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March 04, 2005

originalism in constitutional law: three

Don Herzog: March 4, 2005

Another Crucial Warning:  if you read this post without reading part one and part two, intrepid leftist guerrillas will pour sugar in your carburetor.  I remind you that nowhere in this series am I objecting to originalism by complaining that it produces right-wing outcomes.  Nor am I complaining by urging that we need a living constitution updated to suit our times.  Nor am I urging that constitutional law is a cheat and we should grow up and concede that judges are inevitably legislating from the bench.  And yes, this post is too long.  But think of how relieved you get to be on learning it's my last word on this subject — for now, anyway.

Put on your originalist cap, now tattered or not, and turn back to our old friend the eighth amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This time, ask:  does the amendment ban wiring up people's genitals and administering electric shocks?  No conceivable set of framers or ratifiers thought the amendment meant that, because of course they didn't have electricity.  (Bonus points, if only for skill in forgery, for anyone surfacing historical evidence that they dreamt up the idea and commented on its constitutionality.  Pedant points for those brandishing Leyden jars.)

You can bite a bullet and say, nope, if they didn't think the language banned electric shocks to the genitals, then it didn't.  That bullet becomes an impossibly huge cannonball as you reflect on technological change and other constitutional clauses.  (And notice that technological change stands in here for all kinds of social change.)  I know of no one who accepts this reductio.

The alternative is to say that we move to a higher level of abstraction.  We must read the amendment as stating a general principle and ask if that principle properly applies to my gruesome example.  (Or, as some philosophers would put it, we ask whether their sense of the language properly refers to the new case.)  But, insists the originalist, it has to be their account of what's cruel and unusual, not ours; their value judgments, not ours.  Since 1958, the Supreme Court has regularly turned to "evolving standards of decency that mark the progress of a maturing society" in its eighth amendment jurisprudence.  (Lexis reports that they've echoed the original phrase in 52 cases, recently and controversially in appealing to a trend among the states to rule capital punishment for the mentally retarded unconstitutional — and more recently yet in Tuesday's decision in Roper, striking down the death penalty for juveniles, which makes it 53.)  The originalist wants to stop that kind of living-constitution talk at the starting gate.

But the facile contrast between our values and theirs breaks down.  The originalist's application manual advises:  survey the paradigm cases of cruel and unusual punishment at the founding and the relevant language about it; generalize a principle; see if the principle properly condemns shocking the genitals.  You might think that's an easy yes on any plausible account, but then you're just quibbling with my hypothetical.  I don't let my law students get away with that, and I won't let you get away with it either.  So if you don't like that example, think about this:  in the early 1700s, it was routine to nail people's ears to the pillory.  That practice seems to have fallen into disuse by the ratification of the constitution.  Let's suppose it was then deemed cruel and unusual:  we still have to figure out why it was.  When we survey the originalist materials, we have to decide what the central point or animating purpose or deep rationale is that unites their judgments about cruel and unusual punishment.  And sheer descriptive fidelity to the historical record won't do the trick:  we have to exhibit their principle as making sense, else it's odd to attribute it to them.  Suppose every practice they condemned originated in Birmingham or began with the letter j.  Suppose they even noticed and embraced that description.  We still wouldn't say that that was their principle.  When we test candidates for what their principle was, again, part of what we look for is descriptive fidelity.  But part of what we're doing is inescapably normative:  again, it can count as their principle if and only if it makes sense.  Don't bother ascending a level and saying, well, we should ask whether it made sense by their lights of how things make sense.  Because I'll ascend the level with you and point out that when you try to reconstruct their understanding of how things make sense, again you'll have to make some normative judgments.

So too on the other end of the application exercise.  You have to decide what finally matters about shocking people's genitals.  Is it the invasion of privacy?  The sheer brutality?  The physical pain?  The humiliation in front of others?  The trauma it leaves them with?  Some mix of those things?  Weighted how?  That too is a normative judgment.  No chance of wriggling away from it by asking, what would the framers or ratifiers think?  That just returns us to square one; that's what we're trying to figure out.

Here's another example of how these abstract difficulties frustrate the originalist enterprise.  Let's ask again, does the fourteenth amendment ban affirmative action?  Contemporaries' experience and discussion are all about state practices that use race in order to subjugate blacks.  In response, they brandish both color-blindness and antisubordination as weapons to destroy those practices.  Color-blindness says:  the state must ignore race, period.  Antisubordination says:  the state must not subjugate blacks.  No surprise that in his classic Plessy dissent, Harlan effortlessly ran the two principles together.

But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.  There is no caste here.  Our constitution is color-blind, and neither knows nor tolerates classes among citizens....

The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law.  What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens?

When the state starts drawing racial lines in an attempt to benefit blacks, the startling new practice drives a wedge between color-blindness and antisubordination.  It forces us to decide which principle the fourteenth amendment stands for.  (There are other possibilities, but the argument is complicated enough already.)  As a matter of descriptive fidelity, the original sources will support either interpretation.  Once you start seizing on one strand or another as central, you're inevitably — and appropriately — making a normative judgment of your own.

I don't want to overplay the point.  There is still a difference between asking, "does an original understanding of cruel and unusual punishment condemn electric shocks?" and asking, "do we think that that is cruel and unusual?"  But that difference is simply not the difference between their values and our values; it's a lot more complicated than that.  And now I'll add in passing that anyway there is a powerful textual argument against originalism.  The eighth amendment does not say "what we in 1790 think is cruel and unusual."  It says "cruel and unusual," full stop.  And I think it means what it says:  it refers to what actually is cruel and unusual, not to what people then or now believe is cruel and unusual.  Here textualism and originalism are profoundly at odds.  And then the "evolving standards" picture of the eighth amendment might not be wrongheaded at all.  It might simply mean, our best understanding of what is in fact cruel and unusual.  Yes, we could get that wrong, but we have to rely on our best judgment.  Try this:  your grandfather's will is opened; he wrote it eighteen years ago; he leaves you thousands of dollars and an instruction to buy the safest car available.  Do you buy the safest car available eighteen years ago?  No, of course not.  Now maybe constitutions should be read differently.  But it isn't obvious that they should.

We can now see another reason that a perfectly serious originalist might decide that a constitutional provision now bans something the framers and ratifiers thought it to permit, or permits something they thought it banned.  Plunk down our best reading of their principle in our circumstances, and it might well have different implications.  Couple it with the point I made in part two about the ubiquitous possibility of not seeing the implications of your own principles, and you lose more of the appeal of originalism, its alleged firm grounding.  For example, take a leaf from the constitutional convention itself.  Instructed to revise the Articles of Confederation, the delegates decided to rip it up instead and start from scratch — as a way to be faithful to their instructions.

In 1985, Justice Brennan told an audience at Georgetown,

Our amended Constitution is the lodestar for our aspirations.  Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked.  Its majestic generalities and ennobling pronouncements are both luminous and obscure.

Do you shudder?  In a 1947 Supreme Court opinion, "majestic generalities" referred to the fourteenth amendment.  You might shudder some more and think the Court was granting itself interpretive license.  "A recipe for activism!"  I don't think the Court should imagine it has a roving commission to strike down laws it disapproves of.  Since a 1924 dissent from Brandeis, members of the Court have repeatedly acknowledged it makes no sense for them to sit as a super-legislature or second-guess policy judgments.  Then too you might dourly suspect that Brennan didn't take constitutional law all that seriously.  What he said at Georgetown could have been crisper, that's for sure.  I dislike poetry in these matters.  But insofar as he meant to underline the difficulties and normative judgments that applying a legal principle from one historical setting to another so frequently involves, he was right.

Originalism doesn't replace our confusion with yesteryear's clarity:  remember that they were often divided, too.  Nor does it replace our values with theirs.  So it doesn't deliver the goods its champions advertise.  You're free to hold that nonetheless originalist arguments should be central in constitutional law.  Be my guest.  But don't pretend they'll gain you something that they won't.


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Tracked on Mar 4, 2005 12:59:57 PM


Posted by: Stephen M (Ethesis)

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted made me immediately think of the leftist types armed with sugar ... since I intended to read this even though I skipped the last two.

All in all, not bad. I do think it plays well with the concept of informal amendment of the constitution, though the real issue is the sense that some have that the various arguments you use are really ways to change the rules without going through "fair" steps.

You know the screeds, shadows of the constitution have more strength than the bill of rights (there being good policy reasons, the right of the people to obtain abortsions shall not be circumscribed -- isn't that what the second amendment really says).

On the other hand, I'd really rather not have the police hook me up to the electric wires after making me drop my pants.

