’t reside in them. Why? because the people don’t recognise themselves as the source of rules. They look to judges to identify what the relevant rule is.Report

            • Avatar Stillwater in reply to James Hanley
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              says:

              Nice comment, Murali. I tend to agree. But the very concept of “authority” requires the arrows to go both ways. It’s not just brute force one way of the other, yes? It’s a reciprocal relation between government and governed which can be pushed to it’s outer limits.

              James, you wrote

              Perhaps, at least in practice, but it’s worth putting on the record that foundational American political theory claims the reverse.

              I don’t think that’s true, is it? The appeal to authority was Gawwwd hisself. That the basic principles on which our government is founded are God given.Report

              • Avatar James Hanley in reply to Stillwater
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                says:

                Well, the equality and liberty of all are supposedly granted by the creator, yes. But not political authority.

                That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the Peopleto alter or to abolish it, and to institute new Government

                This was actually a critical point in the argument, because the King’s authority was supposed to come from God, and instead of arguing that God was transferring authority from the King to some other rulers/governors, Jefferson rejected the claim that political authority came from God at all.

                Of course in the eyes of royalists this meant he was rebelling against not just the king, but against God, too. This being Jefferson, they were probably right.Report

              • Avatar James Hanley in reply to Stillwater
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                Stillwater,

                Re: your first paragraph, if I understand you correctly, I agree. The concept of legitimacy is a poorly understood one in political theory. We know there’s this thing called legitimacy and governments have it, but sometimes they lose I, and it’s hard to say just where it comes from or how we know it when we see it. To some extent it must come from the people, but to some extent governments just seem to be able to claim it and make it stick even when they’re despised by their people.

                I’m not sure if that’s quite the same as what you were talking about, but it’s somehow at least vaguely related, I think, maybe.Report

              • Avatar Murali in reply to James Hanley
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                Can’t we just suppose that it is a coordination game? Suppose that if most of the people did accord legitimacy to same peron or group, then it follows from them according this group of people legitimacy that the rules that group enacts are publicly recognised. It is only when rules are mutually recogised can two persons coordinate. So, for the whole society to coordinate, the rules and the source of the rules must be publicly recognised. This affording iof legitimacy is what confers authority on the group. The costs of not coordinating are very high. Why? state of nature, war of all against all etc etc etc. What this means is that everyone converging on someone, anyone, is almost always going to be better than a split decision in terms of who has legitimacy.

                But because it is a coordination game, sub optimal rules and sub optimal persons can still retain legitimacy. Here is why:

                The nature of a coordination game is such that the payoff for coordinating on some point is almost always better than not coordinating. That means that even if one coordination point is relatively sub-optimal and even if everyone would be better off if they shifted to a different coordination point, no individual has the incentive to shift coordination points on his own. The relative individual payoff for any one person who is in a coordination point with everyone else to unilaterally move away from that coordination point is negative. So that means that each coordination point is a nash equilibrium.

                So, how is legitimacy and thus authority lost? When the current coordiantion point is as at least as bad as not coordinating for a sufficient number of people, they have no incentive to continue coordinating at that point. i.e. they have no incentive to continute affording legitimacy to the current rulemakers. Enough people breaking away from the current equilibrium is sufficient to disrupt the game for everyone. They then wonder around the game space until they converge on a more acceptable coordination point.Report

              • Avatar James Hanley in reply to Murali
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                says:

                You’re speaking my language, but in the context of American political science, most of the theorists who talk about legitimacy hate game theory as an evil assault on all that is good, true and holy…i.e., the normative theory that is the only legitimate political science. So be careful who you pitch that idea to; there are some ruthless territorial warriors in this field.Report

              • Avatar Murali in reply to James Hanley
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                says:

                You should read Gerald Gaus. He is a political philosopher that derives libertarianism from certain game theoretic underpinnings.Report

              • Avatar Patrick Cahalan in reply to James Hanley
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                says:

                There’s an old-school cadre of political scientists who are much less concerned with the “science” part than they ought to be.Report

              • Avatar Kim in reply to James Hanley
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                says:

                I think some simple, applied practice of reasonable theories might ellucidate legitimacy more than use of a dialectic method.
                But maybe that’s my scientist side showing.

                I wonder what the theoreticians make of the Arab Spring? Actually, I think you’d probably need some information theorists to extract some meaning from the forced chaotic patterns.Report

        • Avatar Damon in reply to M.A.
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          That’s why I prefer what was written.Report

          • Avatar NewDealer in reply to Damon
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            Okay unlike my European liberal friends, I still really like the Constitution.* However the problem is that some parts of the Constitution are really specific and other parts are pretty vague.

            The First Amendment is as specific as they get and we still have plenty of disagreement about it.

            The Fourth Amendment is an exercise is vagueness. It does nothing to tell us when the authors would find a search without a warrant to be reasonable or unreasonable.
            Could the Framers have predicted cell phones and the Internet, and gmail? Probably not. There is no way to determine how they would feel about searching for that kind of evidence without a time machine.

            Even Scalia admits that there were certain punishments that did not violate the 8th Amendment in 1787 but would do so today.Report

            • Avatar b-psycho in reply to NewDealer
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              The Fourth Amendment is an exercise is vagueness. It does nothing to tell us when the authors would find a search without a warrant to be reasonable or unreasonable.

              Isn’t being able to obtain a warrant* considered the most basic measure itself of reasonableness? That suggests the proper answer is “Never” if so.

              (* – though in practice there’s always risk that rather than serve as a check on the cops the process becomes a rubber stamp, thus making the warrant a meaningless formality. This draws the line of questioning of the U.S. justice system — that is, how much of its workings actually fulfills justice rather than itself reinforcing injustice — upwards rather quickly.)Report

              • Avatar NewDealer in reply to b-psycho
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                These are the normal situations when it is considered acceptable not to get a warrant before search and seizure. This is not meant to be exhaustive:

                1. When the evidence is likely to be destroyed or disappear before a warrant is obtained. A typical example is blood tests for drunk drivers who refuse a breathalyzer because by the time a warrant is obtained, the alcohol will probably have left the bloodstream. There are other examples of course.

                2. Consent by the person being searched.

                3. Emergency situations where the police are acting to prevent injury or death.

                4. Inventory searches. If someone is arrested while driving, the police are allowed to make a lawful inventory of everything in the car for record-keeping purposes.

                4. Many more.

                6. Magistrates are supposed to be neutral fact-finders. There is a whole bunch of case law about what makes a magistrate a neutral fact-finder for 4th Amendment purposes. For example, areas are not allowed to connect magistrate pay to approving warrants.Report

              • Avatar Will H. in reply to NewDealer
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                There are also penalties for entering false information on warrant applications.

                One of the cases that stands out in my mind (and it’s worth going into for all the points it touches on) had to do with a section 1983 action from the Central Division of Illinois. Perhaps part of what makes it so memorable is the gusto with which some of the judges in that division dismiss cases– it’s like they want to make the person sorry for ever showing up in court with a pleading like that.
                This had to do with a fellow from Cole County, Ill. that was accused of child molestation; his step-daughter, or someone. The claims were investigated by the State Police, and the detective determined that they were without merit. In fact, it was shown that there was someone (I forget exactly who) was coaching this child to say that this man was touching her inappropriately.
                The investigation was closed.
                All is good.
                As you may well know, that’s the time when things are most likely to turn sour.
                And they did.
                Wouldn’t you know it, but the very same thing happened again, this time with a different kid. But this time, it’s the Cole County Sheriff’s Office that investigated. The man explained to them about this previous investigation by the State Police, and is arrested and convicted of being a child molester.
                That detective from the State had retired by then.
                So, the guy sued, stating that the Sheriff had a duty to determine the results of the previous investigation by the State.

                You can figure out how things went from there.

                The courts have already shown that putting people to death is less distasteful than to admit that sometimes a state might obtain a conviction wrongfully.Report

        • Avatar Dave in reply to M.A.
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          Originalism is crystal-ball-gazing trying to derive the thought processes of dead men whose experience doesn’t remotely match the experience of modern individuals.

          That form of originalism arose in the 1980’s and was championed by people like Robert Bork and Edwin Meese. While it is still championed by some social conservatives today, original intent originalism was largely debunked by the mid-1980’s. Justice Scalia’s A Matter of Interpretation was one of the first books (if I recall) to argue an originalist standpoint from interpretation of the text. That is not crystal ball gazing at all.

          Randy Barnett’s book Restoring the Lost Constitution is a far better defense of it than Scalia’s, going so far as to separate interpretation of the text of the Constitution with what he refers to as constitutional construction. He recognizes the vague nature of the text and that the meaning in of itself can not address every legal question that comes before the court. Yes, there is subjectivity in creating rules of construction, but at the very least it is anchored to the meaning of the text. I don’t think I’m doing his work much justice since he devotes a chapter each for interpretation and construction.

          Originalism also gives us all sorts of stupid twists, such as people who take the writings of men who had nothing to do with writing the Constitution (Washington, Adams, Jefferson) and claiming that their words are “the original meaning of” a document they had no part in writing.

          First of all, please cite legal scholars that have done this. While determining original meaning does require an analysis of the history, as far as I remember, the sources used were from people that either helped to draft the document (or subsequent amendments in the case of the Civil War Amendments) or participated in the ratifcation debates (another valid source IMO). Second, please detail these stupid twists. You criticize originalist for arguing from authority yet your statement here is doing just that.

          Speaking of stupid twists, setting aside my utter disdain for intellectually lazy living constitutionalists that either scream “general welfare” every chance they get or have absolutely no clue that the Supreme Court decided cases pertaining to constitutional law before the Warren Court (or 1937), would you consider President Bush’s post-9/11 theory of executive power a “stupid twist” based on what the text of the Constitution says or do you think the administration’s views of its power were motivated by changing circumstances (i.e. the threat of terrorism). Originalism is not the only theory of interpretation to provide “stupid twists”.

          Originalism is a trap, not a valid philosophy of constitutional interpretation. It consists of one ploy and one ploy only, the fallacious argumentum ad verecundiam

          Only according to you and the hordes of lazy liberals I have no interest in debating for the reasons I mentioned above. Justice Scalia’s book is one of the most widely cited legal texts in law journal articles. It may not make him right, but the content in that book is VERY well respected, as it should be (I’m no fan of Scalia either). Barnett’s work is well-respected in all legal circles as well even though his work is something that will give both liberals and conservatives fits (his justification of Lawrence v Texas on originalist grounds is one of my favorite reads)

          Jack Balkin attempting to justify his Progressive view of the Constitution on originalist grounds. I don’t agree with his analysis but I’m very impressed with it.

          If you want to beat on a theory of originalism that was beaten in the ground (and rightly so) almost 30 years ago, go right head, but given where the study of originalism has gone since the days of Robert Bork, your last paragraph tells me you aren’t up to speed.Report

          • Avatar Murali in reply to Dave
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            If we wanted a method of interpretation that provided continuity with current law and ensured uniformity in future applications, I would not choose originalism Scalia’s version or otherwise, at least, not as the primary mode of interpretation.Report

            • Avatar Dave in reply to Murali
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              If we wanted a method of interpretation that provided continuity with current law and ensured uniformity in future applications, I would not choose originalism Scalia’s version or otherwise, at least, not as the primary mode of interpretation.

              What’s your idea of the best version?Report

              • Avatar Murali in reply to Dave
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                Most recent legal meaning. i.e. what was the meaning of a legal term in the latest similar case where the term was used. The hard problem when using this method is if there have been multiple different recent uses of the term as regards the application of the law in question in other court decisions. Where there is real difficulty in choosing between meanings, even after excluding the oldest and most dissimilar cases, choose the use of the word that most matches our use of the word in our natural language. If the law is very new, then use the current settled legal meaning of the words as the terms would have been written in legalese and not plain english.Report

          • Avatar Michael Drew in reply to Dave
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            “the study of originalism” is misleading. Originalism is an agenda for study of (really, advocacy around) constitutional meaning. “The study of Originalism” will someday be the province of intellectual and legal historians. Originalism is a phenomenon to be studied only in that sense. In the sense you mean, it’s a framework for deciding how to interpret and apply law. It’s an agenda. The phrase “the study of originalism” suggests a distance from the whole enterprise that I don’t believe you even mean to suggest that the people doing the “studies” you are talking about have. You don’t mean it, but I think you are aware of the objectivity suggested in the phrase. The phrase I think you should have use would have been, “given where the school of constitutional interpretation that calls itself originalism has gone….”Report

            • Avatar Michael Drew in reply to Michael Drew
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              That’s a small point, of course, though. Your comment is well-taken. It does seem like your critique of others for treating originalism without due rigor puts you in a bad position to declare Balkin’s take to be, essentially, wrong (unless of course you’re completely taking off the table any claim that what you do think is right is actually right). Not that I’m not sure you don’t have your arguments. Still – that’s what you do here.

              Also, just a word for the preamble. One obviously can’t ignore what’s set out in the body. But, since it’s plainly a straightforward statement of the intended purpose of the document that was seen and accepted by signers and ratifiers alike, it therefore can’t be ignored as one source of guidance on methods for interpreting and applying the law given in the body of the document, can it? Not to suggest you are saying it can be, and obviously what that guidance is can be debated, but just to confirm that?Report

              • Avatar Dave in reply to Michael Drew
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                It does seem like your critique of others for treating originalism without due rigor puts you in a bad position to declare Balkin’s take to be, essentially, wrong (unless of course you’re completely taking off the table any claim that what you do think is right is actually right). Not that I’m not sure you don’t have your arguments. Still – that’s what you do here.

