A dead constitution is better than a live one

Great Debates
41

december, there is one further point about “original intent” that Scalia blithely ignores - the common law system. The FFs were writing a law when they wrote the Constitution - the law setting up the basic workings of the American federal system. The context in which they wrote this law was the English/American common law system. Common law is “judge-made law.” The legislature sets up the basic parameters, and the judiciary determines how those basic parameters should be applied to the facts before the court.
Why Scalia thinks that the FFs, many of whom were lawyers, and all of whom were immersed in a common-law society, would “intend” that the Constitution should be exempt from the traditional common-law system, especially when the FFs never did or said anything to exempt the Constitution from the common-law system defies explanation.

Sua

42

december was a teensy bit off on the spelling, David. it’s Buckley v. Valeo, 424 U.S. 1 (1976), if you still want to look at it.

43

Sua, you raise an interesting point about common law. I don’t think Scalia advocates doing away with it. I’m not sure how his legal philosophy would deal with it.

All modes of constitutional interpretation are problematic. It’s easier to criticize someone else’s approach than to suggest an alternative.

There was a period in California when state SC judges like Roger Traynor and Stanley Mosk tended to re-write insurance contracts pretty freely. Their goal seemed to be doing what was better for society. IMHO some of their individual decisions may well have been better for society in certain narrow circumstances. However, there was overall harm because of not being able to know how a contract would be interpreted.

Getting back to Constitutional Law, Original Intent is falsifiable. In principle it is possible to make an observation that would show an application of OA to be wrongly argued**. E.g., David Simmons** can offer reasoned arguments that Scalia isn’t properly following his own approach.

Is there any other falsifiable approach? Under the approach as described by Sua, the only requirement seems to be to follow precedent. (and even that priniciple has exceptions.) I understand that judges can create new decisions by carving special cases out of past precedents. But, in principle, how could one tell if they were doing it right or wong?

Take the Pledge of Allegiance case. One could attempt to analyze it through Original Intent. I think the words “under God” would be constitutional (albeit misguided) on that basis.

But, suppose we reject OA. How is one to decide this case? What, then, should the guiding principles be? How can one even define what it would mean for the decision to be right or wrong?

44

Thanks, I found it. It is a long and complicated decision in which all of the justices seem to have concurred in the main and dissented in particular aspects.

I don’t have anywhere near the experience or knowledge to critique it and I don’t see how anyone can without having; detailed knowledge of the law that was challenged, heard the arguments on both sides, and looked up the history of previous cases on the same constitutional question.

But, to me, the question is not how the founders would have answered this question in 1789 but how we should answer it today, given political, economic and social conditions that they couldn’t possible imagine.

45

december, first of all, you have to stop pointing to California state cases. Without reading the cases themselves, I would presume that a California court is much more likely to be ruling in accordance with the California constitution and laws. There may be an original intent argument in that regard, but the original intent would be that of the drafters of the California constitution - which may be more or less verifiable than the original intent of the FFs, and may also have been a very different intent than that of the FFs.
California’s legal history is an interesting one for a discussion of the value and pitfalls of precedent, but it’s not relevant to a discussion of original intent and the U.S. Constitution.

Horsehockey. I think that it has already been established that it is impossible to determine what the “original intent” was. Without that, there is nothing to falsify against.
What is falsifiable are particular decisions against a legal theory - whether that decision adheres to or contradicts said theory. And that was tomndebb’s (not David Simmons’ )point about Scalia. “Strict constructionism” is a current legal theory about how the Constitution should be intepreted. Scalia purports to adhere to it, but, as tomndebb noted, he has issued opinions that contradict the tenents of the theory.

Aha. I see your problem. Between this and your “falsifiable” statement, it appears that you have fallen into the fallacy that the law is a science. It’s not. Who says there is a way to determine whether a constitutional decision is “right” or “wrong”?
The constitution is not an algorithm - you can’t place X facts into the hopper, apply the constitutional algorithm, and come out with the “right” answer.
Instead, the Constitution consists of words, written in intentionally vague phraseology, drafted in a notoriously ambiguous and fluid language.