Posted by: Stephen M (Ethesis) | Mar 4, 2005 8:24:29 AM

Posted by: D.A. Ridgely

From a recently discovered first draft of a letter from Benjamin Franklin to Peter Collinson:

In September 1752, I erected an Iron Rod to draw the Lightning down into my House, in order to make some Experiments on it, with two Bells to give Notice when the Rod should be electrified. A contrivance obvious to every Electrician.

I found the Bells rang sometimes when there was no Lightning or Thunder, but only a dark Cloud over the Rod; that sometimes after a Flash of Lightning they would suddenly stop; and at other times, when they had not rang before, they would, after a Flash, suddenly begin to ring; that the Electricity was sometimes very faint, so that when a small Spark was obtained, another could not be got for sometime after; at other times the Sparks would follow extremely quick, and once I had a continual Stream from Bell to Bell, the size of a Crow-Quill. Even during the same Gust there were considerable variations.

Later, upon repairing to dine with several good gentlemen of my acquaintance and men of affairs, I chanced to describe these experiments, together with my aspiration of containing the capacitance, as I have now come to call it, of the Electricity in devices such as those Leyden jars of which I wrote earlier, thus to avail it more readily to matters of practical import. Asked what such matters of practical import I had envisioned, I recalled the unpleasantness of my experience with the kite and key and suggested it might facilitate loosening the tongue of the obdurate criminal or spy more humanely than the cruel and unusual devices these days employed to similar effect. These good gentlemen readily agreed, but we sadly concurred also that only in a republic where men truly governed themselves could such humane practices be established and ensured.

Posted by: D.A. Ridgely | Mar 4, 2005 8:26:16 AM

Posted by: Simon


Is it possible that conservatives could be better originalists than liberals? That people whose philosophical development substantially ended with Burke would have a better set of intellectual tools to approach these sorts of questions than those who have internalized Mill?

(I'm only partially kidding when I ask this. One of the complaints you didn't spend time on, but that I think is quite serious, is the inability of contemporary commentators -- esp. lawyers who dip in and out of this stuff -- to grasp that the intellectual landscape of the late 1700s would be pretty foreign to us today.)


Posted by: Simon | Mar 4, 2005 8:30:45 AM

Posted by: Stephen M (Ethesis)

One other issue that comes up is the rather interesting trend, especially at the time of the 14th amendment, for the legislators to believe that the words meant what they turned out to mean, and that they would have to live with them. The recodification debates are interesting in that regards (as I learned researching original intent for 42 USC 1983 et al). The general belief was "yes, the law had an intent when it was enacted, but as we recodify, we know we will change up the words and we will end up having to live with or fix whatever the words mean." A definite textual intent that is too bland (I got scared of the sugar guys and went and read Post 1, and am commenting on it in context with this post).

I'm not sure where that attitude gets us, but it does put an interesting gloss on it all. (I realize my comment is closer to a defect reprise of http://left2right.typepad.com/main/2005/02/originalism_in_.html than a gloss, but such it is).

Though "Rape, buggery &c. punish by castration." He promptly added, "Laws thus proportionate and mild should never be dispensed with. Let mercy be the character of the law-giver...." does seem to indicate that just the wire treatment might be acceptable.

Interesting thoughts here.

Posted by: Stephen M (Ethesis) | Mar 4, 2005 8:36:37 AM

Posted by: Don Herzog

Simon, two things. I don't see any reason to believe the intellectual world of late 1700s America is more like Burke than like Mill. And anyway among the "lawyers who dip in and out of this stuff" are sitting judges. They're very busy. Their dockets are huge. They already have to figure out briefs and arguments and busily research the law. The originalist wants to saddle them with the additional burden of sorting out extensively historical materials. I think it's an unreasonable imposition.

Posted by: Don Herzog | Mar 4, 2005 10:34:11 AM

Posted by: Quibbler

Suppose every practice they condemned originated in Birmingham or began with the letter j. Suppose they even noticed and embraced that description. We still wouldn't say that that was their principle. When we test candidates for what their principle was, again, part of what we look for is descriptive fidelity. But part of what we're doing is inescapably normative: again, it can count as their principle if and only if it makes sense.

I don't understand the argument here. The reason we want a construal that makes sense is that such construals are descriptively more plausible, because all evidence points to these people being at least basically reasonable. That does not mean that OUR judgements of what makes sense have any bearing EXCEPT as evidence for a factual/descriptive claim about what in fact made sense to or motivated THEM.

There are funky arguments that all interpretation is normative---that to say "Bill said that it's raining" is to make a normative claim. But for one thing you certainly haven't established such a thing here, and for another it seems you're after more than something like that.

Posted by: Quibbler | Mar 4, 2005 11:04:48 AM

Posted by: miab

"And now I'll add in passing that anyway there is a powerful textual argument against originalism. The eighth amendment does not say "what we in 1790 think is cruel and unusual." It says "cruel and unusual," full stop. And I think it means what it says: it refers to what actually is cruel and unusual, not to what people then or now believe is cruel and unusual. Here textualism and originalism are profoundly at odds. And then the "evolving standards" picture of the eighth amendment might not be wrongheaded at all. "

An easier example is the first half of the sentence in question: "Excessive bail shall not be required, nor excessive fines imposed . . . "

In 1790, $1000 bail would probably have been clearly excessive in most circumstances. Are we bound by that $1000 limit?

If not, then what is the basis for saying that we are bound by the list of particular punishments that would be considered "cruel and unusual" in 1790? Or by the list of particular types of searches and seizures that would be considered "unreasonable" in 1790?

The constitution uses some words that refer directly to social norms, such as "reasonable", "well-ordered", "excessive." Isn't it true originalism to say that the ratifiers' original intent was *not* to create a list of forbidden punishments (they could have done that, but didn't), but rather to instruct legislatures and judges to look around them and see what is, at the time of judgment, usual or unusal, excessive or not excessive, etc.?

What makes Scalia feel the need to write the words "(as measured by usualness or unusualness in the United States on the date this constitution is ratified)" into the constitution after the word "unusual"? The words just aren't there.

Posted by: miab | Mar 4, 2005 11:39:52 AM

Posted by: Simon


A poor attempt at humor obscured my point. I agree wholeheartedly that judges in particular are in no position to do the sort of work originalism requires. My point, such as it was, meant to take the criticism one step further: shouldn't we doubt that lawyers today are capable of shedding the intellectual trappings of the 19th-20th-21st centuries, and the changes to fields like economics, philosophy, and even legal reasoning, necessary to internalize the legal & political views of the 1780s US? (I suppose I'm trying to echo Kuhn, perhaps with poor results.) I don't want ot argue that 1780s legal thought is completely unintelligable to us, but that the conclusions they (whether you want to define "they" as the writers, readers, or political masses) reached were a product of ways of thinking about the world that are not easily understood today. (Again, the modest form of this argument is not that people back then were irrational, just that they operated from a wildly different set of premises.)

My real complaint though is with the originalists, so I have a question for them: We know that originalism can't help on every (most) (some) hard cases. What, therefore, justifies using it only part of the time?

It seems to me that if you want to gain the benefits of originalism (mainly some sort of judicial restraint built into some kind of democratic legitimacy) then you really have to follow it /all the time./ And of course if you do that you end up with under-determinate gibberish.

So how is it that you decide when to use originalism and when not to? And is there a way to do so that isn't completely opportunistic?


Posted by: Simon | Mar 4, 2005 12:03:04 PM

Posted by: No Labels Please

I don't think in any of the three posts we have heard anyone support a 100% originalist interpretation. It's clearly not possible. Neither is a 100% textual interpretation, nor any other simple minded approach. And I suppose that most people would be upset with a court that ignored the original intent or the text completely in favor of contemporary personal or political opinion.

The reason this question incites so much controvery is that depepnding on the relative weight given to three three approaches [text, intent, current opinion] very different results will obtain.

No surprises here. What may be new is the rapidity with which society is "evolving" both socially and technologically. This places more pressing burdens and focus on the court's decisions, and makes it more difficult to be both relevant and faithful to the document record. However, there is a real danger that if the court moves to a completely real-time type of review, with no backward looking framework, that the inherent value of a historical constitution will be lost, and the separate functions of legislative and judicial branches smeared together.

I think you'll find the same problem with an institution like the Catholic Church...with the Bible being the text and the Pope and Vatican functioning [?] as the court of review.

Posted by: No Labels Please | Mar 4, 2005 12:44:20 PM

Posted by: Sebastian Holsclaw

There is actually a fairly good discussion on this topic going on ObsidianWings here and here . The best point is made by hilzoy who suggests the distinction you talk about and uses the example of poison. If you make rules about poison, and find out later that X is a poison, X is included in the rules about poison even if the original writers of the rule thought that X was good for you. All you need is a pretty good understanding of the word "poison".