                I acknowledge that I made a statement that I did not fully defend, but I also acknowledged, albeit indirectly, that I was familiar with Balkin’s work (I complimented him). That puts me in a better position than people that continue to associate originalism with the intentions of dead white men.

                Maybe my own perspective is a bit biased because I took a huge interest in constitutional law several years ago and read up on the subject. If I was someone that had an interest in politics and my only exposure to conlaw was reading the rantings of social conservatives talking about culture wars, Christian nation and the intent of the Framers, maybe I would see originalism in that light. Perhaps my expectations are unreasonable. You tell me.Report

              • Avatar Michael Drew in reply to Dave
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                Well, wait. Certainly for the most part originalism – at least original public meaning originalism – is mostly about the intentions, or at least understandings of dead men, and only a certain limited number of not white. Is that not right?

                Certainly being informed is better than being uninformed. But it’s not much better to claim someone is wrong without thinking you have to show it than it is to do so without having any good argument about it. And I don’t really trust that you’d be better disposed toward more knowledgeable critics of originalism given the way you talk about other approaches. Your writing strongly suggests you think a similar kind of ignorance about the doctrine must lie behind any kind of resistance to this mode of interpretation from a reasonably intelligent person. That’s maybe partly my bias, but the attitude is plainly there in the comment as well.Report

              • Avatar Dave in reply to Michael Drew
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                Original meaning focuses on the meaning of the text as it was understood at the time of enactment. Original intent seeks to determine what the language was meant to accomplish and thereby apply that to cases and controversies (was it the intent of the framers of the 14th amendment to protect a right to privacy?). The latter attempts to apply legal rules based on the subjective intentions of dead white men that couldn’t even begin to conceive the myriad of legal questions faced today. The former requires respect to the text, but allows enough discretion for judges to create legal rules that apply to specific cases so long as those legal rules reconcile to the text (there is no way to avoid some element of discretion in judging).

                Certainly being informed is better than being uninformed. But it’s not much better to claim someone is wrong without thinking you have to show it than it is to do so without having any good argument about it.

                Interesting. Three years ago, when I was still a blogger here, I posted this:

                https://ordinary-times.com/blog/2009/09/general-welfare/

                This was a response to a particularly obnoxious article. I didn’t mind the fact that conservatives were being called on the carpet for their Tenth Amendment flag waving. Like any opportunistic politician, embracing the Constitution happens when it’s politically convenient (notice no one waved the Tenth Amendment flag when President Bush was in office and big government conservatism was all the rage).

                There were numerous problems with Millheiser’s article, but you saw a problem with mine (you were the last commenter). You said:

                But you don’t take a position of your own per se on those theories separately from your attacks on Milhiser’s methods. It leaves us fluttering in the breeze as to what we, per you, ought to think of these questions on the merits.

                I find that comment interesting. Where Millheiser was trying to justify an expanded meaning of the General Welfare Clause based on a Hamiltonian view (ok, he cheated a bit since he gravitated towards the “bad things happen when original meaning is applied”, a results based approach, I not only disagreed but hit several key points. I’ll summarize them.

                1. Whereas Millheiser simply took the disagreement between Madison and Hamilton as a means of justifying the Hamiltonian view on the basis that disagreement meant a lack of consensus, I suggested that the historical record does in fact show a consensus. I consulted legal scholarship and provided the links.

                2. I then reinforced the Madisonian view by referring to the Supreme Court’s pre-1937 New Deal jurisprudence, one where there were bright lines between the role of the federal government and the role of the states. The “radical” Tenth Amendment was cited in several cases (i.e. Hammer v Dagenhart – which invalidated federal child labor laws on federalism grounds (labor does not equal commerce)) . There were tensions of course but the Court’s jurisprudence was very clear up until the mid-1930’s. Why it changed is something I’ll address momentarily.

                3. Even after looking at history, I consult the text of the Article I, invoke rules of constitutional construction and argue that a wide-open General Welfare clause in light of having specific and enumerated powers following it makes everything written thereafter surplus text (dead letter). To your comment about whether or not “we should accept the nouveau-conservative broad legal theories of the 9th and 10th Amendments”, what the Tenth Amendment does is call into account an open-ended General Welfare Clause as well because it refers specifically to “powers delegated to the United States by the Constitution”. Whether you choose to accept that or not is your choice, but I believe that the pre-New Deal jurisprudence establishes all of this.

                That was half the reason that I found his attacks pure unadulterated shit. The other part was because of his selective reading of history. It’s intellectually lazy to call the “conservative” wing of the Supreme Court during the New Deal era Tenthers and to talk about court packing (which wasn’t popular by the way) and the populist backlash against the court. In a way, it diminishes the work that Progressive legal activists, scholars and judges did in order to effect a shift in constitutional doctrine that took decades to accomplish both with respect to federalism and the police power of the states. This goes back to the late 1800’s.

                http://www.amazon.com/Rethinking-New-Deal-Court-Constitutional/dp/0195120434/ref=sr_1_1?ie=UTF8&qid=1359752166&sr=8-1&keywords=rethinking+the+new+deal+court

                http://www.amazon.com/Constitution-Besieged-Demise-Lochner-Jurisprudence/dp/0822316420/ref=sr_1_1?s=books&ie=UTF8&qid=1359752444&sr=1-1&keywords=the+constitution+besieged

                Millheiser is living in the land of fairy tales if he thinks none of these efforts mattered. For that, he deserves to be mocked. In fact, as I said in the blog post, I would have ignored him had he not attempted to justify his interpretation of the General Welfare Clause on textual grounds.

                You wanted me to come clean so clean I am. You also may want to consider this as a reason to be skeptical about using the broad language of the Preamble to settle constitutional questions.

                I’ve never read that specific Breyer book, but I’ve read Active Liberty. I don’t recall all of his objections to originalism being accurate (some were and valid too), but it really doesn’t matter because his resistance to more formalistic methods of interpreting the Constitution are based on his belief that the legitimacy of our Constitution rests upon the active participation of the citizenry in a democratic process (if I recall). John Hart Ely made similar arguments in Democracy and Distrust. It’s very non-textual in nature, but it’s not an invalid theory if one believes that judicial review and constituitonal interpretation should reinforce our democracy.

                And I don’t really trust that you’d be better disposed toward more knowledgeable critics of originalism given the way you talk about other approaches.

                You don’t have to trust me, but do know that I have been known to be a little less ornery in my writing on these matters. Although this was written in 2008 and I’m a bit rusty on the subject, I hope it sheds some light.

                http://publiusendures.blogspot.com/2008/08/defending-originalism-long.html

                Your writing strongly suggests you think a similar kind of ignorance about the doctrine must lie behind any kind of resistance to this mode of interpretation from a reasonably intelligent person. That’s maybe partly my bias, but the attitude is plainly there in the comment as well.

                It’s a reasonable bias based on your observations of me as well as the fact that I hadn’t shown many of my cards. I have more if I need them, but I thought this would be good enough for this discussion.Report

              • Avatar Jaybird in reply to Dave
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                Holy crap, do I miss Dave.Report

              • Avatar Michael Drew in reply to Dave
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                says:

                The relevance of that three-year-old conversation is going way over my head right now, I’m sorry…Report

              • Avatar Michael Drew in reply to Dave
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                says:

                …Maybe this was meant as a response to my response to you on the Preamble, rather than to the comment it was a response to?

                In any case, I have certainly not claimed that any constitutional questions can be “settled” by using the Preamble.Report

              • Avatar Michael Drew in reply to Michael Drew
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                says:

                Original meaning focuses on the meaning of the text as it was understood at the time of enactment. Original intent seeks to determine what the language was meant to accomplish and thereby apply that to cases and controversies (was it the intent of the framers of the 14th amendment to protect a right to privacy?). The latter attempts to apply legal rules based on the subjective intentions of dead white men that couldn’t even begin to conceive the myriad of legal questions faced today. The former requires respect to the text, but allows enough discretion for judges to create legal rules that apply to specific cases so long as those legal rules reconcile to the text (there is no way to avoid some element of discretion in judging).

                How does this address whether original public meaning originalism is rightly or wrongly associated with the understandings of dead, very disproportionately white men? It is rightly associated with them. That’s what it says on its face.

                And I mean, no, it doesn’t require “respect to the text.” It requires the law to be applied according to the meaning it was understood by the people it goverened at the time it was adopted. “Respect to the text”; even, “respect to the correct meaning of the text” is just a statement of the question that original public meaning originalism proposes to answer: what does the text mean? And then, by all means, there is the task of applying it to facts not anticipated by the relevant original understanders, in the course of which, absolutely, judicial discretion comes in. But that doesn’t change anything that came before that in this paragraph, which means the the discretion only comes in the service of applying a meaning of this text that is constructed purely from an account of what the relevant original understanders understood the text to mean. And in 1789, the relevant original understand were very disproportionately white men who are now dead, and even in 1868 they were still quite disproportionately white men who are now dead.Report

              • Avatar Michael Drew in reply to Michael Drew
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                says:

                …Or are we just taking for granted that the ratification discussion and votes of all the white men who opined on the document when it was adopted also accurately represented the views of all the women and blacks who had no vote and little voice that comes down through the record on the question? That if those groups had understood themselves as makers of this meaning and had the means to influence its contents through equal representation, that the original public meaning of this document, if not the very words in it, would have been substantially the same as it was in the true history?Report

              • Avatar Michael Drew in reply to Michael Drew
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                says:

                discretion only comes in the service of applying a meaning of this text that is constructed purely from an account of what the relevant original understanders understood the text to mean.

                ..or, per your below helpful comment, applying a meaning that is ascertained purely from those understandings…

                That still makes it entirely right to assert a strong association between original public meaning originalism and the understandings of dead very disproportionately white very disproportionately male people.

                I’m not sure how, or even if, really, you’re proposing to deny this is right. If it’s because you used the word “intent” rather than “understanding,” well, that was your word. Do we agree on the above, then?Report

              • Avatar Michael Drew in reply to Michael Drew
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                says:

                The former requires respect to the text, but allows enough discretion for judges to create legal rules that apply to specific cases so long as those legal rules reconcile to the text (there is no way to avoid some element of discretion in judging).

                A bit more precisely: It (original public meaning originalism) requires the law as given by the meaning of the text as understood at the time of adoption to be fully applied (not just respected) up until the point where the meaning runs out, after which it (original public meaning originalism) is silent on constructing further meaning so long as said constructions are not inconsistent with those original meanings.

                http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2021318Report

              • Avatar Michael Drew in reply to Michael Drew
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                says:

                …So anyway. Reviewing, it seems that I initially missed that your sense of superiority (“That puts me in a better position than people that continue to associate originalism with the intentions of dead white men.”) to others who give inadequate or no arguments for claims like you did (though I acknowledged from the outset that I thought you *had* the arguments, and just said that not giving them didn’t jibe with your emphasis on a standard of rigor) — relates to some people somewhere currently making the assertion that original public meaning originalism relates to *intentions of lawmakers (or constitution drafters or their associates) for the application of said law* as distinct from simply being a method for determining what the public meaning of the language in the laws was at the time of enactment. I took you to be objecting at least as much to the “dead white men” part of your phrase. I would suggest that it needs to be confirmed that those to whom you refer mean to advance that particular meaning of “the intentions of dead white men” (if indeed that is a real quote). Meaning I think it needs to be confirmed that they mean to claim that the problem with originalism is that it relies on these dead white men’s *intentions about how the laws should be applied or what effect they were meant to have*, rather than that their objection is that it relies just on the mental states of *dead*, *disproportionately white*, *disproportionately male* people – whether those be their intentions or any other aspect of their thought whose transmittal will ultimately depend on the use of language that to one degree or another is embedded in a particular time, and in this case, particular social realm.

                So, to go back to the portion of the initial comment to which you responded that you quoted, the claim was, “Originalism is crystal-ball-gazing trying to derive the thought processes of dead men whose experience doesn’t remotely match the experience of modern individuals.” My emphasis. Can it be denied that semantic meaning resides in thought process? Now yes, the crystal-ball gazing charge is certainly is a facial attack on Barnett’s thesis that the question of historical semantic meaning is an empirical question that can be discovered through evidence. But that isn’t the question at hand. The question at hand is that original public meaning originalism does require us to inquire into the the thought processes of the people who sought to understand the meaning of the document that was at hand, proposed as the founding charter of the country. The mistake there is that crystal-ball gazing is the only method available with which to pursue that inquiry. There’s no charge there that originalism holds that the intentions of the framers for application of this law are the relevant subject-matter to use to determine how to apply it.

                It is all the more interesting, then, that you chose to refer to “the study of originalism.” It will always be the case that there were in the history of the legal academy those who who did advance an original intent originalism. There’s actually nothing wrong, so far as I can see, with continuing to associate originalism with ideas about the intentions of lawmakers for law’s applications, when that intellectual history will always be on the record, and especially when, as Brandon in this thread shows, (less sophisticated) advocates of originalism continue to advance just that view as the essential current stuff of the doctrine — so long as one does not assert that this is what the most sophisticated originalists in the legal academy currently subscribe to.