You may make an argument that a constitutional interpretation is morally or ethically right or wrong, but you can’t make an argument that a constitutional interpretation is scientifically right or wrong.

Sua

46

Well, the job of the courts is to rule based on the law. What the heck is “the law”? The statute passed by Congress that happens to have impressed 51 senators and 218 representatives as sufficiently pandering to a majority of their electors that it will ensure their re-election? The broad statement in the Constitution that many people feel it violates? The regulations written by a bureaucrat based on the statute? Who decides?

That’s the job of the courts – and most specifically, the Supreme Court. I find a great deal of the Burger and Rehnquist Courts’ jurisprudence to be lacking in proper application of the Constitution (and a bit of the Stone, Vinson, and Warren Courts’ as well; I don’t want this to look like a liberal vs. conservative issue) – but under the rule of law they are the final authority on whether a statute conforms to the Constitution. And if it doesn’t, then to keep it as an effectual law simply throws out the whole idea of Constitutional protection.

Suppose, for example, that the Congress re-legislates the Pledge of Allegiance as it presently exists, as binding on all 50 states, with the right to mandate it, and with the stipulation that they find it to be in conformity with the Constitution. What then? Does this mean that the police powers of the states come into play to compel people to recite the Pledge against their own consciences? Or is the freedom enshrined in the Constitution applicable?

To make it quite explicit and personal, december, what if New Jersey elected a pro-Palestinian majority that banned by statute any activities in support of Israel’s right to existence as a state? Would you feel this to be binding on you? Or would you consider challenging it as a violation of your Constitutional rights?

I personally find Scalia’s POV to be extremely self-serving when it’s not sufficiently murky to eliminate my ability to understand it at all.

The entire idea behind the broad-brush definition of rights is that they are guarantees of whatever the classic “reasonable man” of jurisprudence understands them to comprise – not of your ability to exercise, say, your freedom of speech under a statute that permits you to say whatever you want, so long as you are on the Sonoran Desert at midnight at least three miles from the nearest person who might hear you. Or your freedom of religion – so long as you believe in YHWH in some socially accepted fashion. And so on.

By original intent, you, december, as a Jew would have to restrict your freedom to express Jewish and pro-Israeli views to those states that allowed Jews the same privileges as Christians at the time of adoption of the Constitution – and ensure that you spoke out nowhere but within those states. Posts on this board, which can be demonstrated to be read in other states, would be contrary to your opinions. Strangely enough, though, the views of people with Jewish, Islamic, and anti-Christian views are permitted to be expressed under the broad coverage that “Congress shall make no law” that restricts the freedom of speech, and the Fourteenth Amendment’s prohibition of a state’s legislating to restrict the rights and privileges of a U.S. citizen. With the late Justice Black, I believe that “‘Congress shall make no law’ means that Congress shall make no law.”

The courts are not permitted to read the law to mean what they like – they are to interpret it in the light of the provisions of the Constitution. And even when they bend matters out of what many people think to be reasonable shape (as in Bush v. Gore), they are the duly constituted interpreters of the law in the matter of a case or controversy arising under it. (To be sure, the Congress and the President are also interpreters – Congress will not pass a law that contradicts its understanding of the Constitution, and the President is free to refuse to allow his Administration to carry out a law he believes to be unconstitutional. But it is the courts who make the determination when a case is brought to court, for reasons that ought to be obvious if you reread the first clause of this sentence and note what word is repeated.)

47

If you mean it has already been established in this thread, then I do not agree. You wrote, “Right away, we run into a huge problem…” I agreed that there were many problems, but not that it was impossible. (Maybe I misunderstood the original intent of your post. ;))

If you review the thread, DS did indeed make the comment I was alluding to.

Yes, this is the nub of our disagreement. If there’s no right or wrong way to interpret the constitution, then five justices could decide anything at all.

Or course, much of it is an algorithm; in particular, the structure of the government, the election process, etc.

Do you have evidence that intentionally vague phraseology was used. I agree that many phrases are vague, but I assumed that was because it was written by many people, and it included various compromises.

I recognize that many or most constitutional scholars agree with this POV. This is what I’m complaining about. If the SCOTUS allows Congress to restrict your right to post Vote for Gore on this web site, I would say they were legally wrong, not just morally wrong. (This isn’t as far-fetched as it sounds. Some McCain people maintain the McCain-Feingold does apply to the internet.)