This is clearly correct and very textualist. It is very easy to apply to scientific issues. It is not very easy to apply to society's ideas about societal issues like "fundamental rights" or "cruel and unusual".

The problem with applying the poison understanding to moral issues is that it isn't always super clear when something which was once not realized to be a poison now is. That is why in such cases you often see an appeal to societal consensus. We aren't talking about scientific facts here, we are talking about societal decisions. In Thompson v. Oklahoma (saying you can't execute under 16-year old defendants) the Court appeals to a societal consensus by suggesting that every single legislature which has specifically considered an age limit has set it no lower than 16. It makes sense to incorporate things that society generally agrees on. That case was decided in 1988. I'm not sure I totally agree with Thompson, but I see the appeal of suggesting that anytime a legislature bothers to think about the issue they seem to choose an age that doesn't allow for execution of 15-year old offenders. This week's extension is a lot further than that. This week's extension uses an appeal to consensus, but the consensus doesn't actually exist. Here, legislatures have specifically considered the topic and decided that 16 and 17 year old offenders can be executed in some specific cases. Here it is quite regular even in non-death penalty states to punish offenders in that age-range with whatever punishment is most severe in that state--suggesting that the diminished capacity argument is not a consensus opinion either. So what has happened is that the Court has taken a precedent that really had some strong evidence of societal consensus and applying it in case where there is not good evidence of a societal consensus.

The problem with non-scientific questions being resolved in the poison fashion is that it is tough to tell when the categories really have changed. It isn't science, you can't just say "clearly gay marriage is exactly the same as heterosexual marriage" because that is a societal choice, not a law of the universe. The reason we fight over amendments is to signify and then ratify large changes in societal choices. Sometimes the changes come quietly, and we can say that they represent a real fundamental right. The right to travel may be somewhat like that. The problem when you have neither an amendment nor a real societal consensus is that you appeal to the authority granted by one of those two things, but you don't actually have it. A Court can probably do that a number of times, but eventually the people begin to wonder what the Court is doing. Eventually you get a gathering consensus that the Court is illegitamtely using power on a regular basis. That is a serious problem because it undermines the Court's ability to vindicate all of the more explicit rights. By trying to push through too many non-consensus and non-amendment items, you end up endangering all the other rights which are more specifically guaranteed because the authority of the Court to enforce them has been damaged.

So your discussion about "cruel and ususual" appeals (properly I might add) to an actual societal consensus when talking about genital mutilation does not get you to actual decisions like the recent one about executing somebody for a murder they committed at 17--because there is no societal consensus on the issue.

A textualist doesn't have a problem with reading the text, getting a normal understanding of the words (as written at the time) and applying them to modern-day situations. You have drawn 'originalist' very narrowly--seemingly excluding people like Scalia and Bork--so perhaps this doesn't technically apply to your argument. You also haven't drawn a sharp intent/meaning distinction. There are very few original intent jurists. There are many more jurists who try to stick to original meaning.

Posted by: Sebastian Holsclaw | Mar 4, 2005 12:52:52 PM

Posted by: john t

Sebastian Holesclaw, The original use of the analogy on poison was used by Justice Joseph Story in his Exposition On The Cocstitution. "A man may be allowed to keep poisons in his closet;but not vend them as cordials". This in a discussion on Blackstone and the US Bill of Rights. He then quotes Blackstone directly"So true will it be found,that to censure the licentiousness,is to maintain the liberty of the press". Yes he was talking about the 1st amend which doesn't make it irrelevant to your usuage but might address a need to expand libel laws. Ooops I steped on our most precious freedom.

Posted by: john t | Mar 4, 2005 1:54:46 PM

Posted by: Tad Brennan

It is surely possible to think both
a) the justices were following legitimate principles of constitutional interpretation last week,
b) as a matter of fact, they screwed up their own application of those principles.

I think I may be agreeing with SH here: we can say *both* that it is legitimate to appeal to current consensus in fixing the current reference of the phrase "cruel and unusual", *and* that the justices simply got their facts wrong about what the current consensus is.

We could thus also craft a dissent that would not look for any deep methodological bone to pick; it would grant the relevance of consensus, while denying that any consensus currently obtains.

Posted by: Tad Brennan | Mar 4, 2005 2:01:22 PM

Posted by: Chris

I applaud the sensitivity to Frege on sense and reference, and lots of what Don says here is sensible. Let me also put in a plug for Mill on connotation and denotation, or Carnap et al. on intension and extension. I think we are bound by the original intension expressed by the constitutional language: that is, the original function from possible worlds to outcomes. But because the world can change, we are not bound by the original extension of the constitutional language: the original expected outcomes themselves.

I don't think that Don quite describes the way an original-sense thinker like me would go about things, though. He says,

The originalist's application manual advises: survey the paradigm cases of cruel and unusual punishment at the founding and the relevant language about it; generalize a principle; see if the principle properly condemns shocking the genitals.

That's not quite what I would do. I would try to figure out what sense was expressed by the constitutional language: what function from possible worlds to outcomes the text expresses. One way to do this would be to figure out what paradigm cases--what original referents--the framers had in mind. I would then work backward to see what sort of function, given what the framers thought about the paradigm cases, would yield that outcome. This will be much easier to the extent that the framers explained their textual reading. I wouldn't just "generalize a principle." I would look for a principle expressed by the text that could, in light of the reference-yielding facts as the framers saw them, yield the original referents as the framers saw them.

We needn't necessarily make sense of the framers from a moral or normative point of view; we need to understand how they thought that their text could yield their expected outcomes.

Don says,

You have to decide what finally matters about shocking people's genitals. Is it the invasion of privacy? The sheer brutality? The physical pain? The humiliation in front of others? The trauma it leaves them with? Some mix of those things? Weighted how? That too is a normative judgment. No chance of wriggling away from it by asking, what would the framers or ratifiers think?

I don't think we need to ask what matters morally, so much as what matters textually. We don't want to know why the Framers thought a particular punishment was a bad one; as interpreters, we want to know why they thought a particular punishment fell under "cruel and unusual punishments."

I agree that the text says "cruel," not "what we think is cruel," but this isn't inconsistent with a form of originalism about sense/intension/connotation. Later changes in the word "cruel" don't matter, because it's the original sense that counts. So I don't think that, as Don says, "textualism and originalism are profoundly at odds," unless we are just talking about a reference/extension/denotation-bound originalism like Raoul Berger's.

Maybe my sort of Euclidean originalism doesn't deliver what some originalists advertise, but I think the problem is mainly with the advertising, not the product.

Posted by: Chris | Mar 4, 2005 2:12:25 PM

Posted by: Stuart

I have read all three parts, but not most of the comments, so forgive me if this has been dealt with before.

What Don is missing here (well, one thing - there are a few things he glosses over in what I have to say was mainly a well written piece) is the premise that underlies judicial review. Back in the case that started the practice of judicial review, Marbury v Madison, the reason given for the Supreme Court being able to find that something was unconstitutional was that the Constitution is a writing, pretty much the same as a contract or a will. Since courts read contracts and wills all the time to figure out what they mean, there is no reason they can't also look at the Constitution to figure out what it means, when the question of its meaning presents itself in a lawsuit. (Or at least that's my memory of the case from back in law school.)

Relying on the fact of a written constitution as the justification for judicial review presupposes that the writing has a discoverable meaning. The meaning won't necessarily supply an obvious answer in each case. But it does have a meaning. If the meaning of the constitution was meant to change over time (as opposed to the application of the meaning), then there would be little purpose to writing down the words, right? The whole reason to write words down is to supply a constraint on the permissible range of outcomes. That's why the original meaning - I call it "original concept" - argument (different from original intent) is so convincing. The people who drafted and ratified the Constitution wanted to address certain issues certain ways, and had a general idea in mind, and they wrote it down.

Writing it down isn't a necessary component of constitutional government: the UK runs just fine without a written constitution. But once you proceed from the premise that our constitution is a written one, and accept that the courts construe it because courts construe written documents, what that leaves you with is that the court construing the document is constrained by the words of the document itself and what general ideas the people who wrote the document were trying to address. Unmooring constitutional construction from the ideas of the framers who wrote the words is thus anti-constitutional, and empowering judges to do anything other than figure out how the words apply to the case before them is equally anti-constitutional.

Let me give an example of how reading the words has to be constrained by the range of concepts the framers had. "Virtual" meant, until recently, "almost" or "pretty much but not quite 100%." Nowadays it also means something along the lines "existing in computer land." The latter meaning is not merely an application of the "almost" concept, it's a change of concept. If you see "virtual" in a document drafted in 1869, you know it's not a computer reference.