                But certainly, I never intended to suggest you are in a bad position *with respect to anyone else in particular* to give your views – only that if your particular emphasis is to deal with these questions with all due rigor, it seemed that off-hand rejections of others’ work like you issued to Balkin’s doesn’t fit with that standard of yours – no matter how much better placed you are to talk about originalism than just some other person. I don’t really understand how it was ever relevant that you’re in a better place to do that than someone else you can pick out of a hat who has made a mistake about the current state of the originalist approach to constitutional interpretationReport

              • Avatar Michael Drew in reply to Michael Drew
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                says:

                …And sorry for all the separate responses. This is obviously an iterative process for me and a subject about which I am still learning.Report

              • Avatar Michael Drew in reply to Michael Drew
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                says:

                …I may be wrong about Brendon’s view; he seems to argue that framers’ intentions do matter, but doesn’t connect that view to originalism.Report

              • Avatar Dave in reply to Michael Drew
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                says:

                Regarding the Preamble, it’s a statement of purpose as you mention as well as a source, but it’s hard for me to see where that would specifically apply in cases where specific clauses are at issue, especially when I view each article as a mean of carrying out that purpose. If you have an example, I’d be interested in hearing it.Report

              • Avatar Michael Drew in reply to Dave
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                says:

                Not specific ones, because my claim is that it suggests that the document was meant to be interpreted generally in a way consistent with the purposes it sets forth. That could of course mean different things, but in my view the language strongly suggests that that would be the idea that the Constitution was meant to broadly “work” toward the ends that are set out there, broadly and democratically defined. (If that citation allows me to remain a legitimate interlocutor for you on these questions.) That’s just one view, though.Report

              • Avatar James Hanley in reply to Michael Drew
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                says:

                Is “the general welfare” necessarily primarily economic in meaning?Report

              • Avatar Brandon Berg in reply to James Hanley
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                says:

                I’ve pointed this out here before, but the idea that the phrase “general welfare” language in the tax and spending clause was meant to endow Congress with broad powers was not merely repudiated but ridiculed in Federalist 41.

                This passage is 41 is important not so much for what it reveals about Madison’s thoughts on the issue, but because of what it reveals about the conflict between the two major factions at the time. The Federalists, like Madison here, supported the Consitution and interpreted it as giving Congress limited powers. The Antifederalists opposed the Constitution either because they didn’t want to give Congress even that much power, or because they were worried that the Constitution did not spell out the limits on Congress’s power explicitly enough, and that it might one day be interpreted as giving Congress more power than was intended.

                Madison was addressing the latter concern, arguing that it would be ridiculous to interpret the phrase “general welfare” as giving Congress powers beyond those specifically enumerated.

                It’s important to note that there was no significant hyperfederalist faction—one which said that the clause should be interpreted as giving Congress the broad powers it exercises today, and that that this would be a good thing.

                The claim that the phrase “general welfare” was intended to be interpreted this way is based in sheer ignorance. There are issues on which reasonable and informed people can disagree, but this is not one of them.Report

              • Avatar Sam in reply to James Hanley
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                says:

                I remain baffled that anybody cares what people 300 years ago thought when talking about the complex American society that exists today, especially one that at best had an “Eh, whatever…” attitude when it came to owning other human beings.

                To point at those individuals and say, “They’re the men whose thoughts we should value MOST!” explains so much of what plagues this nation.Report

              • Avatar Brandon Berg in reply to James Hanley
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                says:

                Because if Congress can ignore one part of the Constitution, it can ignore any part of it. As I said elsewhere, without originalism, we have no written Constitution.Report

              • Avatar Sam in reply to James Hanley
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                says:

                American history is built upon Congress ignoring the Constitution.Report

              • Avatar Brandon Berg in reply to James Hanley
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                says:

                I mean, I get that you want to toss out the Constitution, because the Constitution doesn’t allow Congress to do the things you want it to do. But I don’t want it to do those things, so I’m happy to stick with the Constitution as written.Report

              • Avatar Sam in reply to James Hanley
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                says:

                As they say, “To the straight, white, older, conservative, male victor generally go the American spoils.”Report

              • Avatar Stillwater in reply to James Hanley
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                says:

                But I don’t want it to do those things, so I’m happy to stick with the Constitution as written.

                Then why not provide an independent and contemporary argument for your views instead of citing words written 250 years ago to justify em?Report

              • Avatar Stillwater in reply to James Hanley
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                says:

                And that leads to the biggest problem I have with originalism. If the arguments are so compelling, and devastating, and self-evident, why don’t they hold sway when phrased on contemporary language addressing contemporary problems?

                It just seems like a cheap and disingenuous short-cut to appeal to selected writings from the Founders to argue for a definitive view of current policy.Report

              • Avatar Glyph in reply to James Hanley
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                says:

                Sam, if it helps, think of it this way.

                The “source code” for this nation, a fairly successful nation by many many measures to say the least, was set up by some fairly smart men after a lot of debate, and was designed to avoid certain pitfalls that they had seen occur historically.

                We are now quite some distance from those men and that time, and dealing with things that they could not have foreseen, it is true. And undoubtedly they got some things wrong to begin with, because they were human, and subject to the failings of their time, and universal human failings.

                And, the intervening years have seen much new additional “code” overlaid on top of the source code.

                But just as you don’t go in and monkey with the source code lightly – no matter how archaic or inadequate it may appear to you – if you want your computer to keep working, you should also exercise extreme caution here.

                You don’t want to cavalierly pull out the wrong Jenga block, way down at the base, basically.

                Not even because the original coders were white slave-owners, 300 years ago.Report

              • Avatar Kazzy in reply to James Hanley
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                says:

                “I remain baffled that anybody cares what people 300 years ago thought when talking about the complex American society that exists today, especially one that at best had an “Eh, whatever…” attitude when it came to owning other human beings.”

                Some people wonder what the Founding Farmers would say if they saw America today. Personally, I think they’d say, “HOLY FUCKING SHIT!!! AIRPLANES!!!!!!”Report

              • Avatar Jaybird in reply to James Hanley
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                says:

                If we want to get rid of the separation of church and state, all we have to do is have congress pass a law.

                Do you not like democracy? Is that your problem?Report

              • Avatar Jaybird in reply to James Hanley
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                says:

                Personally, I think they’d say, “HOLY FUCKING SHIT!!! AIRPLANES!!!!!!”

                No. The Fathers are The Fathers because they’d say “you could use those to drop things on the British.”Report

              • Avatar Sam in reply to James Hanley
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                says:

                Glyph,

                You are correct. The slaves they owned weren’t white.

                And I recognize not monkeying with the source code. But understanding it within a contemporary context isn’t the same as monkeying with it, at least to my mind. Insisting that we continue to try to figure out what people 300 years ago believed – people who looked oddly like those who have continued to reap the vast reward of the system they set up – is what gets me. We live in a different world. There’s nothing wrong with taking their words and applying them to that different world, not demanding that our different world fit within their words.Report

              • Avatar Brandon Berg in reply to James Hanley
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                says:

                Because by and large, persuasion doesn’t work. Most people’s political opinions are driven by emotion and prejudice, not by the strength of the arguments presented for one view or another. The idea that an idea will be popularly accepted just because it’s correct is incredibly naive.Report

              • Avatar Jaybird in reply to James Hanley
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                says:

                Sam, did they leave behind a system to *CHANGE* the Constitution?

                Why not use *THAT*?Report

              • Avatar Sam in reply to James Hanley
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                says:

                Because that system doesn’t work worth a goddamn? Because that system is biased hugely toward rural states with let’s-politely-say regressive attitudes toward larger, more liberal states? Because that system routinely requires asking the legitimately aggrieved to wait generations for proper adjudication of their entirely reasonable complaints?Report

              • Avatar Jaybird in reply to James Hanley
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                says:

                Should the stupid shit-kicking hillbillies have access to the same mechanisms to address their own “entirely reasonable complaints” (by their lights, anyway, stupid hillbillies) to change things as you and yours?Report

              • Avatar Sam in reply to James Hanley
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                says:

                I’m not sure where “shit kicking hillbillies” came from. It certainly WASN’T from me.Report

              • Avatar Stillwater in reply to James Hanley
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                says:

                Should the stupid shit-kicking hillbillies have access to the same mechanisms to address their own “entirely reasonable complaints” (by their lights, anyway, stupid hillbillies) to change things as you and yours?

                Weren’t you just ridiculing “Demoncracy” just about, oh, like three comments ago?Report

              • Avatar Jaybird in reply to James Hanley
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                says:

                As a fan of the whole “negative rights” thing that it seems that the Fathers set up, I’d like to think that it’s possible to hold both “democracy” as something that is to be held at arm’s length at the same time as something worth listening to when there is, oh, 3/4ths majority saying something.

                If you can get 3/4ths of the states to modify the Constitution, I think you should go ahead and do that.

                If, however, you just think that you have a really good idea that 50%+1 of the people think we should do at this moment in time? I’d ask you if you want to use those rules for stuff that you, personally, don’t find fashionable this month. If you don’t? I’d suggest that maybe we shouldn’t change how we do things quite yet.Report

              • Avatar Sam in reply to James Hanley
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                says:

                I guess I just struggle to believe that a coalition of Wyoming (576,412), North Dakota (699,628), Alaska (731,449), South Dakota (833,354), Montana (1,005,141), Idaho (1,595,728), West Virginia (1,855,413), Nebraska (1,855,525) Utah (2,855,287), Kansas (2,885,905), Arkansas (2,959,131), Mississippi (2,284,926), and Oklahoma (3,814,820) – or roughly 26,000,000 Americans – should be given such an incredible degree of control over the other 275,000,000 Americans out there. Maybe the system isn’t working when that’s enough to end discussion about a Constitutional Amendment.

                But of course, if you’re on the side that tends to think things are just fine right now? I can understand its appeal completely.Report

              • Avatar Jaybird in reply to James Hanley
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                says:

                I suppose the townies are stupid enough that we can wave away the idea that we should even fucking try…

                But why not fucking *TRY*?

                When was the last time we had a Constitutional Convention?

                Ain’t it around time to have another? Hey, maybe if the shit-kicking hillbillies obstruct something that is *OBVIOUSLY* the will of the people, we could finally get rid of the stupid Constitution once and for all!

                Whadya say?Report

              • Avatar Sam Wilkinson in reply to James Hanley
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                says:

                Jaybird,

                I say that I’m out on this conversation, at least for tonight. I like getting sworn at as much as the next writer here but I think I’ll pass on this current back-and-forth.Report

              • Avatar Jaybird in reply to James Hanley
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                says:

                I wasn’t swearing at *YOU*, Sam! I was swearing at the roughly 26,000,000 Americans who were trying to obstruct the obviously good and righteous changes you wanted to enact.Report

              • Avatar Dave in reply to James Hanley
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                says:

                I remain baffled that anybody cares what people 300 years ago thought when talking about the complex American society that exists today, especially one that at best had an “Eh, whatever…” attitude when it came to owning other human beings.

                To point at those individuals and say, “They’re the men whose thoughts we should value MOST!” explains so much of what plagues this nation.

                I’ve already explained this but I’ll reiterate. First, the only thing that I need to concern myself with from the Founders are the meanings of the words. What did “Necessary and Proper” mean? What did “rights retained by the people” mean? That is an inquiry into history.

                Again, in no way shape or form do I advocate that we take the intentions of the Founders and apply them to modern legal cases. Such an exercise is not only impossible but it falls victim to the same sort of subjectivity that it claims to prevent. This is why original intent originalism as a theory of interpretation died out in the mid 1980’s (at least within most legal circles).

                It seems that there is a lot of confusion here between interpretation (i.e. ascertaining meaning) and construction (crafting legal rules consistent with the meaning). They get conflated often. I’ll post this and hopefully you’ll benefit from it.

                http://www.volokh.com/2011/06/23/interpretation-vs-construction-2/Report

              • Avatar Murali in reply to James Hanley
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                says:

                @Glyph

                We are now quite some distance from those men and that time, and dealing with things that they could not have foreseen, it is true. And undoubtedly they got some things wrong to begin with, because they were human, and subject to the failings of their time, and universal human failings.

                And, the intervening years have seen much new additional “code” overlaid on top of the source code.

                But just as you don’t go in and monkey with the source code lightly – no matter how archaic or inadequate it may appear to you – if you want your computer to keep working, you should also exercise extreme caution here.

                You don’t want to cavalierly pull out the wrong Jenga block, way down at the base, basically.

                Not even because the original coders were white slave-owners, 300 years ago.

                The problem is, original meaning as constitutional interpretation is decidedly not the interpretive method being used. Rather, being originalist is like reverting each part of your code to its earliest version while completely ignoring any issue of compatibility between the earliest versions of subsequently installed modules and the earliest version of the base OS. The problem crops up because many of the later installed modules were crafted with then contemporary versions of the base OS.

                Caution requires you to not suddenly revert everything to version 1 even though the various version 1s were not contemporaneous. Rather, it requires you to stick with what you have and from the current point onwards adopt an interpretive method that preserves as much of the effective content of the status quo as possible.Report

              • Avatar Michael Drew in reply to James Hanley
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                says:

                Is “the general welfare” necessarily primarily economic in meaning?

                By no means. Is there a reason you ask that?Report

              • Avatar Michael Drew in reply to James Hanley
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                says:

                To be clear re: Brandon’s point that the language of the Preamble was not meant by particular personal Framers to be interpreted to expand the powers listen in the Constitution, that is definitely not my claim. My claim is just that the language itself reads (not necessarily from an originalist standpoint – just as direct language that we too can read and interpret) as a statement of purpose for the document, which to me suggests that the purpose of the Preamble was to suggest a set of aims that it was hoped the Constitution would achieve.

                I simply feel as an American, that this kind of broad statement of purpose for the document gives me the license I need to use an interpretive method, so long as it doesn’t do violence to any particular provision in the body of the document, to interpret meaning of the Constitution in such a way as it allows the Constitution to serve the ends stated. I feel it gives me that license because engaging questions of interpretation, and significantly, giving construction to the effect of the document, given the overall simplicity and brevity, and frequently, vagueness of the text, are absolutely unavoidable and necessary if the document is to shape American law and American life in such a way as to possibly be able achieve the aims set out in the Preamble.Report

              • Avatar Glyph in reply to James Hanley
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                says:

                Murali – agreed, and the argument we have here is much like when, faced with any system problem, we must decide whether it is better to “patch” (keep versioning forward) or to “revert” (remove more recent code which is conflicting with/supplanting with the older code.)