Polycarp. your heart is in the right place, but I disagree with your argument. You wrote

The weakness with this argument is that it assumes without evidence that the court will be the good guys and the legislature the bad guys. What if it’s the reverse? What if the Court bans activities in support of Israel’s right to existence? I’d be even worse off in this hypothetical situation, because neither the executive nor legislative branch could overturn what the court did.

You wrote further

Again, you have indicated greater faith in the resonable man of jurisprudence than in the reasonable legislature or the reasonable citizenry.

We all agree that this is proper and good. We are debating what it means to interpret “in the light of the provisions of the Constitution.” Scalia and I say the provisions of the Constitution ought to mean what the writers intended (if we can figure that out.) Others find problems with this theory (and rightly so) but they cannot enunciate an alternative formulation.

If the words of the Constitution don’t mean what the writers intended, what do they mean?

48

How about, “what the readers understand them to mean?”

I beg to differ. It is entirely possible to have a variety of schools of thought as to what a given possibly-vague and broad-brush clause means; Cecil’s column on the Second Amendment exemplifies this clearly. But each of these is founded on a sensible understanding of what the particular passage might reasonably mean. As stated, your statement sounds akin to “If we don’t mandate school prayers, we’ll have rapists and murderers on every street corner” and similar hyperbole.

I concur that it could easily be the courts rather than the legislature who end up being the “bad guys” in a given scenario. However, there is a very effective way to deal with this:

If a matter of statutory interpretation is at issue, pass a stronger and clearer statute that outlines what the legislature intends.

If a matter of Constitutional interpretation is at issue, amend the Constitution. Chisholm v. Georgia, Scott v. Sandford and two other leading cases have been flung onto the ashheap of history through this means.

If a judge persists in reading his own wishes into law instead of the statute or the Constitution, impeach him for failing to keep his judicial oath to take care that the law be properly enforced. (An egregious example exists in Alabama, though a quite intelligent Alabaman friend pointed out that the man was simply reciting existing case law holdings as obiter dicta, not trying to create law out of his beliefs.)

49

Horse hockey. You are particularly wrong about the election process. Have you heard of the “Jacksonian Revolution”? In a nutshell, it was the change in the 1830s to a system under which the Electors of the Electoral College based their votes for the presidency on the results of the popular vote. No constitutional amendment was required, and no one argued that the “original intent” of the FFs was to have the Electors make their own decision.
Similarly, the Constitution requires that Congress guarantee that the states have a “republican form of government.” What defines a “republican form” is extremely ambiguous, as is demonstrated by the great changes in state forms of government over the years. Look up “Rhode Island.”

Um, december, as you yourself write, may of the phrases are vague because they were compromises. Question asked and answered.

Sua

50

Sua, you seem to be quibbling. Before the last election, there were paranoid right-wingers who seriously worried that Clinton might refuse to leave office. The fact that the new President would be elected to replace him is one of many algorithms in the Constitution. Similarly, the number of Congressmen and Senators, their length of tems. etc.

It makes a difference whether Constitutional vaguenesss is intentional or a result of the drafting process. The phrase *intentional vagueness" is an excuse for a judge to do what he feels like.

This can be seen using the analogy of contract law. Contract are enforced based on the intent of the contracting parties. Sometimes that intent is impossible to discern, and a judge may subsitute her judgement as to what makes sense. If a judge were eager to apply her own judgment, she might emphasize the vagueness of the contract, as an excuse to take charge.

The claim that OI is impossible to determine is another such excuse. When asked what the words of the Constitution should mean, the real answer of OI opponents is that it doesn’t matter, because they do not intend to be bound by the words of the Constitution.

Polycarp, I like your idea:

This principle was once suggested by some right-wing Comgressman or Senator (Orrin Hatch, maybe?) He was blasted by the main stream media. I do not think this will ever happen in practice.

51

I’m quibbling?? The amazingly radical change in the American system of government, from a situation where the popular vote was a mere straw poll to where the popular vote actually determined who became President, is a quibble???