Which brings me to Don's post. What were the framers aiming at in the eighth amendment? It was tyranny, raw government power, infringement on liberty. "Excessive" fines, "unreasonable" bail - these were constraints on discretion. The ban on cruel and unusual punishment should be viewed as being of the same ilk: it's a constraint on discretion. We can argue over whose discretion is being confined (ranges of fines are fixed legislatively, bail is usually fixed by judges) - in the case of cruel and unusual punishment I'd say it's probably both legislatures and courts, but in either event the issue is simply whether the punishment being meted out is within the range of discretion, which means we are talking here about ranges of proportionality. That would get rid of issues about jailhouse conditions or juvenile executions as 8th amendment issues, and leave them to legislatures. On the other hand, it would permit review of "three strikes" laws. It probably also would permit a legislature to pass corporal punishment laws, so long as they weren't disproportionate to the crimes (I doubt most of the country's states would adopt such laws anyway, but I don't think there should be a constitutional problem with it - some questions are political, not legal). So if you're asking whether legislatures can allow convicts to be placed in the stocks, my answer is "yes." Whether that's a good idea is a different question.

The same general approach can be applied, sensibly, to most constitutional questions, if you take seriously the proposition that words have meaning, and that because words have meaning, courts get to divine it because that's what courts do. Due process means no summary deprivations, equal protection means everyone gets the same rights, and so on.

One day I'll post about the concept of "fundamental" rights, and what the word "fundamental" means. But for now, back to work.

Posted by: Stuart | Mar 4, 2005 2:18:04 PM

Posted by: Tad Brennan

Stuart--thanks for your post.

'in either event the issue is simply whether the punishment being meted out is within the range of discretion, which means we are talking here about ranges of proportionality."

that sounds plausible so far.

"That would get rid of issues about jailhouse conditions or juvenile executions as 8th amendment issues, and leave them to legislatures."

How does that follow? Why wouldn't the court be within its rights to say that the execution of four-year-olds for spilling their milk at the table is not within the range of legislative discretion? Or even the execution of four-year olds for homicide?

I'm just pushing Mona's line here: surely the court would be within its rights in declaring the execution of N-year-olds "cruel and unusual" for some small N. Granting that, it seems to me that they were not overstepping their constitutional prerogatives in saying that N=17. One could still say, with Holsclaw above, that their argument contained a factual flaw, in claiming to reflect a consensus that does not exist. But there would be no reason to charge judicial activism, or to say that juvenile execution was not an 8th amendment issue *at all*.

Posted by: Tad Brennan | Mar 4, 2005 2:53:03 PM

Posted by: David

Chris says: "I don't think we need to ask what matters morally, so much as what matters textually. We don't want to know why the Framers thought a particular punishment was a bad one; as interpreters, we want to know why they thought a particular punishment fell under 'cruel and unusual punishments.'"

One point worth making is that the word "cruel" expresses, if anything, greater moral substance than "bad." To say an act is cruel is to speak to the morality of the act. To say something is bad could mean, among other things, that I just don't like it--that I personally prefer that it not happen. Anyway, my point is that, at least with the word "cruel" in the 8th Amendment, deciding what matters textually *is* deciding what matters morally. If we want to know why they thought punishment X was cruel, then we want to know something about their moral positions on punishment. I'm not saying that being "cruel" entails being "morally unjustified," but it seems to entail something like that.

But, I don't mean to make too much of such a small part of your post, Chris. Veiwing your post as a whole, you seem to acknowledge the complexities of this issue, and I'm sure you didn't expect those two sentences to capture your position perfectly. I just wanted to point out how difficult everything becomes when we use moral terms, like "cruel." Few people have some articulable theory of punishment with which they clarify what they mean by "cruel." They may have some opinion about particular punishments in specific contexts, but principled theories regarding the ethics of punishment are not commonly held--in my experience. So, I don't know how much hope there is in trying to determine how the term was understood collectively (by Drafters or Ratifiers), or how that term could yeild their expected outcomes. It's better, for many reasons besides practical difficulty, to just think as hard as we can about the morality of punishment and come up with our best understanding of "cruel."

Posted by: David | Mar 4, 2005 3:04:26 PM

Posted by: David

For the record, I am a different David that the recent poster on Million Dollar Baby. I guess I should label my posts more distinctively if I want to have some kind of identity on this site.

Posted by: David | Mar 4, 2005 3:06:39 PM

Posted by: Justin

Sebastian, you realize you're talking about the Brown and Williams case, right?

Posted by: Justin | Mar 4, 2005 3:08:23 PM

Posted by: Justin

Yes Stuart, you should go back and read the comments in section 2.

Posted by: Justin | Mar 4, 2005 3:09:17 PM

Posted by: Chris


I agree that if "cruel" expresses a moral concept, then we need to understand morality to fill in the reference-yielding facts. I'm not sure it does, though. To me, "cruel" means something like "causing a lot of unnecessary pain," and that the framers probably agreed, but I'd need to do the relevant historical work to be sure.

Our chief task as interpreters is to make sense of how the framers thought that their text managed to pick out their referents. That may, in particular cases, require a moral assessment, but not in all. For instance, I think that understanding the extension of the privileges or immunities clause of the Fourteenth Amendment requires a legal-sociological examination of the privileges and immunities that are generally enjoyed by citizens in the United States. We need to make sense of these facts in order to see how the framers used the language of the Fourteenth Amendment to refer to particular things. Reference-yielding facts are sometimes moral facts, but not always.

Posted by: Chris | Mar 4, 2005 3:19:18 PM

Posted by: Justin

Stuart, two other points:

1) I'm not sure what you mean by proportionality, and I'd like you to further that discussion so I can see your overall logic.

2) I may have to wait till you reply to point one, but my initial hunch is that you are making a judgement between multiple interpretations for reasons that cannot be tied to the central thesis of originalism....in a sense you are making a value judgement. That's fine, but its evidence that originalism does not require the end of value judgements even to the honest originalist, thus proving Don's point.

Posted by: Justin | Mar 4, 2005 3:21:53 PM

Posted by: Stuart

Justin I have to run now so I can't post a lot here, but I think originalism does require value judgments, it's just that the judgments have to trace back into the words of the constitution within the range of meanings those who drafted and framed would have assigned to them.

Posted by: Stuart | Mar 4, 2005 3:54:33 PM

Posted by: D.A. Ridgely

Just to confuse matters further, a few random thoughts.

Though I took pains in an earlier post to distinguish between what the Supreme Court is called to do in constitutional interpretation from routine judicial activity, their roles are not entirely dissimilar, either. Take contract law. Once upon a time we had what we call the ‘subjective’ theory of contracts – judges faced with interpreting a contract (or purported contract) were supposed to determine whether and in what respects there was a “meeting of the minds” of the parties to the contract at the time it was created (or failed for some reason to be created.) This seemed all too difficult and psychologically murky for a new breed of robustly empiricist type legal scholars who managed to persuade the profession to adopt an ‘objective’ theory of contracts. Now judges were to determine what “reasonable, prudent persons similarly situated to the actual parties would have understood their actions (and language) to signify, intend, etc.” Much better, yes?

Well, no. It does solve the “intentional stance” problems. (Or does it? Is it really all that difficult to determine what someone actually thought? Was the legal profession frozen by philosophical perplexity over “other minds”?) On the other hand, who the hell is a reasonable, prudent person? What counts as being similarly situated? Gosh, I guess we’ll let the same judges who couldn’t be counted upon to make reasonable evidentiary decisions subjectively develop the metrics of objectivity!

Meanwhile, back at the ranch, no matter how much we think we might prefer the law to be a strictly formal system (and, believe me, we really don’t!), it isn’t. Back to Frege for a moment (who, after all, was a mathematician and philosopher of logic and would have rolled his eyes at all the psychologism going on in these comments – including some of mine!), it’s all well and good to say that we can figure out whether “X is a prime” for any X where the range for X is positive whole numbers.

But that won’t do at all for anything as inherently fuzzy as the law. In fact, it won’t do for very much other than mathematics and logic (and maybe not even there … how would we answer someone who asked if Aleph-null was prime?) Moreover, the problem isn’t entirely because normative judgments come into play (although this should not be taken as a disagreement with Mr. Herzog.)

On another thread, Ms Anderson has folks discussing, inter alia, whether “Million Dollar Baby” is a misguided brief for assisted suicide. How, pray tell, will they be able to settle this question? What will count as evidence? (E.g., would it matter if the original story differed from the screenplay? If a scene in which Swope discusses her desire to die in greater detail was cut because it detracted from the dramatic flow? If Eastwood intended it to be ambiguous?) If we can’t decide the ‘meaning’ or ‘original intent’ of a first-run movie with any degree of legitimate confidence (and I assert we cannot), what do you suppose the odds are of our managing the same with “cruel and unusual”?