                As always, the answer is “it depends”, when we are trying to decide which solution is more “radical” and beneficial.

                I have definitely seen situations in my job, when the root cause analysis is done, that amount to “despite what you thought that component meant or did, or what you wanted it to mean or do, that’s not what it originally meant or was intended to do. Since the system was never intended to do what you tried to make it do, the system choked.”

                So at the risk of stretching this metaphor past breaking, I absolutely think it is very important to try to understand what the “objects” and “definitions” in the “source code” were, and were intended to accomplish, at the time they were originally implemented.

                Because otherwise, when you decide to apply your own definitions, you risk doing something the system was never intended/designed to do; and whenever you do that, there is a 50/50 chance – you may discover a whole new and better way to use the system, far beyond its original intent; or, you may crash the whole thing to the ground.

                In Sam’s original comment to which I was responding:

                I remain baffled that anybody cares what people 300 years ago thought when talking about the complex American society that exists today, especially one that at best had an “Eh, whatever…” attitude when it came to owning other human beings.

                To point at those individuals and say, “They’re the men whose thoughts we should value MOST!” explains so much of what plagues this nation.

                ….I hear an argument which seems to amount to “who knows/cares what they meant, or intended? They were OLD. And WHITE. And IMPERFECT. And trying understand them, and making changes, TAKES TOO LONG.”

                I take it Sam’s real argument (and yours) is more nuanced than this; but this type of comment, whenever I see it (and I seem to see a version of it frequently) strikes me as a really simplistic, and frankly (no offense intended to Sam, and I am aware that he is using a kind of shorthand, I know it’s just a comment) sort of adolescent “argument”.

                What people often see as a deference to “authority” or “tradition” is, at least in my case, not a deference to those things or to the people that represent them (anyone who knows me in IRL can tell you I have severe problems with both); rather, it is a deference or respect for “reasonably successfully-working system”.

                And respect for that, means giving serious consideration to the designer’s original intent and definitions, so as not to inadvertently overstep too far the system’s capabilities. The American system has been remarkably successful, resilient and long-lived, for all its flaws and failings.Report

              • Avatar Brandon Berg in reply to Michael Drew
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                says:

                To be clear re: Brandon’s point that the language of the Preamble was not meant by particular personal Framers to be interpreted to expand the powers listen in the Constitution, that is definitely not my claim.

                Oh, sorry. I was actually talking about the other general welfare, in Article I, Section 9.Report

              • Avatar James Hanley in reply to Brandon Berg
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                says:

                I think you mean section 8. If there was one in section 9 it would presumably mean Congress was prohibited from promoting the general welfare. 😉Report

              • Avatar MikeSchilling in reply to Brandon Berg
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                says:

                De jure as well as de facto.Report

            • Avatar Dave in reply to Michael Drew
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              says:

              Originalism is an agenda for study of (really, advocacy around) constitutional meaning.

              As a normative defense of constitutional interpretation based upon a commitment to sticking to something that is in writing, I would like to think that it’s more than just an agenda.

              Originalism is a phenomenon to be studied only in that sense.

              Not exactly. While no one is suggesting that we roll back to the pre-New Deal decisions of 1937, claims and arguments can still be made on originalist grounds without necessarily threatening the status quo. The opponents of the PPACA were very careful about this when they made their Commerce Clause arguments. There were elements of originalism in both the majority opinion and dissent in the DC gun ban case.

              Barnett argued in his book that both Lawrence v Texas and Romer v Evans can be justified on originalist grounds (if that’s the case, take it to the next step with a case like the Prop 8 case). Given where constitutional doctrine is today, as crazy screwed up as it is, my best hope for originalist defenses is to protect against government intrusions against those rights not specifically enumerated in the Constitution and not those deemed either “fundamental” or “deep-rooted in our nation’s history and tradition”. The two-tiered system of rights that came about during the New Deal era and was laid out in a footnote in U.S. v Carolene Products is as obnoxious as it gets.

              The phrase “the study of originalism” suggests a distance from the whole enterprise that I don’t believe you even mean to suggest that the people doing the “studies” you are talking about have. You don’t mean it, but I think you are aware of the objectivity suggested in the phrase. The phrase I think you should have use would have been, “given where the school of constitutional interpretation that calls itself originalism has gone….”

              My apologies. I did rush through this and didn’t review it as thoroughly as I would have like to.Report

              • Avatar Michael Drew in reply to Dave
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                says:

                Hmm. Mostly I think you’ve missed my points. I would say that being committed to a particular defense of a particular proposition is almost exactly a definition of the term agenda as I meant it. The point is that it’s not an object being studied objectively, like physical relations between objects, or, in this case, the meaning and resulting correct application of the Constitution. Originalism is to the latter as Newtonian dynamics is to the latter, more or less (not substantively but formally speaking).

                So when I say “Originalism is a phenomenon to be studied only in that sense,” I just mean that one studies Originalism is a historicist sense. So yes, there were originalism at work before the modern movement was launched, and when we look at what people (Hugo Black?) who advanced it as an interpretive agenda did back then analytically, then we are studying it. But when we advance it today ourselves, we’re, I don’t know, practising, or applying, or advancing it. Our agenda of think that’s a good thing to do may have come from our studies of originalism that happened in the past – or just from direct study of history and the law. But that’s not, mostly, what you were referring to when you were referring to where originalism has gone in recent years. You’re referring to the current state of the set of agendas (and I should have made it plural) for correctly applying constitutional (and other) law that are or claim to be originalist.

                Here is a link to some people talking about both their studies of orginalism(s), and their particular vision of the right way to conceive of originalism as an interpretive agenda. They don’t lay down precisely the distinction in wrods the way I am doing here, but the two activities are clearly distinct – at some times they are talking about foregoing ideas about correct interpretative agendas, and they quite distinctly describe their own agendas. The one is the study; the other the advancement, of originalism:

                http://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/RESPONSEANDCOLLOQUY.pdfReport

              • Avatar Dave in reply to Michael Drew
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                says:

                I think I understand this better if I look at the word “agenda” in a more neutral and less negative light. This makes sense to me, and I agree with it for the most part. I’ll read the link when I get a chance. Thank you for that.Report

              • Avatar Michael Drew in reply to Michael Drew
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                says:

                Thanks for the exchange.Report

      • Avatar Patrick Cahalan in reply to Brandon Berg
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        says:

        Without originalism, we don’t have a written Constitution. We just have nine dictators-for-life calling the shots arbitrarily.

        I think there might be something in the middle, there.Report

  3. Avatar Johannes
    Ignored
    says:

    Forgive me, but original ism is all too often a tool to allow the judge to erase the constitutional text in favor of a more convenient outcome. So, for example, in Heler and McDonald v. City of Chicago, the “well regulated militia”language is effectively stripped of all meaning,just like ur-originality Robert Bork derided the Ninth Amendment as an “ink blot.” When text=0,ur
    doin it wrong.

    Scalia’s backing off Raich in the ACA case, and his opinion in Citizens United is unbearably hackish, and his paean of praise to corporate money in the latter case downright embarrassing. To be fair,he seems to believe in the SixthAmendment, and his dissents there have been an example of standing up for a right that has few adherents on the bench.Report

  4. Avatar Johannes
    Ignored
    says:

    Sorry about the typos; the autocorrect on the iPad is persistent, and unhelpful. Heller. Originalism. Sigh.Report

  5. Avatar Damon
    Ignored
    says:

    I started realizing what a tool Scalia was when Radly started his “new professionalism” commentary.

    Of course, he’s a hack, like all the others….Report

  6. Avatar Sam
    Ignored
    says:

    Obviously, there are a lot of smart people in this thread, myself excluded, but my general thought about Scalia’s originalism works like this:

    If you were playing basketball with him and nailed a three, he’d scream, “No! Basketball’s original intent was for only two point shots during regulation play! That’s a two!”

    If you were playing basketball against him and he nailed a three, he’d scream, “Yes! Basketball’s original intent was for the game to change. That’s a three!”

    The only question is to what degree he’d understand that he was being a manipulative douchebag.Report

    • Avatar James Hanley in reply to Sam
      Ignored
      says:

      Scalia was one of a slim 5-4 majority in Texas v. Johnson, which struck down Texas’s flag-burning prohibition as a violation of free speech.

      I think that’s the kind of case he had in mind.Report

      • Avatar Sam Wilkinson in reply to James Hanley
        Ignored
        says:

        So for that to be true, we assume that Scalia himself is opposed to flag-burning?Report

        • Avatar James Hanley in reply to Sam Wilkinson
          Ignored
          says:

          It’s not a particularly implausible assumption.Report

        • Avatar Michael Drew in reply to Sam Wilkinson
          Ignored
          says:

          Actually, we have to assume he’d like flag burning to be able to be made illegal. That’s not implausible, but I’m not sure I think it’s likely. He’s intense about free expression in other realms; I can see him being legitimately against flag-burning laws (i.e. liking the Constitution’s prohibition on them), while having pangs of sympathy (or even considerable sympathy) for those who want them.Report

          • Avatar James Hanley in reply to Michael Drew
            Ignored
            says:

            Yes, this follows from Jason’s point that there are multiple ways to interpret “don’t like the result of the case.” Obviously Scalia means something different from you. Obviously, then we should be trying to understand what Scalia means, not simply choosing the definition that would “prove” him wrong.

            And that’s all I’ll say about this. I’m not interested in getting into another of our long-winded discussions where I’m left struggling in the dark to respond to you when I don’t really have any idea what your purpose is.Report

            • Avatar Mike Schilling in reply to James Hanley
              Ignored
              says:

              If Scalia had given some concrete examples, we’d have some idea what he means. Since that statement came immediately after the silliness about “dead, dead, dead”, I think it’s fair to dismiss it as part of a polemic.Report

            • Avatar Sam Wilkinson in reply to James Hanley
              Ignored
              says:

              James,

              Do we really have to pretend that we don’t know what Scalia means? What’s he saying, for the umpteenth time in his career, is that other judges need to put aside their own legal thinking while simultaneously adopting Scalia’s allegedly rigorous method of making legal decisions. The ones that don’t aren’t good judges.

              In other words, he’s not talking about himself and other Originalists; he’s talking about those that disagree with Originalist thinking.Report

              • Avatar Michael Drew in reply to Sam Wilkinson
                Ignored
                says:

                No, this really isn’t what he’s saying Sam. He’s saying it’s not possible to construct a consistent philosophy of interpretation that allows a judge to reach an outcome she “likes” every time.Report

              • Avatar Sam Wilkinson in reply to Michael Drew
                Ignored
                says:

                I entirely disagree.

                Maybe though that is the game that Scalia’s playing. By forcing himself to be a “rigid” Originalist, he gets to say he’s made decisions he hasn’t liked, and thus, he is a good judge because of it. The problem with that though is that I don’t believe there are decisions he has made that he hasn’t personally liked, even the ones that might outwardly appear to be liberal in their construction.Report

              • Avatar Michael Drew in reply to Sam Wilkinson
                Ignored
                says:

                Scalia certainly wants everyone to be his kind of Originalist (which, depending on your definition of “his kind of Originalist,” he hasn’t even been himself. He certainly hasn’t been a rigid Originalist, which I’m not sure if he claims to have been). But he’s really here just saying that, whatever your philosophy of interpretation, you can’t reach all results you like and possibly have been a good judge.Report

              • Avatar Pierre Corneille in reply to Sam Wilkinson
                Ignored
                says:

                I entirely disagree.

                Maybe though that is the game that Scalia’s playing. By forcing himself to be a “rigid” Originalist, he gets to say he’s made decisions he hasn’t liked, and thus, he is a good judge because of it. The problem with that though is that I don’t believe there are decisions he has made that he hasn’t personally liked, even the ones that might outwardly appear to be liberal in their construction.

                I partially disagree.

                I don’t think Scalia is a good judge and I suspect that Scalia is grandstanding and that he does this a lot and his doing so does little to demonstrate his “originalism” is right or that he’s a great guy.

                That said….I suspect that even bad, venal, and / or corrupt judges sometimes find themselves in a position where they have to, or decide to, make rulings they don’t “like,” in any of the senses Jason mentioned above. It’s the law of averages if anything.Report

              • Avatar James Hanley in reply to Sam Wilkinson
                Ignored
                says:

                Sam,

                I think we need to give up the pretense that the League actually fosters efforts to be generous in our interpretations. We might as well accept that while that is the League’s ideal, it is an ideal that is dead, dead, dead, and that in reality the League propagates

                a growing tendency for people…to take the single worst and most offensive interpretation of whatever anyone says, and to then use that interpretation as an excuse to be unnecessarily hostile [and] mean-spirited …

                It’s not restricted to the comments. I think your argument from the OP on, as very clearly shown in this comment, is based on the least generous interpretation of Scalia’s words.Report

              • Avatar Sam Wilkinson in reply to James Hanley
                Ignored
                says:

                I’ll ask you the same question that I tried to end on: will Scalia back DOMA? Marriage is nowhere in the Constitution; nor does it appear in any of the nation’s founding documents. His originalism will demand that he scrap it, right?

                But do you think he will? Or do you think he’ll find a way to find that DOMA is entirely acceptable law-making?Report

              • Avatar BlaiseP in reply to Sam Wilkinson
                Ignored
                says:

                Frankly, given his previous statements on homosexuality he ought to recuse himself from any consideration of DOMA.Report

              • Avatar James Hanley in reply to Sam Wilkinson
                Ignored
                says:

                I don’t think the question is as pointed as I’m inferring that you think it is. I think it shows that you misunderstand both the Constitution and Scalia’s approach to it.

