A lot of VC readers who have followed McDonald v. City of Chicago were quite disappointed last week by what they saw as the Supreme Court’s likely unwillingness to revisit the Privileges or Immunities Clause. At oral argument, the Justices seemed focused on the practical problems of reviving PorI, not on whether such a revival was correct. None of the Justices who spoke seemed particularly interested in how a normatively proper constitutional theory applied to the case. A lot of readers were thinking, “What’s the point of the Supreme Court if they’re not committed to getting it right as a matter of first principles?”
These certainly are fair criticisms. But it seems to me that if you really want to change things, you should direct at least part of your criticism to the Constitution itself — specifically, Article II, Section II. This section explains how people get on the Supreme Court: the President nominates, the Senate confirms, and the President then appoints. In other words, Supreme Court Justices must be nominated, confirmed, and appointed by politicians.
When politicians are responsible for determining who gets a significant power, they are not likely to favor someone who they think will exercise the power of the office in unexpected ways. They generally won’t want someone who will follow a theory to radical implications. Indeed, they probably won’t want “theorists” at all. They’ll want people who exercise the power of the office with a sense of consequences, of cause and effect, and of the realities of institutional power. That is, practical people. And that means that the Justices we’re likely to get are likely to have that sense, and are unlikely to be the kind of purists who will follow theories even if it leads to radical implications.
I’m not saying this is a good or a bad thing. Opinions differ, and it’s beyond the scope of this post. My point is only that it’s the system the Constitution gave us. The Framers bestowed responsibility upon politicians for nominating and confirming Justices, and that choice means that the Justices we’re likely to get are likely to be more practical people than constitutional theorists. So if you’re disappointed that the Justices are not committed enough to constitutional first principles, it is of course fair to criticize the individual Justices, and the broader legal culture. But I think at least part of your criticism should be directed to the Framers for giving responsibility to politicians for who ends up a Justice.
CJColucci says:
But if the Founders created a system with such obvious implications, isn’t that a sign that they wanted it that way? That the prevalence of “practical people” over “constitutional theorists” is not a bug but a feature?
March 8, 2010, 5:19 pmruuffles says:
I guess for republican presidents, that rules out judges like Posner, Easterbrook, and Kozinksi, none of whom IIRC ever got on a short list. Though curiously, Bork got nominated and Wilkinson got on short lists, yet both are critical of an individual right to bear arms. Any such names for democratic presidents?
If the implication is so radical (right to bear nuclear weapons), wouldn’t it follow that enough of the population (more than flag burning) would be against it to yield a constitutional amendment?
March 8, 2010, 5:21 pmOrin Kerr says:
CJColucci,
As I wrote in the post, “I’m not saying this is a good or a bad thing. Opinions differ, and it’s beyond the scope of this post.”
March 8, 2010, 5:23 pmtroll_dc2 says:
But sometimes the politicians do not know enough at the time and discover, only too late, that they put an otherworldly individual on the Court. To some extent, at least, isn’t Scalia a constitutional theorist? And what about Thomas? On the other side, Goldberg strikes me as having been a theory guy rather than a practical one (like Fortas).
March 8, 2010, 5:28 pmii says:
Is this serious? Democrat appointed Justices have had a lengthy history of following and indeed imposing radical legal theories with radical implications. Just because Ginsburg and Breyer are center-left, doesn’t change the fact that Brennan, Marshall, Warren, et al. were very much left-wing radicals in their day. To suggest otherwise is revisionist.
March 8, 2010, 5:28 pmruuffles says:
Brennan and Warren were appointed by Eisenhower, although the justices themselves were Democratic and Republican, respectively. Just sayin’
March 8, 2010, 5:30 pmcboldt says:
Lotsa words to reach the conclusion, “all law (including Con law) is politics.”
March 8, 2010, 5:31 pmohwilleke says:
“When politicians are responsible for determining who gets a significant power, they are not likely to favor someone who they think will exercise the power of the office in unexpected ways.”
Politicians regularly appoint someone who will exercise the power of the office in unexpected ways, and are often pleased by it. It is not how they do it that matters, but what they are trying to do. In politics, policy considerations usually trumps process considerations. Few politicians have strong process commitments.
Indeed, from a constitutional perspective, American judges who are selected from people who have had successful first careers as lawyers who knew how to exercise power, and who are politically connected are far less predictable and exercise much more independent power than do judges in most of the world who are career civil servants and usually start off in traffic court right out of college and work their way up. Elected and appointed judges differ little in this respect; what matters is that we have political judges with an independent power base and more of a commitment to process values than the politicians do or the voters do.
March 8, 2010, 5:35 pmohwilleke says:
Neither Justice Scalia nor Justice Thomas would ever be appointed by a meritocratic civil service board. Nor would many of our other judges. In practice, most judges in the world are timid and predictable. The politician appointed judges (often on constitutional courts) are the ones who are unpredictable (in part because civil services systems have more time over someone’s career to figure out what they are like and vet them).