Posted by: D.A. Ridgely | Mar 4, 2005 3:57:15 PM

Posted by: Justin

Well then, Stuart:

a) I don't think your interpretation of the 8th amendment does that, though you're going to have to elaborate because I'm not sure about the proportionality point. It seems instead that you think the framers had in mind the interpretation that best coordinated itself with radical majoritarianism, something that I'm pretty sure the framers, concerned with centralized power over individual rights, would NOT have supported.

b) I'm not sure, even if you were trying to be faithful, that it would get you very far on a vareity of questions already dicussed in previous comments. To the degre that what you are really supporting is structuralism (that is, to interpret the Constitution you should examine what the framers were trying to say about the coordination of actors and the division of policymaking amongst the several branches and the states), I completely agree...but that's not originalism, and how that gets you to Scalia is beyond me. If all originalism is, is structuralism that comes to the conclusion that whatever Congress (or the States) say is law is law, then I think that's wrong on factual grounds.

Posted by: Justin | Mar 4, 2005 4:01:13 PM

Posted by: Chris

D.A. raises the question of fuzziness and vagueness related to Frege.

I think that vagueness in the law should be reduced, like vagueness elsewhere, to (a) ignorance and (b) intermediacy or the partial application of a predicate. It's possible that there is a line somewhere, though we don't know exactly where; it is also possible that there are intermediate cases of partial application of language to a particular case. If we are ignorant about the Constitution, we should then admit it, not make up an answer on some other basis. Gary Lawson also has some ideas. For partial application of language to particular cases, baby-splitting rules like those discussed in Calabresi & Melamed's article would probably help.

Posted by: Chris | Mar 4, 2005 4:17:55 PM

Posted by: David

Chris, not to be difficult, but when you say "causing a lot of unnecessary pain," what do you mean by "unnecessary"? Necessary to do what? It seems to me that the amount of pain that is necessary in the context of punishment could be (at least) two things: the amount of pain either (1) necessary to do justice, or (2) necessary to effectively deter other like crimes. With regard to the first meaning, we still have to reach a conclusion about what justice requires. Regarding the second meaning, apparantly we only need empirical information regarding the deterrent effect of specific punitive practices. But, if by "unnecessary," we use the second meaning, then I don't think we can say "cruel" means "causing more pain than necessary." That is, surely it would be cruel to cause pain to an innocent person even if it would deter crime (for instance, if we just gave the impression to the public that he is not innocent, even though he is). If we want to avoid cruelty, we want to know if we're morally justified in inflicting pain on the person to deter criminal behavior. I just don't see how we can avoid moral analysis when we examine the cruelty of a particular act. But, I suppose people can give any meanings they want to the word "cruel," some of might be amoral. But, common usage seems to have a moral quality.

Posted by: David | Mar 4, 2005 4:23:15 PM

Posted by: Chris

Hmm. I was thinking more of inflicting a lot of pain for its own sake, i.e., not just pain that results as a necessaary product of doing something else. But again, I'm not sure about it, without doing more historical work.

Posted by: Chris | Mar 4, 2005 4:33:00 PM

Posted by: D.A. Ridgely

Chris writes “If we are ignorant about the Constitution, we should then admit it, not make up an answer on some other basis.” I don’t want to read more into that comment than was meant (Oh, oh! Another interpretation problem!), but part of the problem is that somebody must decide. That’s what courts do: they decide actual cases or controversies, and like PBS (except in this case it’s true), if they won’t do it, who will?

I don’t know how far we can get, by the way, dwelling on sense / reference or connotation / denotation, etc. in this sort of problem. (Did anybody mention type / token? No? Okay, I get to be the first, then.) If legal reasoning is ‘fundamentally’ anything, it is analogical. “Hmmm, this situation X is similar to situation Y but now Z is an A instead of a B. Is that important? Should it be?” That’s what learning to “think like a lawyer” is largely about; not syllogistically applying major premises to minor premises or fretting over whether “genital shocking” satisfies the Fregian unsaturated concept predicate “___ is cruel and unusual” such that the entire proposition refers to the True.

But, necessarily (in a contingent sense), the Supreme Court takes those cases and only those cases in which we all are ignorant or the application of the predicate is indeterminate. And the Court can’t just say, “Damn! Too tough for us!” They are called to make a decision.

Most of the time most of the cases that come before most courts actually are pretty close to syllogistic no-brainers. (Thank goodness!) And most of the time even the whackiest of Supreme Court decisions are defensible in terms of the rules by which lawyers and judges play the game. (I think I disagree with Mr. Herzog in his apparent claim that there are no exceptions here.) The problem, really (at least to me), is that we now have no viable way of reining in the Court short of constitutional amendment (the real ‘nuclear option’) where the Court’s ‘big stick’ (“We hold that X is unconstitutional.”) so offends the prevailing body politic that it should not politically be permitted to stand.

Now, I think that’s a real problem requiring a real solution, though I admit that any solution I’ve ever considered would have its own attendant problems. But I despair of any legal theory of judicial deliberation and decision making that would, itself, solve the problem.

Any suggestions?

Posted by: D.A. Ridgely | Mar 4, 2005 7:11:10 PM

Posted by: Don Herzog

Mr. Herzog is entirely pleased to continue his surprising track record of agreement up and down the line with Mr. Ridgely by reporting that there are for sure Supreme Court decisions that are out of line and indefensible.

Mr. Herzog also regrets to report that Google has taken some of the fun out of the world, but hats off anyway to Mr. Ridgely for artfully weaving together his own Franklinesque invention with an actual letter from the great man.

Posted by: Don Herzog | Mar 4, 2005 7:33:46 PM

Posted by: Chris

What Gary Lawson says we should do in the cases of ineliminable ignorance about the Constitution is roughly to require knowledge in order to make an assertion of authority. If we don't know that the Constitution forbids something that a state wants to do, then the state should be allowed to do it. If we don't know that the federal government is authorized to do something, it isn't authorized to do it.

Posted by: Chris | Mar 4, 2005 9:46:01 PM

Posted by: Katherine

"The problem with non-scientific questions being resolved in the poison fashion is that it is tough to tell when the categories really have changed. It isn't science, you can't just say "clearly gay marriage is exactly the same as heterosexual marriage" because that is a societal choice, not a law of the universe. The reason we fight over amendments is to signify and then ratify large changes in societal choices."

Yes, but Scalia has argued all along that their views bind us because they tell us the MEANINGS of the words written into the document. They aren't, and you've conceded it: they are questions of application. If those are questions of application, and not meaning, you have no basis any longer for saying they wrote them into the document. All you have is your unsupported assumption--based on nothing in the document--that they must have intended to bind us to those applications. That's INTENT, not MEANING, just to beat people over the head with it.

I mean, of course you get clearer answers if you apply the Virginia penal code instead of the phrase "nor cruel and unusual punishments." But your decision to apply the Virginia penal code is itself as arbitrary and subjective as whatever current judges will come up with.

The article I was trying to get you to read addresses precisely this question, and addresses it in some detail. I'd be happy to email a copy if you don't have Lexis you can use for recreational reading. This IS the distinction I've been trying to convince you of all along, but I obviously failed to get it across at all. (I don't think it explains the right to privacy cases or anything.) Whereas hilzoy's having more success and I think those authors might have still more success.

Posted by: Katherine | Mar 4, 2005 10:08:04 PM

Posted by: Katherine

"If we don't know that the Constitution forbids something that a state wants to do, then the state should be allowed to do it. If we don't know that the federal government is authorized to do something, it isn't authorized to do it."

This corresponds very neatly with conservatives' policy preferences of course, so neatly that some might accuse them of being results-driven.
To make matters worse, they argue that when it comes to foreign affairs, anything that isn't explicitly delegated to Congress resides in the Executive. I think this is where John Yoo gets his crazy, scary version of originalism, though I don't think it has to be quite that scary or crazy.

Posted by: Katherine | Mar 4, 2005 10:13:24 PM

Posted by: Katherine

"I don’t know how far we can get, by the way, dwelling on sense / reference or connotation / denotation, etc. in this sort of problem."