                First, the fact that marriage isn’t mentioned in the Constitution is entirely irrelevant to the case. 100% irrelevant. (Burt, please do chime in if you disagree; I’m making a strong claim that should not go unchallenged.) The federal government has broad leeway to make laws regarding who is eligible for what kinds of benefits. The Constitution does not mention veterans’ widows, either, but Congress can give them benefits. It doesn’t mention old people, but that doesn’t make SS unconstitutional. So that it doesn’t mention marriage is a wholly irrelevant consideration.

                Second, Scalia needs some hook of knowledge for an originalist interpretation. I’m not arguing his hook is always strong, but he needs to have some way of saying “here’s what was originally intended.” He does that two ways: through the text, and through history. The text means he tries (at least in theory) to uses the Constitution’s actual words, and not resort to, for example, talk about penumbras and emanations of amendments (c.f Douglas’s opinion in Griswold v. CT). History means he tries (badly, imo) to understand what the historical understanding of the text is. So even if “X” is not explicitly in the text, if from the start “X” has been the practice, the assumption is that “X” is part of the original understanding. (As a corollary to this, if “X” does not extend back to the original understanding, but has been practiced for a very long time and been treated as legitimate, he’ll tend to accept that long-standing history as having legitimated “X.”)

                So in the case of marriage, since Scalia won’t find it in the text, he’ll look at how traditional the federal government’s recognition of marriage is. I don’t really know just how extensive, but I wouldn’t be surprised if federal government recognition of marriage in regard to income taxes is as, or nearly as, old as the 16th Amendment, so Scalia would treat recognition of marriage as part of the original understanding of the 16th Amendment.

                So the issue of whether the Constitution recognizes marriage is not really relevant to the DOMA case, and it’s not one that any justice is likely to take seriously. At best it will get a passing reference. The issue is not about whether Congress can recognize marriage, but whether it can recognize opposite sex marriages but not same sex marriages. That’s a different question–a 14th Amendment equal protection clause question.

                And it’s a question where the originalist position is probably pretty predictable. The 14th Amendment has never in its 145 year history been interpreted to recognize equality between same-sex marriage and opposite-sex marriage. (Of course it has been interpreted to recognize equality between homosexuals and heterosexuals, to some extent, but Scalia dissented from those decisions precisely because they do not work under an originalist interpretation).Report

              • Avatar James Hanley in reply to James Hanley
                Ignored
                says:

                Urgh, italics should have stopped after “CT.”Report

              • Avatar Sam Wilkinson in reply to James Hanley
                Ignored
                says:

                Fixed it.Report

              • Avatar Sam Wilkinson in reply to James Hanley
                Ignored
                says:

                I imagine that your predictions are probably correct. That said, you’re making exactly the point that I’m trying to make: Scalia will find a way to make the law agree with his own (Republican/Conservative/Catholic) predisposition on gay marriage, because that’s what he wants to be there. His magical system will suspiciously lead him to make a decision that we’re all capable of predicting before the arguments begin, and his decision won’t have anything to do with the arguments themselves, especially considering how utterly pathetic the arguments being made by those opposed to gay-marriage are apparently going to be.

                It’s why I consider his comments during that open meeting so utterly disingenuous.Report

              • Avatar James Hanley in reply to James Hanley
                Ignored
                says:

                His magical system will suspiciously lead him to make a decision that we’re all capable of predicting before the arguments begin, and his decision won’t have anything to do with the arguments themselves

                As I said, I think it’s time to abandon the myth that the League promotes generous interpretations of other people. It’s a nice ideal, and there may be a handful of people who take it seriously, but in fact it doesn’t characterize the League at all.Report

              • Avatar Sam Wilkinson in reply to James Hanley
                Ignored
                says:

                James,

                How would you interpret what he’s saying and doing? Do you believe he isn’t satisfying his own personal needs and beliefs with the decisions that he makes? Do you believe it is purely coincidental that seemingly everything he decides happens to align perfectly with what he seems to believe politically?

                And what would you prefer that I have said? You asked me a question and I answered it as honestly as I could.Report

              • Avatar Mike Schilling in reply to James Hanley
                Ignored
                says:

                Are there any precedents, I wonder, for the federal government to refuse to recognize a marriage that’s valid in the state where the parties reside? To me, that’s the more telling point.Report

              • Avatar Pierre Corneille in reply to James Hanley
                Ignored
                says:

                This is a quibble (I think), but why is it a 14th amendment issue? I thought the 14th was a restriction on the states.Report

              • Avatar James Hanley in reply to James Hanley
                Ignored
                says:

                Pierre,

                Yeah, that’s kind of an odd point. There’s some kind of claim that the 14th’s EP clause also applies to the Feds, but I’m pretty unclear on it, since I don’t really focus on that area anymore. I could probably look it up, but I’ll just cross my fingers and hope Burt will clarify it for us.Report

              • Avatar Mike Schilling in reply to James Hanley
                Ignored
                says:

                Likewise, does Full Faith and Credit apply to the Feds as well as to the states? (Though FFC has never applied completely to marriage, or the Lovings could simply have married during a vacation in New York.)Report

              • Avatar Kim in reply to James Hanley
                Ignored
                says:

                James,
                I try, i really do, to give people the benefit of the doubt on what they have to say.

                Scalia is a good scholar, and a stout conservative. A judge that I can respect, even if I hate most of his rulings.Report

              • Avatar Burt Likko in reply to James Hanley
                Ignored
                says:

                Further to this, and to Prof. Hanley’s remark below, I can only speak for myself. This is an ideal to which I aspire, knowing Stoically that I will occasionally (perhaps even often!) fall short. Initially, this was a conscious reminder which I undertook to give myself from time to time. After a while, it became a habit and now it is an attitude.

                Thus, when I do fall short of the behavior against which I would model myself, I appreciate rather than resent a friend pointing out my failure, for my friend has presented me with an opportunity to improve myself. I don’t intend to suggest that this is an easy thing to do and the stronger one’s own opinions about subject matter X are, the greater the challenge can be to adopt the attitude. I have found, though, that this attitude produces happiness* as I disagree with others, and it forces me to strengthen my arguments.

                * Maybe not always pleasure, but pleasure is different than happiness.Report

              • Avatar Stillwater in reply to Burt Likko
                Ignored
                says:

                Most excellent Burt. There’s a lot of salt ‘o the earth wisdom here, as well as the hifalutin variety.Report

          • Avatar Michael Drew in reply to Michael Drew
            Ignored
            says:

            I put that wrong. I believe he’s with free expression as a concept enough that he doesn’t want laws against flag-burning irrespective of the Constitution’s position on them, and therefore likes the Constitution’s prohibition on them. I believe that because of his other writings on free expression. Therefore he liked that vote. There can always be pangs of sympathy for both sides of a case (but don’t always have to be). Going against those pangs is not, I am convinced, is not his test for good judging. It would be a really weak-sauce test, and I don’t think that’s a likely interpretation of his comment, which suggested that this was a weighty and difficult test to have to live up to. I don’t think it’s obvious this is not close to his meaning. I think I am on the right track. And I am not trying to prove him wrong.Report

      • Avatar Burt Likko in reply to James Hanley
        Ignored
        says:

        That’s exactly right. I’m sure he found that vote unpleasant but intellectually unavoidable. He probably didn’t much like letting the punks in R.A.V. v. St. Paul go, either. He’s generally both strong and principled on freedom of speech.Report

        • Avatar Michael Drew in reply to Burt Likko
          Ignored
          says:

          Why are you sure of that?Report

          • Avatar Burt Likko in reply to Michael Drew
            Ignored
            says:

            Because of the last line in the opinion.Report

          • Avatar Michael Drew in reply to Michael Drew
            Ignored
            says:

            Of the main majority opinion?Report

            • Avatar Burt Likko in reply to Michael Drew
              Ignored
              says:

              AFAIK that’s the only segment Scalia authored. His moral condemnation of the defendant’s actions is plain, direct, unambiguous, and aimed true.Report

              • Avatar Michael Drew in reply to Burt Likko
                Ignored
                says:

                I’m not able too locate the sentence you mean, I don’t think. The last sentence of the Texas v. Johnson majority decision (before ” The judgment of the Texas Court of Criminal Appeals is therefore Affirmed.”) appears in my resource to be, “Nor does the State’s interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression.” I don’t see a Scalia concurrence listed (looking on the Cornell record), nor did he sign the Kennedy one. Unless I’m, just completely off. Obviously not saying the sentence you’re referring to isn’t there, I just don;t know where to look for it.

                But in any case a moral condemnation of the action does not imply a wish that the Constitution allowed making it illegal rather than not doing so.Report

              • Avatar Burt Likko in reply to Michael Drew
                Ignored
                says:

                The R.A.V. majority opinion, my friend, not Johnson.

                Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.

                That’s what Con Law is supposed to be about.Report

              • Avatar Michael Drew in reply to Burt Likko
                Ignored
                says:

                There was one you said you were sure about and one you said he probably didn’t like, My true friend. R.A.V. was not the one you said your were sure about.

                The same explanation I give above of the implications of that sentence also apply here.

                Additionally in that case, he was able to rely on obviously constitutional reasons why the conduct was illegal apart from the notion that it was a hate crime (if I am getting right the issue he was deciding). And further, I don’t see what the evidence here or elsewhere is that he disliked making that distinction.

                If I’m wrong about the issue in the case, please correct me.Report

              • Avatar Burt Likko in reply to Michael Drew
                Ignored
                says:

                If Scalia’s description of the defendant’s (R.A.V.’s) conduct as “reprehensible” doesn’t ring true for you as a full-throated condemnation, then nothing I say will change that.Report

              • Avatar Sam Wilkinson in reply to Michael Drew
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                says:

                But Burt, disliking the defendant isn’t the same as disliking the decision.Report

              • Avatar Michael Drew in reply to Michael Drew
                Ignored
                says:

                Yeah, it rings true. It’s just not the question we’re talking about. It certainly doesn’t show he didn’t like the decision he made/wrote there.Report

              • Avatar Burt Likko in reply to Michael Drew
                Ignored
                says:

                Then I guess we’re back to the question of what Scalia meant by the word “like.” And recall that Scalia refers to disliking “results” rather than disliking “decisions.”

                It seems clear enough to me from Scalia’s quote, “The judge who always likes the results he reaches is a bad judge,” that he’s distinguishing the results of the case (e.g., R.A.V. goes free, Johnson goes free, cf. Shatzer’s conviction stands) with the mandates of the law (the reasonable limits on freedom of speech or freedom from coerced self-incrimination).

                You can see the imperative of preserving freedom of speech more than you like the innate justice of punishing a little shit who burns a cross on a neighbor’s lawn. So you strike the law down, invalidating the conviction. You like the decision (which preserves free speech) but not the result (the little shit doesn’t get what he morally deserves).

                That’s what I think Scalia was talking about — a distasteful result being an inevitable consequence of principled decision-making — and if I’m right about that, then I pretty much agree with him. Sticking to principles does occasionally and inevitably require giving the nod to parties that, if one were using a non-principled calculus, one would prefer not to.

                I don’t think Scalia is always true to the principled philosophy he espouses, and that he is as vulnerable to the seductive call of rationalization to reach a result dictated by personal preference rather than rigorous application of principle as anyone else, which is why I tend to agree with Sam’s prediction that Scalia eventually votes to uphold DOMA rather than strike it down — his personal preference will override his principle, and he will rationalize backwards to justify this. He’s not unique; we all do that sometimes. We hope that judge does it less than someone in a less critcal role, but given that we’re talking about human beings and not computers, it’s going to happen anyway. When a judge overcomes that tendency and sticks to principle, I find that admirable — which is why I tend to admire Scalia’s First Amendment jurisprudence — and when they don’t, we’re reminded that they have feet of clay like the rest of us — which is why I tend to dislike Scalia’s Fifth Amendment jurisprudence, and the result I fear when DOMA comes before him as well.Report

              • Avatar James Hanley in reply to Michael Drew
                Ignored
                says:

                Nicely writ, Burt.Report

              • Avatar Burt Likko in reply to Michael Drew
                Ignored
                says:

                Thanks, Prof. Hanley. I thought I got a little clumsy there in the last paragraph; I hope I’d edit something like that a lot before submitting it to a court. But it’s a blog, not a legal brief, and hopefully my point is clear enough.Report

              • Avatar James Hanley in reply to Michael Drew
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                says:

                You did, but the first 4 were so spot on I thought it’d be churlish to say anything. 😉Report

              • Avatar Michael Drew in reply to Michael Drew
                Ignored
                says:

                Did R.A.V. go free, or was his conviction on the hate crime thrown out? Was he not prosecuted for the act of burning an object on someone else’s property, etc.?

                Other than that, I agree, that’s a good exposition. I’m not sure I agree that his use of the term results is as general as you make it out to be.

                The point I’d emphasize is that we agree in our interpretation of what it is Scalia thinks is not to like in a decision: too much injustice.Report

              • Avatar Michael Drew in reply to Michael Drew
                Ignored
                says:

                I’ve tried to look into it a bit, but does anyone know – did R.A.V. go completely free, or was a prosecution (in the juvenile system) on non-hate-crime infractions go forward?Report

              • Avatar Michael Drew in reply to Michael Drew
                Ignored
                says:

                …The summaries I look at say he was charged on two counts, one of which was under the St. Paul Bias-Motivated Crime Ordinance that was eventually invalidated by SCOTUS.