March 8, 2010, 5:38 pmChris Travers says:
Which is why I blame the 17th Amendment…..
March 8, 2010, 5:39 pmDissenting Reason says:
I guess Orin has advance copies of the opinions.
March 8, 2010, 5:39 pmOrin Kerr says:
ii,
In your view, was Justice Brennan primarily a legal theorist? If so, what was his theory? Like him or dislike him, I think of Justice Brennan as someone who was much more interested in results than purity of legal theory.
cboldt,
No, I disagree, as we don’t live in a world in which there are two options, “pure theory” and “all politics.”
March 8, 2010, 5:40 pmMark Buehner says:
What’s the alternative? Some sort of inbred lawyers committee sure to promote justices most likely to defend their institutional interests (as if we don’t see enough of that as it is)? Direct democracy sure to put Judge Judy on the bench? Lottery?
March 8, 2010, 5:43 pmtroll_dc2 says:
Even theory justices have to get five votes to be effective. It is rare that they can write the opinion of their dreams, since they will lose their majority. So they do what they can and then backtrack, put in ambiguous footnotes, take out sections, and jump from A to C, leaving law professors who are seeking tenure to look for point B. Goldberg comes to mind for a decision whose name escapes me involving the legality of a confession; it involved broad observations and a narrow ruling that left it unclear what the point of the first part of the opinion was all about.
March 8, 2010, 5:51 pmMike McDougal says:
Is that your prediction that the 2nd Amendment will be incorporated via the 14th’s Privileges or Immunities Clause?
March 8, 2010, 5:58 pmcboldt says:
– What’s the alternative? –
March 8, 2010, 5:59 pmI was wondering the same thing, and realized that the entirety of social construct is available as alternative. One entity dos all (king/dictator/etc.), executive finds guilt, rather than just alleging it, etc. Plus the options you note, for ostensibly separating the “judging” function from the legislative and enforcement functions.
Another alternative is to have a jury-like entity empowered to make the decisions.
ruuffles says:
For supremes, a minimum of 5 to 10 years on an appellate bench (state or federal). (That would discount Roberts, Thomas, Marshall, and Warren but include Brennan, Souter, Stevens, and Blackmun). This would give a sufficient paper trial and the experience in other countries judges. I would still like the senate to confirm the presidents nominees without a commission, but with two modifications.
1) for lifetime appts, a 2/3 supermajority (not a filibuster)
March 8, 2010, 5:59 pm2) the nominee him/herself is not allowed to testifying
troll_dc2 says:
ruuffles, until recent decades it was not the norm for an appointee to have prior judicial experience. Were those justices better or worse than the ones we have had who did have that experience?
March 8, 2010, 6:11 pmloki13 says:
I think that this post is accurate, and quite true. It also highlights something I find interesting, and troubling, about one wing of the modern conservative movement when it comes to the judiciary.
When I view conservatism most favorably, it comes from a Burkean approach- that incrementalism is a good thing, that the knwoeldge and wisdom of those who came before us should not be lightly tossed aside, and that (to go back to Socrates) there is great value in indetermincacy- in recognizing that you do not know. That an individual might be humble enough to suppose that they don’t have all the answers.
There is a current wing of the modern conservative movement that has done away with these values. To them, the best answers are in the judiciary- that they cannot get their desired outcomes through the electoral process, so they, knowing what the Constitution really means, will use the courts to make far-reaching changes to society through their pure and “correct” view.
This, of course, has very little to do with conservatisms’ greatest successes in the 80s and 90s and seems much more like the liberal overreach of the 70s. Instead of asking questions of whether, inter alia, courts are the best (or even the appropriate) venue for micromanaging schools or conducting institutional change, they simply force through their desired outcome regardless of the real-world implications because, well, they know better than us. Better than the years of precedent, the decades of thought, and the desires of society.
Conservatives did a great job at restoring a balance to the Court- to get them back to the more incremental changes that the Court is best at, to keep them away from sweeping changes, to keep them from only adjucating real cases and controversies through standing (see SCRAP). But this worthy project looks to be undone by some- those who believe that they have the right answers, and their right answers must be enforced; regardless of precedent, or society, or even countervailing good-faith belief in what the right answer might be.
So I think Orin Kerr makes a valid point- that by making the nominations a political process, the Founders sought to keep the most radical influences off the Court. Back in law school, I remember thinking that, well, PorI was the correct avenue for incorporation- at that time. But that was a path not taken. Heck, I think Hans falls in the same boat. And I could keep going. But there is a benefit in predictability- we don’t want the Court to continually swing from position to position based on the whims of new members. What one justice feels to be indubitably to be the “right” interpretation might be the wrong interpretation by another judge, or viewed very differently in a few years. It is best to move slowly, to analyze each case and build up the framework and reasoning so that, if one day a change is made, it is no longer a surpise.
March 8, 2010, 6:11 pmtroll_dc2 says:
loki13, was Erie R.R. v. Tompkins wrongly decided?