The reason I dwell on that is that Scalia & his merry band don't understand there is a crucial difference here, and this leads them to erroneously believe that the binding "original meaning" of the "clear text" of the Constitution decides many, many, many more cases than it actually does, which is driving liberals to go on and on about the "living Constitution"...also: many of the originalists, including Thomas and a lot of the younger crowd, are increasingly willing to argue that they can and should just overturn any precedent that conflicts with the "clear text" of the Constituion. If they get a majority on the Supreme Court (not impossible; Bush will probably appoint 3 justices, and Scalia is getting so angry with O'Connor and Kennedy that his head may explode) before someone corrects this conceptual error (not that it's likely to actually convince them, they can be pretty doctrinaire) watch out.

Posted by: Katherine | Mar 4, 2005 10:45:00 PM

Posted by: Sebastian Holsclaw

Please feel free to email it to me. I would have emailed you this request, but the last 3 or 4 times I've tried, it has bounced.

Posted by: Sebastian Holsclaw | Mar 4, 2005 11:01:48 PM

Posted by: D.A. Ridgely


Your links took me to a log-in page, so I can’t comment on the merits of the authors’ work you cited. Again, however, I can’t help but wonder what keeps someone from asking “Well, how do you know?” I hope the answer is somewhat more useful than a Platonic “true belief with an account.” Anyway, I haven’t been attempting to argue that there are not many cases in which it is reasonable to say “I know the Constitution forbids (or permits by being silent) X,” only that there are too many cases where it isn’t so clearly reasonable to make such a knowledge claim and that I have grounds to believe that no legal theory purporting to give an objective answer to those cases will prove satisfactory.


Apropos of your last two comments, perhaps it is worth stating that my policy preferences are libertarian, so I am frequently opposed to the overwhelming majority of Court decisions (and Congressional legislation and Executive actions) on grounds that I don’t think they should be doing any of it. I’m thus one of those scary folks Untenured Republican mentioned earlier, I suppose. (Well, at least one of the virtues of tic-tac-toe over Dungeons & Dragons is that there are far fewer rule disputes!) I mention this only because I don’t think the answers, such as they are, fall one way or the other because of a political agenda, whether hidden or not. I find much of contemporary liberalism (and contemporary conservatism) both scary and crazy, but I’ve learned to cope quite well despite that fact.

Finally, if you think correcting anyone’s “conceptual errors” on either side of the fence will prove effective, well, good luck.

Posted by: D.A. Ridgely | Mar 4, 2005 11:04:22 PM

Posted by: razor

What I wanna know is, how could the judicial power NOT do what it has done, without, violating its "underdetermined" constitutional duties?

And, broader than Kramer's claim, why is the Supreme Court limited to the written constitution, aside from the compelling reasons I identify with Mr. Ely? Certainly, this "a priori" constitution was believed in, and, the written constitution repeatedly reflects this belief? And, what is more "conservative" than this belief in the unwritten constitution? It certainly better reflects the man on the street view of the constitution.

Finally, randomly, where is the integration clause in this written constitution, the seal of the prophets? Doesn't exist in my copies. Who are the originalists - and others - to impose such a clause based on their post 1789 political theories?

Posted by: razor | Mar 4, 2005 11:49:48 PM

Posted by: Stephen M (Ethesis)

A textualist doesn't have a problem with reading the text, getting a normal understanding of the words (as written at the time) and applying them to modern-day situations.

The real issue is whether or not, looking at the words and the situation, the opinion is clearly a change or not. If it is a change, it is pretty clear that someone is changing the rules based on their concept of evolution in society, not necessarily shared. That leads to a sense of arbitrariness.

I know, I've simplified it down. But if you talk to the "man on the street" -- those governed by statutes kept on top of pillars that they can not see (to use a figurative example from legal history), they understand the concept very well.

A constitution is a ground set of rules. Are we changing the rules or not? Most originalists and textualists, however you define them, are really resisting having Courts change the rules.

At the end of the day, is there a perception that the Court has acted like a referee in a game and called one side or the other out of bounds, or has the Court changed the rules "for the good of the game" so to speak?

I'm queasy about imposing the death penalty, but the recent ruling was a change, not a preservation. The biggest, dividing cases that most of the "originalists" object to are all acknowledged as changes in the social covenant, not preservations of it.

Make me a constitutional interpretation argument that is based in preserving the social covenant found in the constitution, and I'll have more respect (and, that is something that can be done with the electric encouragement or the nails in the ears -- most people on the street would see that has preserving rather than changing).

Yes, that sometimes just means that the Court waits another 2-3 generations, but it is honest.

Consensus? I'll bet if you did a poll, probably 80% of the population would feel that a 17 year old who looked for someone to rape, torture and murder did deserve the death penalty. The same for the famous sniper (who, quite frankly, looks to me like someone who was overreached by the adult in his life, but that is another story). Is the Court really going to go with the true majority consensus of the people -- or something else, drawn from alternative culled sources. And, heaven forbid, do we really want a Court that rules dependent on public polling. Arghh.

Anyway, no, I don't want many laws that have been struck down. But I admit that I cringe at rhetorical attacks that founder upon simple, direct perceptions. The bottom line is whether or not the Court is violating the social compact and that depends on whether or not the Court is seen as engaged in changing or preserving the "real" rule of law.

Which is an aside to the question about whether or not the law deserves to be preserved or needs changing or how much stare d we can take (I'm glad of the second Brown v. Board of Education, but then I'm not wedded to the theory being discussed, but I feel that you haven't given it a fair shake, even if it has some pretty harsh flaws).

why is the Supreme Court limited to the written constitution

The perfect summation question. After all, shouldn't the nine just sit as a super legislature, doing what they darn well please?

As for Dungeons & Dragons, the founders are still with us and available to discuss original intent, with Tic Tac Toe they aren't. ;)

Posted by: Stephen M (Ethesis) | Mar 5, 2005 1:02:37 AM

Posted by: Stephen M (Ethesis)

Rather than going on about the "living Constitution," those who wish to debate the originalists ought to seriously consider discussing things in terms of the social contract.

Of course that means slower rates of change, but honest ones as well.

Posted by: Stephen M (Ethesis) | Mar 5, 2005 8:58:05 AM

Posted by: Chris


Sorry about that. The citation for the first article is Lawson, Legal Indeterminacy: Its Cause and Cure, 19 Harvard Journal of Law & Public Policy 411 (1996). As I read him, Lawson uses "indeterminacy" to mean "ineliminable ignorance." The second article is the classic Calabresi and Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972).

While I'm on the subject, let me put in a plug for the wonderful service Hein Online. If you can, get your libraries to get it today!

The reason I was talking about ignorance was in order to present a brief sketch of my theory of vagueness, which I would reduce to (a) ignorance and (b) partial application of predicates. I did that in order to defend my use of Frege, whose theories of sense and reference have a sharpness requirement; D.A. referred to "fuzziness" in disparaging my use of Frege, which I took as a reference to vagueness.

Posted by: Chris | Mar 5, 2005 11:38:41 AM

Posted by: razor

As is evident from by far the greatest work ever on the judiciability of the second Constitution of the American States, Democracy and Distrust by John Hart Ely, there are MANY reasons that a Court of 7 or 9 or a packed 11 MUST not sit as a super legislature. The charge it does just evades the issue, typically by people unwilling to face the issue.

Part of the problem with "originalism" is that I have yet to see a case that lacked for "ineliminable ignorance" because such cases do not exist among mankind. Go to your local small claims court.

What do some of you think that the judicial process is about? It is about getting a handle on the unlimitless supply of ineliminable ignorance when decisions still have to be made to resolve conflicts. The Anglo-American common law process has done a superb job of getting a handle on this problem. One of the many sins of originalism is that it just ignores this problem, in favor of a tradition and a philosophy that are post 1776 European takes on law. Any suggestion that these inherent problems can be eliminated when the judicial power is applied to the constitution are at the root serious only about their proponents desire for power to do what they want. The scandal of the day is the assault on the judicial power, which, the whole "originalism" scam is part of. In all my copies of the Constitution, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." It is about time for the Executive and the Legislature to stop trying to be a Super Supreme Court and mind their own damned business.

I say debating originalist is a mistake because originalism flunks the test of debate worthy, for some of the reasons listed in these three posts. Originalism cannot be, even, if we had a written document which ordered we pursue originalism, which we don't. I assume that is the point being argued here.

Finally, Supreme Court members are elected, for fixed terms, being mortals, anti Court propaganda, rooted in modern times in the destruction of segregation, notwithstanding. What they are not subject to is re-election. Majority rule isn't as clean as the anti Court propaganda has it. Certainly, for example, the impeachment of Mr. Clinton was not a reflection of majority rule.

Posted by: razor | Mar 5, 2005 12:58:16 PM

Posted by: noah

I rather like Stuart's "original concept" theory of constitutional interpretation...to me it is logical, coherent, and unburdened by excessive references to what (to me) are abstract terms such as "normative". So it is an ideal "story" of constitutional jurisprudence for the populace...unfortunately since SC decisions don't seem to follow anything like Stuart's paradigm...to tell the "story" in that manner seems more likely to foment revolution rather than acceptance. Shucks.