                I’m trying to track down the course of the other count to determine what the “result” of the case under Scalia’s ruling that he may or may not have liked was.Report

              • Avatar Burt Likko in reply to Michael Drew
                Ignored
                says:

                IIRC, young Mr. V. was prosecuted for at least one other crime as well, which stuck. Maybe that made it a little easier to put the city of St. Paul rather than the defendant under the microscope.

                But I also think that’s a matter of trifling importance for the subject matter under discussion.Report

              • Avatar Michael Drew in reply to Michael Drew
                Ignored
                says:

                Hardly, when your claim is that Scalia didn’t like the result because the result was that the cross-burner went free. If he didn’t go free but rather faced prosecution that Scalia approved of, then it’s rather material to your example.Report

              • Avatar Michael Drew in reply to Michael Drew
                Ignored
                says:

                …After all, the sentence I believe you refer to seems (to me) to indicate that Scalia does not find at a least a a plausible result in which this conduct is legally sanction – just in a way that doesn’t regulate speech in a content-non-neutral way – unlikably unjust:

                Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.

                If a prosecution for vandalism, destruction of property, trespassing, or any of a number of other non-expressive aspects of this action went forward, as we think it did, while the Bias-Motivated Crime Ordinance was invalidated, it doesn’t look to me like Scalia was expressing much dislike of this result (both in the world and in the law, as the invalidation of a statute is in fact a real part of the result of this decision) in that sentence at all, quite frankly.Report

              • Avatar Michael Drew in reply to Michael Drew
                Ignored
                says:

                Sorry – forgot you had already quoted the language in question.Report

              • Avatar Pierre Corneille in reply to Michael Drew
                Ignored
                says:

                We hope that judge does it less than someone in a less critical role, but given that we’re talking about human beings and not computers, it’s going to happen anyway.

                I disagree. Sometimes the computer sends off to cyberspace limbo the best comments I have ever written, and all because it arbitrarily decides it doesn’t like me.Report

              • Avatar Michael Drew in reply to Michael Drew
                Ignored
                says:

                I’m going to enter a claim to have simply prevailed on this pointp further response from Burt.

                R.A.V. didn’t go free; rather he was prosecuted under other statutes. Scalia values free speech. Scalia opposes hate speech regulations. Scalia invalidated a hate speech regulation without having to let a hate-speaker go unprosecuted under content-neutral laws regarding conduct Scalia has no problem with. There is no facial reason to think this is a result Scalia did not like.

                This is just one example of possible results Scalia has reached that he didn’t like; there could be many other candidates. But this one fails as a candidate.Report

              • Avatar Michael Drew in reply to Michael Drew
                Ignored
                says:

                “…*pending* further response…,” that is.Report

              • Avatar Burt Likko in reply to Michael Drew
                Ignored
                says:

                Claim what you wish. I’ve made the point I wanted to make and read sufficient other perspectives that I thought this thread was exhausted a day ago. I’ll not dispute further here.Report

              • Avatar Michael Drew in reply to Michael Drew
                Ignored
                says:

                I don’t know what that means. R.A.V. is clearly not an example of Scalia not liking a result. If you don’t dispute that, fantastic.Report

              • Avatar Michael Drew in reply to Burt Likko
                Ignored
                says:

                …I meant to add on the “results” question – but I don’t have any case to make that that sense is right. Ultimately I think he was just saying: I don’t have to like the decision I have to make under the law, and I shouldn’t always like it. But that’s fair, if his point was that a judge doesn’t always have to like the results his decisions put into effect, I obviously accept that as that was his word. I don’ think it changes much, however. I certainly never meant to say I thought he was saying that it’s necessary that a good judge occasionally not like the decontextualized act of correctly applying the law, regardless of results.Report

              • Avatar Michael Drew in reply to Michael Drew
                Ignored
                says:

                …whoops, slightly wrong threading here.Report

        • Avatar Sam Wilkinson in reply to Burt Likko
          Ignored
          says:

          But that’s the game he’s playing. If he’s strongly principled about the freedom of speech, he can’t have disliked the decision he made because he has prioritized the one over the other.Report

          • Avatar Michael Drew in reply to Sam Wilkinson
            Ignored
            says:

            I think this is a strong argument to which there are certainly exceptions. Certainly there are legally mandated outcomes that judges would like to see changed (by changes in the law). There, there are disliked outcomes resulting from strong cmmitments to the rule of law.

            But I think your point is a good one often on tendencies and emphases, as well. Scalia being so compelling elsewhere on freedom of expression must throw into considerable doubt whether he in fact disliked casting his Texas v. Johnson vote. I don’t really see any reason to suspect one way or the other given the strength and nature of his arguments on expression elsewhere.

            I mean, unless the argument is that he actually second-guesses the Founders on the question – thinks they over-protected speech from the outset. And again, I don’t think his writings on the question elsewhere suggest that.Report

          • Avatar Johannes in reply to Sam Wilkinson
            Ignored
            says:

            I think it’s fair to note that Scalia has written decisions which cut against his moral grain, like Texas v Johnson and R.A.V., but that he has not done them as often as he used to since Bush v. Gore, and that his willingness to overturn bushels of precedents (Citizens United, the ACA case, and even non-constitutional cases like Bell Atlantic v. Twombly and Ashcroft v. Iqbal) has sharply increased. In other words, he seems to me more driven by personal considerations than in his first. 15 years on the bench, but not entirely unprincipled.Report

      • Avatar NewDealer in reply to James Hanley
        Ignored
        says:

        I would say this is probably where Scalia votes against his desired outcome the most. I can imagine him finding flag burning repellent.

        Same with certain decisions where he votes for the criminal defendant.Report

      • Avatar James Vonder Haar in reply to James Hanley
        Ignored
        says:

        Also not a particularly originalist decision, since the Framers’ ideas of freedom of speech were significantly more constrained than our own.Report

    • Avatar Pinky in reply to Sam
      Ignored
      says:

      Kyllo v United States – Scalia wrote the majority opinion on a 5-4 decision against the use of thermal detection by police looking for marijuana grow lights. Is Scalia anti-pot? My guess is yes.

      Hamdi v Rumsfeld – Scalia took the narrowest possible interpretation of the federal government’s ability to suspend habeas corpus in the war on terror. Did he have a personal fondness for Yaser Esam Hamdi over Donald Rumsfeld, or greater sympathy for Hamdi’s cause over Rumsfeld’s? I’d assume not.Report

      • Avatar Mike Schilling in reply to Pinky
        Ignored
        says:

        Did he have a personal fondness for Yaser Esam Hamdi over Donald Rumsfeld

        Probably not. Though for me that would be a tossup.

        But again, this depends on what you mean by “like”. I wouldn’t be surprised if Scalia felt great about saying “If you have a case, make it. This is America. We don’t do preventive detention”, as well he should have.Report

      • Avatar Michael Drew in reply to Pinky
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        says:

        If these are his examples of decisions he didn’t like having to make, then I think the test has really not much purchase on other interpreters’ faults.

        I mean, he’s so “anti-pot” that, despite there being so many laws against pot on the books that he regards as Constitutional to create an entire regime in law against the plant, that his love of the Fourth Amendment wasn’t great enough to actually allow him to like making that decision? First off, I just don’t think I buy that. But even if so, that’s supposed to make other judges pause in their thinking – Scalia dislikes pot so much that he considered a heavy personal lift to strike down this law’s challenge to the Fourth Amendment? Wow, poor, poor Nino.

        No one should care about his test for good judging if this is his test. It’s practically incidental.Report

        • Avatar Pinky in reply to Michael Drew
          Ignored
          says:

          The argument could be made that judges have done that: put their love for a particular outcome above their love for a Constitutional clause. The well-intentioned love of affirmative action over the words of the Fourteenth Amendment. The well-intentioned opposition to capital punishment over the words of the Fifth.Report

        • Avatar NewDealer in reply to Michael Drew
          Ignored
          says:

          We know he is anti-pot enough to join the very liberal interpretation of the Commerce Clause in Raich.

          Rehinquist probably really disliked marijuana just as much as Scalia but he wanted to end the Wickard v. Fillburn board interpretation of the Commerce Clause.

          So in Raich is a good way of determining what matters to the Justices especially the conservative ones. Scalia went with his hate of narcotics. Rehinquist, O’Connor, and Thomas went with their dislike of a broad commerce clause.Report

      • Avatar Sam Wilkinson in reply to Pinky
        Ignored
        says:

        In both cases, the deck is being loaded here. You’re looking at the people involved as evidence of what Scalia does or doesn’t like; my assumption is that more broadly (as Mike Schilling notes), Scalia liked making both of those decisions, as they allegedly showed a man who wasn’t entirely loyal to the Republican operation.Report

        • Avatar Pinky in reply to Sam Wilkinson
          Ignored
          says:

          Damned if he does, damned if he doesn’t, then?

          I think that Scalia’s point – maybe the whole point of his career – is that judges shouldn’t construct rulings for the purpose of reaching their desired outcomes. If Scalia is to be assumed to have the beliefs of a mainstream conservative, then he’d prefer to rule against flag-burning, against marijuana, against habeas corpus for suspected terrorists.

          I guess I need to know what your falsifiable theory is here in order to present evidence against it.Report

          • Avatar Sam Wilkinson in reply to Pinky
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            says:

            He’s not damned if he does and damned if he doesn’t; he’s damned for proposing a loaded mechanism to understand judges which he doesn’t apply to himself.Report

            • Avatar Pinky in reply to Sam Wilkinson
              Ignored
              says:

              I’m sorry, Sam, I’m just not sure what you’re accusing him of, or what standards he’d have to meet or break in order to discuss it further.Report

              • Avatar Sam Wilkinson in reply to Pinky
                Ignored
                says:

                I’m accusing him of offering a method of judging judges – do they “like” the decisions that they’ve made – that he then doesn’t apply to himself. Which of his personal beliefs has he sidelined, in other words, and when? If anything, he seems to revel in his personal beliefs and lectures others when they don’t adopt his as their own.

                The decisions cited above as examples of his willingness to go against his personal beliefs don’t show that; they show him applying his personal thinking (Originalism) to his decisions.Report

              • Avatar Pinky in reply to Sam Wilkinson
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                says:

                So you’d need a list of his desired personal outcomes in order to confirm that he sometimes rules against them?Report

              • Avatar Sam Wilkinson in reply to Pinky
                Ignored
                says:

                As ridiculous as that sounds: yes. That’s precisely the sort of thing we’d need to know if Scalia was being at all serious or if he was simply trying to imply that other more liberal judges are responsible to put aside their own interpretations of the law in a mass conversion to Scalia’s originalism.Report

              • Avatar Michael Drew in reply to Sam Wilkinson
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                says:

                This is quite right, and it’s not ridiculous at all. To truly be able to have a sense of what this test would imply for what other judges must do, we’d need at least a reasonably representative accounting of the times when his view of the law and his ‘preferences’ diverged. You wouldn’t need a list including every decision, but you’d need a fairly extensive one. More importantly, you’d need it to explain the nature and reason for these other preferences, and how he saw them as interacting, or not interacting, with the law.Report

              • Avatar Pinky in reply to Sam Wilkinson
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                says:

                Well, your position is logically consistent. One can’t be sure if a person is deciding against his preferences unless one knows his preferences. But by the same token, you can’t call him hypocritical for always deciding with his preferences unless you know his preferences.Report

              • Avatar James Hanley in reply to Sam Wilkinson
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                says:

                You’ve been offered a list, and you’ve cleverly interpreted them away.

                Yes, on one level a judge must like the rulings he makes, because he thinks their the right rulings. But obviously Scalia couldn’t have meant that. He must have meant some other level of dislike–but when offered examples of those other levels of dislike, you just wave your hands at them.

                He’s not the one proposing a loaded mechanism–you are. Or if he in fact is, you’re just proposing a different loaded mechanism. There’s a real pot/kettle thing going on here.Report

              • Avatar James Hanley in reply to Sam Wilkinson
                Ignored
                says:

                Sam, pretend it’s opposite day. If you were going to write a post defending Scalia’s position, what would you argue?Report

              • Avatar Sam Wilkinson in reply to Sam Wilkinson
                Ignored
                says:

                Pinky,

                We know some his preferences, don’t we? He hangs out with conservatives. He goes to an extremely conservative Catholic Church. We also know the previous decisions he has made, joined, and written. We know the things that he has said repeatedly. Surely those can be used to at least get us on a path toward knowing the man’s preferences.Report

              • Avatar Sam Wilkinson in reply to Sam Wilkinson
                Ignored
                says:

                James,

                If it was opposite day, I would do what I always prefer: I’d aim for honesty. In Scalia’s case, I’d say simply, “I am a conservative Catholic man from an older generation. I don’t like liberals or liberal ideas or a liberal society. I have very strong preferences for conservative outcomes and that is how the overwhelming majority of my jurisprudence has worked out. When I say I’m an Originalist, I’m putting a deliberate spin upon those listening to me, couching my own desire for particular outcomes in a bullshit legal theory that I’ve created because it sounds better than me saying, ‘I’ve decided this outcome because it works best for me and the things I care about.’ But recognize that I’m no different from any other jurist anywhere else on Earth. I’m a biased human being making biased decisions and dressing them up to take the edge of bias off of them. That’s all. Same as Sotomayor over there.’