Perhaps you missed my point: such a basic change in the American system of government - the introduction of democracy to the Executive branch, was just as constitutional as the undemocratic system that came before it. If the same words can allow such radically different forms of elections, etc., the blessed Constitution is not an algorithm.

As for the vagueness business, let me clarify. There are many vague portions of the Constitution, because the drafters were crafting compromises. You can write a compromise that isn’t vague. For the drafters to have left vague sections in the Constitution, when they had ample opportunity to eliminate them, to me is compelling evidence that the vagueness is intentional.
You may disagree. Fine - neither of us can prove the point, because we cannot discern the original intent of the FFs.

But maybe your “quibbling” point is because I am looking far back in history. Well, isn’t that what you want to do, with original intent?

Didn’t address this earlier:

Theoretically, yes they can. That’s why we have checks and balances. The President must nominate a justice and the Senate must consent. This is the best humans can do, and thus far it has worked.

However, practically, the Supremes cannot decide anything they want, for a very simple reason. There is another check and balance that is routinely forgotten about. The judiciary has the largest theoretical grouping of power in the federal government. To counterbalance that, the FFs gave the courts zero actual power. The courts cannot enforce any of its decisions, but must rely upon the executive and legislative branches to do so.

The sole reason that the judiciary’s decisions are enforced is that the judiciary retains popular legitimacy. That is not by accident; the judiciary jealously guards and protects its legitimacy. So 5 justices couldn’t hijack the US Constitution and do with it what they will.

Sua

52

I’m quibbling?? The amazingly radical change in the American system of government, from a situation where the popular vote was a mere straw poll to where the popular vote actually determined who became President, is a quibble???

Perhaps you missed my point: such a basic change in the American system of government - the introduction of democracy to the Executive branch, was just as constitutional as the undemocratic system that came before it. If the same words can allow such radically different forms of elections, etc., the blessed Constitution is not an algorithm.

As for the vagueness business, let me clarify. There are many vague portions of the Constitution, because the drafters were crafting compromises. You can write a compromise that isn’t vague. For the drafters to have left vague sections in the Constitution, when they had ample opportunity to eliminate them, to me is compelling evidence that the vagueness is intentional.
You may disagree. Fine - neither of us can prove the point, because we cannot discern the original intent of the FFs.

But maybe your “quibbling” point is because I am looking far back in history. Well, isn’t that what you want to do, with original intent?

Didn’t address this earlier:

Theoretically, yes they can. That’s why we have checks and balances. The President must nominate a justice and the Senate must consent. This is the best humans can do, and thus far it has worked.

However, practically, the Supremes cannot decide anything they want, for a very simple reason. There is another check and balance that is routinely forgotten about. The judiciary has the largest theoretical grouping of power in the federal government. To counterbalance that, the FFs gave the courts zero actual power. The courts cannot enforce any of its decisions, but must rely upon the executive and legislative branches to do so.

The sole reason that the judiciary’s decisions are enforced is that the judiciary retains popular legitimacy. That is not by accident; the judiciary jealously guards and protects its legitimacy. So 5 justices couldn’t hijack the US Constitution and do with it what they will.

Sua

53

Well, I sure hope it never comes to the point where other branches of government stop obeying the courts. What a constitutional disaster that would be.

Sua, I think you and I pretty much agree about how the system actually works. Where we disaqree is whether it would work better if more attention were paid to OI.

Frankly I think you have a pretty good case that it’s working OK now. And, of course, judges do give some force to OI.

I think we have been fortunate to have a pretty darn good group of justices over the years.

54

Been there, done that. Mr. Jackson (again) ignored at least one Supreme Court decision.* http://statelibrary.dcr.state.nc.us/nc/bio/public/jackson.htm#Presidency
I can’t figure out the Google search, but I’m sure there have been lower court and state court decisions that the appropriate executive and legislature have ignored.

Sua

*In retrospect, Jackson’s decision to ignore the decision in Worcester v. Georgia was a hideous mistake. But at the time, I’m sure the decision wasn’t considered within the realm of “proper” jurisdprudence by the electorate, otherwise Jackson wouldn’t have been able to get away with ignoring it.