Posted by: noah | Mar 5, 2005 2:19:01 PM

Posted by: noah

And BTW if something like Stuart's theory had been the dominant theory of constitutional interpretation since the founding we would now have a huge body of precedent as to what those "concepts" are and how they apply to changing circumstances.

Posted by: noah | Mar 5, 2005 2:46:28 PM

Posted by: noah


How does the imperfect justice of the small claims court have any thing to do with broad applications of constitutional principles by the Supreme Court?

Sounds like to me you are happy with the Court so everyone should just go away. Brings me back to my "whose ox is being gored here" theory of just about everything to do with politics and law.

Posted by: noah | Mar 5, 2005 3:08:42 PM

Posted by: Katherine

this goes over some old ground, but...

The more I think about it the more it IS like contract law. In addition to originalism/non-originalism, the key debate, re-cast in contract law terms is:

Is it ever acceptable to do a purposive, as well as a literal, reading of the Constitutional text? To what extent is it acceptable?

There are "strict constructionists" who would claim the answer to this is "no." But anyone honest has to realize that sometimes the answer is "yes."

This is least controversial when it comes to areas of technological change. The protoptypical Con Law class example is that no one reads the clause authorizing the formation of an Army and a Navy, and concludes that the federal government lacks the power to establish the Air Force.

Another obvious example where technological changes forces you into a purposive reading is the Second Amendment. Assume you've accepted a constitutional challenge to the federal assault weapons ban. Staunch gun control supporters might argue that "the right to bear arms" should be applied only to the "arms" available in 1789. This seems very silly to me, and I think it's fair to say to most of us. Hard-core gun-rights people might argue that, since "the right to bear arms" applied to all weapons available in 1789, it ought to apply to all weapons available today. This seems even sillier to me because if logically extended it leaves you with a right to own nuclear, biological, and chemical weapons.

The literal text "the right of the people to keep and bear arms" does not give us any basis choosing between these extremes or for drawing a line between them. We have to do a purposive reading. In this case, unlike many amendments, there is a modifying clause:

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

I'm going to leave aside the argument that "a well regulated militia" shows this is not an individual right at all--it's a whole other can of worms, and I hate when Clarence Thomas does that with the Establishment Clause so I won't do it here.

Okay, so we do seem to have a statement that the ultimate purpose of the right to bear arms is "the security of a free State".

But against whom are we trying to protect "the security of a free State"? I can see three possibilities:
1) Criminals, rebels and traitors?
2) External invaders?
3) The federal government?
Or some combination of the above?

If it's mainly the first one, that suggests that's there is a right to bear such arms as are necessary to protect yourself against criminals, so muskets and flintlocks really are not going to do the trick anymore. It also suggests that there's no right to own weapons that law-abiding citizens really could not use in self defense against criminals, but criminals could use to threaten or violate the security of law-abiding citizens. So WMD are right out, as are land mines. Probably also large bombs, cluster bombs, land mines, and rocket propelled grenades, heavy artillery, and full-on machine guns--most of those are much more useful to someone trying to kill a lot of people than to someone trying to protect his family or home. As far as current gun control laws, it seems like you could make good a case that it's all right to outlaw armor piercing bullets, but if the NRA can prove that the assault weapons ban is easily evaded if you're willing to disobey the law, then that's much harder to justify.

If we're also talking about security from foreign invasion or the federal government, on the other hand, then that would suggest that a much, much greater number of weapons would be protected--though still not a limitless amount.

The placement of the clause in a collection of rights individuals and to a lesser extent states have against the federal government suggests it might mean the federal government. But since Congress can call state militias into its service, and since the national government also has a power and implied duty to repel foreign invasions and insurrections, and since surely they're not trying to protect the state governments' right to dissolve the very union they're trying to form, and since this could increase the risk of rebellion and criminal activity.

On the other hand, even if they didn't WANT the states to rebel or secede, maybe they wanted the states to have some means to resist usurpations by a federal government when their last experience with a strong central government had led to, in their view, tyranny. Also, when the clause was written they were figuring on not having a standing army, and transportation and communication took much, much longer. So states and individual citizens probably did need to possess such arms as you could use to fight a military invasion, because they would be the first line of defense. The text's use of the term "security of a free state" also suggests that they are talking about more than merely protection against criminals. So maybe based on these facts we should make the test: "such arms as would be necessary to protect yourself against a foreign invader or a domestic tyrant".

But here we run into a host of other problems:
--those arms no longer exist. There is no weapon that can protect you against a smallpox terrorist attack or North Korean nuclear warhead or the U.S. military.
--those conditions about calling up the militia that led us to this interpretation no longer apply. If we are invaded, our military will be able to respond much faster and much more effectively than individual citizens ever could, even if we have the same range of weapons available to us.
--While requiring that all weapons available to foreign governments be made legal would put citizens at the mercy of not only criminals, but also the only form of "foreign invasion" that this country now has any reason to fear: a terrorist attack.

So if that was their purpose, it's now impossible to fulfill it, and it would undercut their other plausible purpose which it IS still possible to fulfill. So we'll go back to the "such arms as are reasonably necessary to protect yourself against a criminal" test. The ban on assault weapons is invalid because it would aid criminals at the expense of law-abiding citizens, but the ban on armor piercing bullets is sustained because it aids law-abiding citizens at the expense of criminals.

To von and Sebastian and any textualistss or originalist reading: have I faithfully applied the text of the Constitution, or have I just made a policy decision better left to the legislature? If the latter, was there any way I could have avoided it?

More specifically:

1) I started out on this path because of a change in technological conditions, but I ended up discussing changes in social and historical conditions. Was I wrong to do that? Was there a way I could have avoided it? In this case the social and technical changes were closely intertwined, but is that ever not true?

2) I keep talking about the founders' purposes. Am I actually looking at the founders' purposes, or am I using talk about their purposes to pretty up what is essentially a legislative, policy-type decision that I have no business making?

As it happens this outcome does NOT reflect my political preferences; gun control is not a real big issue for me because I don't think it accomplishes much compared to the political costs, but if Congress wanted to require something far more invasive than the assault weapons ban--individual bullet fingerprinting, a ban on handguns, whatever--and it wouldn't kill the Democrats politically, I would be totally cool with it. I don't think gun ownership is a meaningful safeguard of liberty, other than the liberty to own a gun, anymore. And I think the availability of handguns leads to many more crimes and accidents and deaths than it prevents. I'd oppose a ban on hunting rifles and target shooting, but I'd do it for the same reasons and with the same intensity that I'd oppose a ban on fishing, baseball, football, or skiiing.

So that's not what's going on here. But to someone who didn't know my views, it could sure LOOK like that's what's going on here.

I think what's actually going on is the following:
When a judge is dealing with a contract dispute that stems from changed circumstances that make it impossible or impracticable to fulfill the contract, and the parties cannot reach a settlement, one of the options available to the judge is to imply a term to the contract that reflects what a reasonable party would have done if he had anticipated these circumstances. As my contracts professor asked: in practice, is this any different from the judge implying a term to reflect what HE would have done if he anticipated the circumstances?

Probably there isn't. And yet, what's the alternative? You can ask the parties what they would have done, but they're obviously not going to give you the same or similar answers, or the case would've settled. It'd be good if you had a statutory default rule for situations like this, but there isn't one.

A purposive analysis of the Constitutional text asks: what would a reasonable founder or ratifier have done, if he had known about these changed circumstances? And you can certainly make an argument that there's probably not much functional difference in asking, what would I have done?

But I don't see an alternative.There's no way to call up James Madison or take a poll of the ratifiers, and even if they were available to testify they'd almost certainly disagree. Listing the weapons that were available and/or legal in 1789 doesn't get you anywhere, because you'd still be deciding that a reasonable founder would have wanted to make those the ONLY weapons you had a right to. Or you'd be assuming that a reasonable founder's ideas about whether to make all technologically feasible weapons legal would not have changed based on how the technology changed--it's mind-reading just as much as my approach is mind-reading. And those assumptions, unlike my assumptions, are stupid.

Still, I can understand the desire to limit judicial discretion. And I think there are four ways of keeping yourself honest.

One is that, if you really can determine what the meaning-as-sense of the original term is, you are obligated to follow it.