                I recognize in advance that you’ll howl about what I’ve done above – “It’s unfair! It’s evidence of how biased YOU are!” etc – but this artifice that we routinely insist upon is plainly absurd. We needn’t pretend, in other words, that human beings are objective creatures, no matter how attractive that thought might conceivably be. Scalia is always going to satisfy his own needs, just like every one else, and no trumped up theory of decision making is going to change that.Report

              • Avatar Michael Drew in reply to Sam Wilkinson
                Ignored
                says:

                We haven’t been given an authenticated list of the (or some) times when, according to him, he’s not liked his decisions, and why. It’s all been speculation, and at least I as far as my agreement with Sam went, that’s what I took him to be saying was necessary.Report

              • Avatar James Hanley in reply to Sam Wilkinson
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                says:

                this artifice that we routinely insist upon is plainly absurd.

                Look, Sam, I’m not trying to say you’re a bad guy. I’m only saying that you are evidence that Tod’s appeal for a comments culture in which we strive to be generous is hopelessly doomed. I don’t think it’s “plainly absurd” to strive for generosity in interpretation,* but as long as enough other folks here do, whether as explicitly as you or just implicitly, it’s certainly absurd to think that the League ever actually will achieve its goal of such a comments culture.

                That’s my point, and I’ll just leave it at that.
                ______________________________
                *Let me be clear that I am not holding myself up as a paragon here.Report

              • Avatar Pinky in reply to Sam Wilkinson
                Ignored
                says:

                Oops. I accidentally started a new outdent? indent? thread? Anyway, see my reply below.Report

              • Avatar Sam Wilkinson in reply to Sam Wilkinson
                Ignored
                says:

                James,

                I don’t know, genuinely, what you’re talking about. If the issue was Sonia Sotomayor walking around and declaring that her jurisprudence was the best and the rightest in all the land, I’d be making the same objection. I would think that’s precisely the thing we’d strive for here at the League, although I’m new and you’re not. The point is that the culprit here is the arch-conservative Antonin Scalia. He’s the one trying to place his own conservative decision making within this absurdist originalist framework, a framework which curiously seems to repeatedly give us decisions that we imagine Scalia would have made even without its existence.

                I ask again though: what would you want from me? What is the kinder reader of what Scalia was saying? What is the more generous interpretation? Bad though it might have been, I really did try to work through what he might have meant, and although my answer clearly wasn’t you believe, it was arrived at in good faith. Just as my write-up of what I’d consider an honest response is written in good faith.Report

              • Avatar Jaybird in reply to Sam Wilkinson
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                says:

                I suppose that we’re all just lucky that there aren’t any examples of Sonia Sotomayor saying that her judgment would be better than someone else’s that we could hold up and see what happened.Report

              • Avatar Sam Wilkinson in reply to Sam Wilkinson
                Ignored
                says:

                Are you referencing Sotomayor’s “wise Latina” comment?Report

              • Avatar Jaybird in reply to Sam Wilkinson
                Ignored
                says:

                What? She made a wise Latina comment?Report

              • Avatar Sam Wilkinson in reply to Sam Wilkinson
                Ignored
                says:

                It is fine and fair if you want to bring this up. She made the comment on at least four occasions and perhaps more often than that. She was clearly proud of her heritage, her experiences, and the way those influenced her. The tacit admission of a background that serves to inform her decision making is not the same thing as claiming that decisions are being made objectively according to the letter of the law and not the opinion of the jurist.

                If anything, Sotomayor’s acknowledgement that, hey, people are influenced by the things in their lives is more of what I’m looking for. Again, if Scalia was saying, “Hey, I’m from this particular generation and this particular church and as a result, I don’t like gay people,” then that would be fine. He’d be acknowledging the game. Throwing his hands up in the air and saying, “Hey, it isn’t me, this is originalism and what it demands and also, its the Founding Fathers who don’t like gay people…” is something else altogether.

                I don’t object to the existence of bias. I object to bias cloaked in the artifice of objectivity.Report

              • Avatar Jaybird in reply to Sam Wilkinson
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                says:

                So, to clear things up, we’re just establishing that your response to her quote wouldn’t be an example of her saying that her jurisprudence was superior to much of the country’s history of jurisprudence is not, in fact, an example of you calling her out?Report

              • Avatar Kazzy in reply to Sam Wilkinson
                Ignored
                says:

                Let’s look at what Sotomayor actually said:

                “I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white male who hasn’t lived that life.”

                Now, we can focus on the “Latina” and “white” parts or even the “woman” and “male” parts. But I think we should focus on the “richness of experiences” and “hasn’t lived that life” parts, because to me, a life that is rich in experiences is objectively preferable for a judge than one that isn’t.Report

              • Avatar Jaybird in reply to Sam Wilkinson
                Ignored
                says:

                Personally, I would have used Kagan as my example of someone that I could rely on never saying anything interesting enough to be offensive.Report

              • Avatar James Hanley in reply to Sam Wilkinson
                Ignored
                says:

                Sam,

                I don’t know how to explain any better than Burt and I have done so far.Report

              • Avatar Sam Wilkinson in reply to Sam Wilkinson
                Ignored
                says:

                James,

                I’m doing my best here. I’m engaging with you, and, if he wants to join in, Burt too. I’m asking plainly: what SHOULD I have said, given that you think I wasn’t generous in my interpretation of this man? What SHOULD I have thought and then written about what he said and about his judicial history?Report

              • Avatar James Hanley in reply to Sam Wilkinson
                Ignored
                says:

                I think you should have said,

                Scalia claims to follow an originalist legal philosophy and says it sometimes requires an outcome he doesn’t really like. While I dislike that legal philosophy and don’t think he really does always follow it, can we find examples that plausibly demonstrate where he has followed what can reasonably be called an originalist approach and came to a result he didn’t wholly like.

                Because while I don’t like Scalia, either, and while I think all justices opinions have more politics and less law in them than they like to let on, I also think the evidence suggests that all–or nearly all–of them feel constrained sometimes to rule in ways that produce results they’re not entirely comfortable with. And so with Scalia. While his originalism clearly–or at the least, arguably–doesn’t constrain him as much as he claims, I think there’s little doubt that he doesn’t like the fact that dirty hippies can burn flags and nasty racists can burn crosses. But the Constitution says they can do those ugly things, so that’s how he rules.

                What really struck me was your, as it seemed to me, claim that trying to be generous in your interpretation would be absurd. It sounds–and ironically this may be an ungenerous interpretation in its own right–like you were arguing that purposely choosing the least generous interpretation is what’s justified.

                If in fact you think generosity of interpretation is an absurd artifice, I hope you’ll understand just how justified I am when I give your next post an ungenerous interpretation–just more statist rantings from a liberal who hates liberty and wants to create a Harrisin Bergeron world of equality, perhaps–because of course for me to be more generous would be absurd.

                That’s the best I can do, really. If you don’t get it, I just don’t know what else to say.Report

              • Avatar James Hanley in reply to Sam Wilkinson
                Ignored
                says:

                P.S. did Scalia say he was the only jurist who was forced to conclusions he reached results they didn’t like? I don’t see any report of that. So it’s. a stretch to suggest he’s applying a standard to others that he’s not applying to himself. that’s a lot if interpretation on veryblittle evidence.

                Of course he clearly thinks his approach is the best, but so do the others. He’s just a lot more vocal than most of them. And as flawed as originalism inevitably is in practice, I’d argue it’s theoretically more justified than Breyer’s “active liberty” approach, that essentially says the big constitutional questions are to be decided democratically (an approach that seems to me to undermine the very concept of constitutionalism). But I’d bet there are cases where Breyer has applied his approach when he doesn’t necessarily like the outcome that democracy will produce.Report

              • Avatar Sam in reply to Sam Wilkinson
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                says:

                I’m on my phone but wanted to quickly clarify something: the absurd artifice I was referring to was the idea of judges (originalists or otherwise) as objective arbiters, not the idea that individuals are owed a generous reading.Report

              • Avatar NewDealer in reply to Sam Wilkinson
                Ignored
                says:

                Sam,

                Sounds like you are a legal realist:

                en.wikipedia.org/wiki/Legal_realismReport

              • Avatar James Hanley in reply to Sam Wilkinson
                Ignored
                says:

                the absurd artifice I was referring to was the idea of judges (originalists or otherwise) as objective arbiters, not the idea that individuals are owed a generous reading.

                OK, then I really badly misread that. Sorry about that, and thanks for clarifying it.Report

              • Avatar Sam in reply to Sam Wilkinson
                Ignored
                says:

                James,

                I replied more below, because I get insanely frustrated with nested comments at maximum thinness. HULK SMASH!Report

  7. Avatar Pinky
    Ignored
    says:

    Sam (12:34) – That’s why I gave the examples I did. I made assumptions that Scalia probably favored the Bush administration over a terror suspect, and the police over a pot-grower. Someone else discussed the flag-burning case, and I think that’s a likely example as well. An educated guess.

    Sam (12:41) – So for Opposite Day you’d argue the same as you’re arguing today? Hardly seems fair. Of course, we do have biases. Everyone does. Most everyone mitigates them. Sometimes we overcompensate for them. Almost always, we have contradictory biases. But part of being an adult is learing to balance them out. The reason that I’m not sitting in my own poop – sorry, make that “shouldn’t be” sitting in my own poop – is that we learn to function beyond our first instincts. It doesn’t seem like a fair critique to say that Scalia must be making unfair decisions because he has human biases.Report

    • Avatar Patrick Cahalan in reply to Pinky
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      says:

      I think Sam’s biggest problem with Scalia isn’t that he’s human and occasionally biased.

      Sam’s biggest problem with Scalia is that he

      • (more or less routinely) Comes across in public as being someone who believes that he’s found an objectively superior framework for properly adjudicating law
      • (more or less routinely) Offers, ah, shall we say, less than charitable public assessments of people who do not subscribe to his objectively superior framework
      • (more or less routinely) Offers judicial interpretations that show… at the very least… that his application of his objectively superior framework for properly adjudicating law is applied less consistently in some domains of the law than the others (see Burt’s comment)
      • Thus, his objectively superior framework is much less distinguishable from a living Constitutionalist framework than it might otherwise be.
      • (more or less routinely) Doesn’t offer much in the way of public comment that he recognizes that he has this problem himself.

      Which means, really, that Sam’s biggest problem is that Scalia is kind of a pompous jackass… not that he’s a bad judge, necessarily.Report

      • Avatar Pinky in reply to Patrick Cahalan
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        says:

        That doesn’t sound right. I mean, all nine justices could be pompous jackasses. They probably are, given the way most people act when put into positions of authority. Sam’s complaint is about Scalia’s judicial approach, at least implicitly.

        Looking at your comment and Burt’s (thanks for pointing it out, btw – these threads can get hard to follow) the question seems to be whether Scalia does hold to his philosophy, which would require consistency. Other judges aren’t held to that standard, apparently because they’re not claiming to follow it. I remember that O’Connor was typically praised for always striking the middle path, even though that meant leaving a trail of inconsistent decisions.

        So, to address your five points. #1 is reasonable. Every judge believes that his approach is best. #2 puts Scalia within two standard deviations of every other justice in terms of his, let’s call it “self-assurance”. I don’t see a strong argument that Scalia fails at point #3, and neither does Burt apparently. #4 and #5 dissolve without #3.Report

        • Avatar Sam Wilkinson in reply to Pinky
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          says:

          Pinky,

          I think that’s a slight misreading of what I was saying. My point isn’t that Scalia doesn’t have a framework; it’s that Scalia isn’t honest about his framework. He says he’s just doing what the Founding Fathers wanted. I’m saying that he’s just doing what he wants (which is making decisions that are almost always conservative) and then saying that the Founding Fathers wanted it. It’s that extra step that gets me.Report

          • Avatar James Hanley in reply to Sam Wilkinson
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            says:

            Sam,

            A lot of folks who study the Supreme Court think all justices do this–apply whatever method they prefer not truly for the purpose of finding the “right” outcome, but to justify whatever outcome they politically prefer. It’s generally called the attitudinal model, and to the extent it’s possible to do good quantitative research about the judiciary, it seems to be well supported by the data. It’s worth noting, though, that even the attitudinal scholars think that it’s only a general model, one that explains most, but not all, outcomes. Because sometimes justices do rule differently than the attitudinal model would predict, and the likely reason is that there are some legal/constitutional principles that their professional training has embedded in them that–by virtue of having been professionalized in that manner–they feel compelled to follow, even if in their heart of hearts they’d really like to rule differently.

            So my take on Scalia is that he’s not really doing anything different from other justices. He’s just extra smug because gets to pretend he’s in line with the Founders. Of course he relies on absolutely execrable historiogaphy, that my History colleagues in the offices next to mine shudder to contemplate, as well as not always following it (as Burt noted), so I’m in agreement with you that he’s less than wholly honest about his framework. So an an objective basis I think he’s quite clearly fooling himself. On a normative basis, I can’t quite find a reason to get outraged. If he didn’t have originalism and textualism, he’d just employ some other interpretive theory to justify the same rulings.Report

              • Avatar Sam in reply to James Hanley
                Ignored
                says:

                Thank you. I find it interesting that this scholarship exists given political SCIENCE’s seemingly recent obsession with pretending that everything political can be quantified.Report

              • Avatar James Hanley in reply to Sam
                Ignored
                says:

                But everything political can be quantified, given sufficient data points.

                Yes, I’m serious. I’m one of those who think quantification is what saves political science from being mere journalism (although I’m not a very adept quant myself).Report

              • Avatar Sam in reply to James Hanley
                Ignored
                says:

                Oh God. If you think you didn’t like me before, just wait until I get going on the (over)quantification of human behavior.