The second is, if you're doing a purposive reading of the text, you have to be reasonably precise and specific about what purpose you're imputing, and where you're getting it from. You can't just say you read the whole Constitution and it clearly is meant to establish "liberty" or "individual rights" or "minority rights" or "democracy", and then go ahead and impose the decision that best protects "liberty" or "individual rights." Griswold is horrendously sloppy about this. There are other "emanations and penumbras" in Constitutional Law, but they arose because they were thought to be clearly implied from, or necessary to protect rights that were specifically protected--where it would make no sense to protect A and not B, or you can't really protect A without B. They were individually justified, case by case; there's not a general authorization to create an emanation or penumbra when you think it's convenient, and that's what it looks like he's doing. He talks about "the right to privacy" and the "right to be let alone"--but that's so vague that it tells you nothing useful about where this right came from or where it's going. What couldn't be included in a right "to be let alone"? What amendment couldn't be said to support it?

I do still think he's getting at something that you can make a real case is constitutionally protected--but let's leave that argument aside for now. The point is, as written it would be generous to say it comes out half baked. Douglas is sloppy and Goldberg is worse. The fact that they all agree that this right exists, but can't get their story straight on what it is or where it came from, here or in later cases, further undercuts their credibility.

Which brings me to the third thing: I think the reason the privacy decisions are such a mess and are so controversial is that rather than letting this "emanation and penumbra" be defined gradually over time from the logic of the cases that can stand on their own merits, they try to build it from scratch. It's very different from the way the first amendment "emanations and penumbras" have worked, and I think that's one of the major reasons why many of those first amendment cases(as far as free speech, not the religion clauses) are pretty widely accepted across the political spectrum and among all nine Supreme Court justices, whereas the "right to privacy" is not. The other reason, obviously, is that it touches on abortion and now also gay rights.

The fourth thing is, I think it's all right to consider and discuss changed circumstances explicitly, and this includes historical and social circumstances as well as technological change. But I think you should restrict to yourself to either:
1) historical facts or changes in knowledge that can be proved to be true, or reasonably close to it
2) matters of historical interpretation, understanding and morality about which there is a real social consensus.

By #1 I mean: the Brown court shouldn't have been citing those silly educational studies when it had no intention of confining its holding to education. There was plenty of hard historical evidence available which it could have used to show that in practice, separate never was equal, never was meant to be equal, and there was no way for courts to make it equal.

Note that when it comes to questions of scientific or historical proof, I don't think you need universal acceptance of those truths. Obviously people in the South would have argued strongly against the Brown Court deciding that separate was not equal and never meant to be equal. I still think it would've been legitimate for the court to consider the evidence. As far as current case law goes, I would be willing to assert that just as we now know that the snail darter is an endangered species even though we did not when the ESA passed, we now know that:

--sexual orientation is an immutable characteristic.
--a fertilized but unimplanted embryo is not a life.
--there is no scientific basis for teaching intelligent design in biology class,
--The state of Texas is imposing death sentences in a way that reflects the income of the accused much more than the severity of a crime, has executed people in cases where a preponderance of the evidence available at the time of death showed the likelihood of their innocence, and has executed people in cases where their attorney's failure to present mitigating evidence was probably decisive in the jury's decision to impose a death sentence.

By #2 I mean:
as far as historical interpretation:
--Americans share a common historical understanding that slavery, legal segregation, and the denial of voting rights to women and black people were immoral mistakes that should never be repeated.
--Americans share a common understanding that the policies of the Soviet Union, the Taliban, Communist China, and Nazi Germany are illegitimate and deeply immoral and to be avoided at all costs.
--Americans do not share a common historical understanding about the economic policies this country has pursued, in really any decade.
--Americans do not share a common historical understanding of the lessons of the Vietnam War.
as far as morality:
--there is no societal consensus that abortion is a right.
--there is no societal consensus that execution is cruel and unusual.
--there is a societal consensus that torture and the whipping post are cruel and unusual.

If it passes the test for either #1 OR #2, I think it's legitimate to treat it as a change in the circumstances that should be considered in applying the constitutional text, just as it is legitimate to treat the technological change in weaponry as a change in the circumstances that shouldc be considered in the interpretation of the constitutional text.

Voila: that's my theory of interpretation. If you want to see court cases that I think follow this theory, the best place to go to the website of the South African Constitutional Court--keeping in mind that they're interpreting a Constitution that is much more recent, more detailed, and more liberal than the United States'. And the Supreme Court justice I think does the best job is Souter, followed by Ginsburg, but I didn't steal this approach from their decisons like I did from the South African court's.

Posted by: Katherine | Mar 5, 2005 3:56:26 PM

Posted by: razor

re noah

I don't think you are serious. A serious person would know that the impetus to "Democracy and Distrust" was Roe v. Wade. I am far from happy with the Court. Gore v. Bush, led by a justice whose son worked for the winning team's lawyers, a justice who had to issue a pre hearing statement to justify a prelimiary injunction, in which he assumed the truth of claims of the side he wanted to win, for example, was an explicitly political, anti judicial, act by the fountian head of originalism, in order to elect a man who asserts he wants strict constructionists, like the duck hunter Scalia himself, who, mocks strict constuctionism as some inferior thing. Gore? Ox? Bullocks.

The robes of the Supreme Court judge, when donned, do not transform them into super judges who can transcend the judicial power to which mere small claims judges are limited. The problems of judiciability do not disappear because the conflict to be resolved has been staked on the terms of the Second American Constitution. Same problems. Bigger stakes. More self delusion.

Posted by: razor | Mar 5, 2005 3:59:43 PM

Posted by: Justin

Dorf's article that I've plugged several times responds to Lawson's argument fairly persuasively and also redevelops the theory of legal indeterminacy in relationship to the theories of "radical majoritarianism" that has since entered the modern jurisprudence debate.

78 NYU L REv 875 (2003). I encourage everybody to read it, on Lexis or Hein.

Posted by: Justin | Mar 5, 2005 4:01:38 PM

Posted by: noahpraetorius@hotmail.com


I know you have some point there but darned if I can figure out what it is. But then I have admitted that I like logical coherent things.

Perhaps you could explain to a dolt like me why the Stuart theory above is incoherent or "wrong" without resorting to legalistic reasoning...I am not a lawyer. But to be fair you have your own axe to grind in this discussion and it apparently is not mine! I do think it would be preferable if reasonably intelligent citizens could understand SC reasoning.

Posted by: noahpraetorius@hotmail.com | Mar 5, 2005 5:45:15 PM

Posted by: noah


As I take it after re-reading your posts several times:

1) You are not an originalist of any stripe.

2) Not sure if you are a strict constructionist or not.

So what are you? Ive heard textualist...is that the only remaining choice? Or as I stated is it the "whose ox is being gored theory" which is that the SC majority follows its politics disguised by "judicial reasoning" of varying consistency.

Or is your theory is that there is no theory and that no judge has the power to decide much of anything beyond the facts of the case at hand with all the "illuminable ignorance" that human affairs entail.

Inquiring mind here...I want to know.

Posted by: noah | Mar 5, 2005 6:15:41 PM

Posted by: Stephen M (Ethesis)

Posted by: Katherine

this goes over some old ground, but...

The more I think about it the more it IS like contract law. In addition to originalism/non-originalism, the key debate, re-cast in contract law terms is:

Is it ever acceptable to do a purposive, as well as a literal, reading of the Constitutional text? To what extent is it acceptable?

Your entire post is well said. The social compact implicit in a constitution is emotionally responded to the same way a contract is responded to, and the legitimacy of the Court ebbs and flows to the extent people feel violations.

Interesting thread here, liked your use of the South African Court.

Posted by: Stephen M (Ethesis) | Mar 5, 2005 6:52:40 PM

Posted by: Mona

noah asks: Or as I stated is it the "whose ox is being gored theory" which is that the SC majority follows its politics disguised by "judicial reasoning" of varying consistency.

Whose ox is being gored also applies to so-called originalism. I did law school at one of the most conservative top tier schools in the U.S. My Con Law prof had been Ed Meese's "right hand man" in Reagan's DOJ. He is a devout Catholic.

In his view, Thomistic natural law has a place in jurisprudence, such that he thinks the SCOTUS could properly rule that abortion may not be permitted by any state. Which is to say, he'd do the flip of Roe, and prohibit states from allowing abortion, as opposed to allowing them to at all permit it.

In the 80s, there were few conservative legal scholars or lawyers of any distinction; there are many more today, so Bush has more to choose from for his court appointments. Get enough of them in place, fellows who think like my Con Law prof, and the scholastics and other conservative-minded judges will find warrant for their rulings. I expect to see that once many conservatives are placed in the judiciary, we will see less endorsement of the untenable philosophyof "originalism." It REALLY is about whose ox is being gored, on both or all sides.

Posted by: Mona | Mar 5, 2005 7:00:05 PM

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