                Every Saturday, I play golf with a guy who spent a lifetime brokering coal. You can imagine that this puts us on rather different sides of the political divide. We have a standing rule to simply avoid political conversation. Perhaps we should consider this regarding quantified political science?Report

              • Avatar James Hanley in reply to Sam
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                says:

                Oh, don’t go to any bother either way on my account. I already know the arguments and am intimately familiar with the depth of hostility in my discipline between the opposing sides. I rather comfortably cross back and forth between them, trying to avoid the more dickish attitudes of either side (both, amusingly, are immovably convinced that the other side is terrified of the other’s method, when in fact each is simply disdainful).Report

            • Avatar Sam in reply to James Hanley
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              says:

              My reason to get outraged is his insistence upon the idea that he’s got a framework and that his framework is better. To then pivot from that to the idea of these absurd rubrics is simply beyond the pale behaviorally.Report

              • Avatar James Hanley in reply to Sam
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                says:

                Eh, he’s just particularly vocal about it. He is, in general, an arrogant guy, which of course is always irritating. But I read Breyer’s Active Liberty book, and in a much quieter tone it carried much the same insistence on the superiority of his preferred method.

                (I should say I tried to read it. I found the argument so bad that I never bothered to finish.)Report

              • Avatar Sam in reply to James Hanley
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                says:

                I assure you that if Breyer was doing the same thing, it would have been Breyer’s name up there instead of Scalia’s.Report

          • Avatar Pinky in reply to Sam Wilkinson
            Ignored
            says:

            Sam, you’re right that my reading was a little askew. Maybe fair, but maybe not. I’m not sure. But it just seems to me that your criticism of Scalia isn’t due to his professed originalism, but that your criticism is uniquely applicable to someone who professes originalism. You say that if he admitted his leanings you’d be fine with it. If he professed to follow a party or to want to move the country more toward a, say, French legal approach, you’d be able to accept it. But its the fact of his claim to be rooted in original understanding that opens him to the criticism you make. Something about that bothers me.Report

            • Avatar Sam in reply to Pinky
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              says:

              I’m writing things that make sense in my head that don’t necessarily make sense in comment threads. That said, my response to what you’ve written above is a very hesitant, “Ehhhhh….” because I don’t think that’s the entirety of my point. When I see Scalia championing his originalism, I see a man making legal decisions that he personally likes and then dressing them up in this originalist costume. In other words, he isn’t quite saying, “This isn’t me, it’s the originalism!” but it’s close enough. We’re then supposed to believe that the originalism just so happens to overlap with the opinions that a hugely conservative Catholic from his generation happens to also believe.

              So let’s take the opposite example. Let’s suppose a liberal was saying that the Founding Fathers WANTED gay marriage. Let’s suppose a liberal judge said, “The Founding Fathers clearly wanted gay marriage in all of the states and so I am commanded by my belief in originalism to decide this way.” I’d object just as mightily. But of course, nobody makes that argument.

              Again, I’ve argued strenuously for the idea that all art is subjectively understood and that people who propose objective frameworks for the evaluation of art strangely all happen to have their own favorites overlap with what should be considered objectively “best.” I find that just as stupid.

              What I want from Scalia, or from any judge, or really for any human being, is to simply say, “I am a person. These are the things I believe. This is why I’m making this decision.” It’s when that reality is abandoned that I get off board. And Scalia abandons that reality aggressively.Report

              • Avatar James Hanley in reply to Sam
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                says:

                What I want from Scalia, or from any judge, or really for any human being, is to simply say, “I am a person. These are the things I believe. This is why I’m making this decision.”

                I would argue that there’s a danger in that. The idea that the law has a life and internal logic, that there really is a there there in the Constitution, may be less than absolutely true, but for the sake of the value of law it needs to be seen as different than mere politics, else there is no respect for it.

                It probably is all, or nearly all, politics. I can certainly round up more knowledgeable people than myself who would argue that it is. And I’m not much given to noble lies. But I think the concept of constitutionalism, of a constitution as something that does formally constrain standard politics, needs to be encouraged and promoted, and if possible made true. (In fact my hatred for Breyer’s approach is that it comes dangerously close to abandoning constitutionalism in favor of standard politics.)

                So I’m all well and good with pointing out that Scalia’s approach doesn’t do what he claims it does, that only in rare cases can we plausibly believe it actually constrained his policy preferences, because pointing that out can reinforce that constitutional ideal. But if all the justices came out and admitted they’re driven by policy and not law, constitutionalism would be overthrown. It nearly is now anyway, and perhaps there’s no hope of saving it. But I’m persuaded we’ll have a worse country when it’s dead.Report

              • Avatar Pinky in reply to Sam
                Ignored
                says:

                “We’re then supposed to believe that the originalism just so happens to overlap with the opinions that a hugely conservative Catholic from his generation happens to also believe.”

                Maybe that’s my sticking point. I’m persuaded that his jurisprudence matches his claims about it. If he were writing strictly as a conservative Catholic, we’d be looking at prayer in schools, no work on Sunday, no contraception, no usury, pornography, blasphemy, divorce, et cetera. I don’t see his opinions lining up perfectly with an activist conservative Catholic. He seems to be following the rules he sets for himself as an originalist. If those rules coincidentally match a lot of the beliefs of an earlier era, then that may only mean that the earlier era thought in terms that were consistent with the Founders.

                It really is hard to see a break between the thinking of Thomas Jefferson and Joe Shmoe, circa 1950. There’s race, and there’s been a gradual expansion of federal power, but that’s about it. Scalia’s apparent world view falls in line with Shmoe, and his decisions fall in line with Shmoe except for seeing a more minimal role of federal government. I’m not seeing the inconsistency between his claims and his performance.Report

  8. Avatar Sam
    Ignored
    says:

    There are various reasons I didn’t write what you suggested:

    Scalia claims to follow an originalist legal philosophy and says it sometimes requires an outcome he doesn’t really like. While I dislike that legal philosophy and don’t think he really does always follow it, can we find examples that plausibly demonstrate where he has followed what can reasonably be called an originalist approach and came to a result he didn’t wholly like.

    First of all, this looks like an academic paper in which an author is trying to be even and fair and reasonable. I want to acknowledge that immediately and at the outset of my response. I did my time (badly) in graduate school; I’ve written enough of those. I find writing like this unconvincing and anodyne, because it ultimately asks us to pretend as though we’re not human beings. (I find journalism of this sort unconvincing too.) If your objection to things I write is that they’re not written like the above, I would encourage you to ignore the things I write while also saying that I would still look forward to actually meeting you and hanging out. I am who I am; you are who you are. What we’re both trying to do when we write seems to be fundamentally different.

    Second of all, I didn’t write specifically the above because I don’t actually believe it. I don’t think that Scalia was making decisions that he didn’t like; I don’t think anybody makes decisions that they don’t like. Yes, getting a root canal is awful, but we get the root canal because the other option is even worse. I’ve touched on these same ideas when I’ve written about artistic objectivity (not that I necessarily think I did a good enough job for you have either read those or remembered my arguments). I believe that when Scalia decided both of those cases (cross-burners and flag-burners), he was prioritizing his originalism, that his originalism directed him toward his decisions, and then he walked away happy as a clam about both. Sure, maybe he didn’t like that he left cross-burners and flag-burners still burning, but in both cases, he liked letting governments crack down upon both behaviors even less.

    Third of all, my problem with Scalia is that he doesn’t acknowledge this. He doesn’t say that he’s making decisions that satisfy him, and in fact he has now gone so far as to propose a framework for the evaluations of judges: the good ones shouldn’t have “liked” all the decisions they make. We’re meant to believe that he hasn’t liked all of the decisions that he’s made. I find that notion laughable. In fact, I’d go so far as to say his comments look like code to me. The judges he’s talking about as being bad, he’s arguing, have liked all of their decisions. He means “liberal” judges or any other judges using anything other than his preferred framework. If they’d use his framework, after all, they wouldn’t “like” the decisions they were making. Hence, they’d be better judges. The side-effect would be Scalia getting what he wants from the law: a hugely conservative society that oppresses by means tolerated within his understanding of the Founder’s framework. Scalia’s not dumb. He knows what he’s doing. But he’s not going to say it out loud and so instead, he proposes advocates originalism or these silly rubrics.

    Fourth of all, I would have a much easier time being less cynical about the law (and about politics generally) if people were just honest about what they’re doing. I didn’t offer my write-up of Scalia’s work because I was being dismissive of him; I wrote his write-up because that’s what Scalia is actually doing. We could create the same write-up for anybody, anywhere. But perhaps in the spirit of fairness I can add one other thing. I encourage this level of honesty from our political participants because I believe that would change the political marketplace. I think people would be much less likely to give politicians the benefit of the doubt if they were actually, substantively honest about the things they were doing. I suppose I believe, perhaps naively, that an honest society would tilt more toward liberaltarianish outcomes given the inherent good I tend to believe exists in people. Conservatism, meanwhile, would have a much harder time (than it is already having, I suppose) if it acknowledged some of what appears to be its real goals.

    That was long, and perhaps this isn’t the appropriate thread, but you took the time to explain what you were hoping I’d done, so I wanted to give what I considered to be a fair reply. I know that there has been ill-will between us in the past – you’ve thought I paint caricatures of libertarians was the last issue before this current one – and I assure you that I do not want that to be the case. I also, as I stated above, don’t actually believe that would be the case if we met in person.Report

    • Avatar James Hanley in reply to Sam
      Ignored
      says:

      Do you have kids?Report

    • Avatar Pierre Corneille in reply to Sam
      Ignored
      says:

      ” I don’t think anybody makes decisions that they don’t like. Yes, getting a root canal is awful, but we get the root canal because the other option is even worse. ”

      The idea behind this statement strikes me as circular. I can imagine someone opting not to get a root canal and suffering the consequences. In that sense, he/she “likes” that decision, too. If carried too far, this notion means that we’ll have to say, “okay, everybody ‘likes’ their decisions, now we need to find a way to talk of decisions that they ‘really like’ or that they ‘really don’t like.'”

      At which point, we might devolve into other claims, such as “nobody makes decisions that they don’t ‘really like.’ ” After which, we can stipulate to that and then posit “really, really like” against “really, really don’t like.” Even in your comment, there are traces of going from “like” vs. “dislike” to “really like” vs. “really dislike,” when, for example, you mention Scalia “prioritizing his originalism.”

      Here, I suppose I’m adopting a rule of uncharitable interpretation myself. I think, from your post and from your comments, that you mean more to criticize Scalia’s grandiosity, pomposity, and proclivity to denigrate others’ modes of interpretation for doing what his does (in Pat’s words) “more or less routinely.”Report

    • Avatar Pierre Corneille in reply to Sam
      Ignored
      says:

      his looks like an academic paper in which an author is trying to be even and fair and reasonable. I want to acknowledge that immediately and at the outset of my response. I did my time (badly) in graduate school; I’ve written enough of those. I find writing like this unconvincing and anodyne, because it ultimately asks us to pretend as though we’re not human beings. (I find journalism of this sort unconvincing too.)

      What you say has some merit, and I’ve done a lot of time in grad school and have seen my share of “but we must approach the issue from the perspective of the implicated sub-alterns and within the thick framework as they are bound in the interstices of race, class, time, and sexuality. But as my distinguished colleague, who views things differently, suggests, the relations of subordination and domination also constrain the choices available to the super-alterns. ”

      But I’ve also seen my share of “my analysis is better than all others because because I use real empirical evidence,* dammit!,” albeit in more flowery language.

      I think there might be a happy medium. I will say that one advantage of the paragraph from James you are critiquing** is that it frames what Scalia said in a way that people who don’t already agree with you, or fully grasp what you’re saying, will recognize. By not making the appropriate concessions, however laden that practice might be in pathological academic, you get much of the pushback that you’ve gotten in this thread, and this push back probably looks to you as a refusal to address your argument, but at base that’s because we have latched on to the part of your argument that seems like a caricature.

      *The “appeal to empirical evidence” ought to be one of the classic fallacies. In my experience, when people say “I use empirical evidence,” what they mean (usually, there are exceptions) is, “my evidence is better than others’.”

      **And to be fair to James, I thought he was offering up what he thought an ideal “opposite-day comment” would be (in response to your offering of what your “opposite day” comment might look like) and not what he thought your OP argument should have said.Report

  9. Avatar Mike Schilling
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    says:

    And irony meters all over America explode, as Citizens United, the corporate person with the same rights as a human being, files an amicus brief with the Supreme Court favoring limiting the rights of human people. Technically speaking, it argues against reverse incorporation, a doctrine which applies the 14th Amendment standard of equal protection to the federal government as well as the states. Practically speaking, not only does this undercut one of the principle arguments against DOMA (which is, of course, their point), but it asks the Court to overturn Bolling v. Sharpe, which, as a sort of corollary to Brown vs. Board of Education outlawed segregated schools in DC. Clearly legalizing Jim Crow in our nation’s capital is a small price to pay for preventing Adam from filing a joint 1040 with Steve.Report

    • Avatar James Hanley in reply to Mike Schilling
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      says:

      Heh, linking DOMA to Bolling may be the best way to ensure a majority against it.Report

    • Avatar Kolohe in reply to Mike Schilling
      Ignored
      says:

      (fm the link:)”it would mean that Congress is free to set up its own Jim Crow laws.”

      I’ve been told this weekend,starting around here, that I shouldn’t be as concerned with Constitutional protections as I am.

      Since there is no way politically that Congress would actually bother setting up Jim Crow laws, why do I need to be worried about the slippery slope part of this brief? (I call it sufficient that I am on the other side of the DOMA issue as Citizens United appears to be).Report

    • Avatar Brandon Berg in reply to Mike Schilling
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      says:

      Citizens United, the corporate person with the same rights as a human being

      It’s almost as though it were impossible to complain about the Citizens United case without mischaracterizing it.Report

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