March 8, 2010, 6:14 pmruuffles says:
troll_dc2, “until recent decades” is post nixon, in the Reagan era. With four appts, Nixon got Burger (DC Ct), Rehnquist (DOJ something), Blackmun (8th, 3rd choice), and Powell (lawyer?). The only two conservatives were Burger and Rehnquist. With Reagan, the only conservative was Rehnquist (elevation) and Scalia (DC Ct), though Bork (Dc Ct) was nominated. Then you have conservatives Thomas, Roberts and Alito, all Ct judges. They are better in the sense they are exactly as their republican presidents expected.
My point is then that if you like a circuit judges 5 to 10 year record, you can be reasonably assured to like his record on scotus. It’s really hard to veer from 5 to 10 years of consistency, unless you’re Souter or O’Connor and you served on a state court.
March 8, 2010, 6:21 pmloki13 says:
troll_dc2
That’s a very good question. I would say that neither Erie NOR its predecessor (by J. Story) were wrongly decided. I know what you’re thinking- huh?
I don’t have time to go into a full blown analysis re: Conflicts of Laws, but if you view Erie as a quintissential conflics (choice) case, then it makes complete sense. When J. Story was writing the preceding opinion, it was taken for granted that there was this “common law” floating out in the ether that all judges were working toward- think of it like the shadows in the cave. So Federal and State common law were merely manifestation of the overall common law and were actually working toward the same goal. By the time of Erie, this idea had gone away, and we began to realize that the law was different in different places, and had to look at it as a true Conflict of Law case (complete with enabling act). As such, the substantive law of the forum state would prevail.
This is a very truncated version of my belief. But in short- yes, I think it was correct, but I also think (for the time) the preceding decision was correct.
March 8, 2010, 6:28 pmtroll_dc2 says:
You are being selective. Stevens was a Seventh Circuit judge for some years, and Blackmun was an Eighth Circuit judge for some years. Both were considered conservatives, Blackmun even more so than Stevens. How did that work out? For that matter, Potter Stewart, who had been on the Sixth Circuit, did not always live up to expectations either.
Why is this? For one thing, the issues at the Supreme Court level are different and deeper than what the average appellate judge sees. Also, a Supreme Court justice does not have to answer to another level of court. So a judge’s record below is not always a good guide. As for Bork, I saw a number of his opinions on the D.C. Circuit that made his reputation as a conservative seem like a caricature. Who can say how he would have reacted to his freedom?
March 8, 2010, 6:31 pmAndrew says:
I don’t think it’s right to dismiss simple obedience to the plain and obvious meaning of constitutional text as “impractical theorizing”, or to assume without explanation that such obedience would lead to “radical results”. Nor is it right to imply that the Constitution itself planted the seeds of its own destruction, or authorizes its own misinterpretation.
Incidentally, I attended the oral arguments in McDonald v. Chicago, and was alarmed by what I heard, for reasons explained here. I also think it’s very strange for Orin to be writing so many blog posts about this case when he acknowledges that he has not even read the NRA brief, much less the amicus briefs.
March 8, 2010, 6:43 pmloki13 says:
I don’t think it’s right to dismiss simple obedience to the plain and obvious meaning of constitutional text as “impractical theorizing”, or to assume without explanation that such obedience would lead to “radical results”. Nor is it right to imply that the Constitution itself planted the seeds of its own destruction, or authorizes its own misinterpretation.
Really? The plain and obvious meaning of the Constitution? Before getting into all the airy-fairy arguments about whether the Constitution is self-executing, Bivens actions and so on…
how, exactly, is the Consitution “plain and obvious”? Let’s deal with some immediate problems-
1. The time bias. This is a document of its time. We now live in a very different time. Without getting all Wittgenstein on you, the very words themselves had different meanins to the people drafting and ratifying the document than they do people today. Not only the words- the punctuation! There was a great law review article a few years ago showing that punctuation (commas) was used in a completely different manner for writings in the 18th centure than it is today, so all of our work decoding their subordinate clauses, etc. would be, well, useless, since it was much more of an oral culture.
2. Common law culture. The Constitution was written in a culture steeped in common law. Much more so than today, when we have intricate codes and statutes to detail almost everything under the sun. It was clearly meant to be interpreted and filled in… which leads us to-
3. It’s vague. The beauty of the Constitution is that it is brief and readable. But it is not a long and precise code of laws. There are few hard and fast absolutes in it.
Look, I believe that the Constitution is an anchor- you move to far from the text, and you no longer are operating under the rule of law. But I have found that everyone who says that meaning is “plain” always does so when it comes to advancing their own policy beliefs. Heck, it is “plain” that we can’t have an Air Force. It is “plain” that the 11th Am. is perverted beyond all reasonable gounds. But… I’m just not seeing it. I much preferred when people at least had the honesty (like Bork in the 80s) to say that the Constitution was “plain” in that the 2d Am. didn’t protect an indidivual right (I think he was wrong then, but at least he was being intellectually honest).
As for the Constitution authorizing it’s misinterpretation- where does the Consitution authorize a methodology for interpretation? Other than knowing the Founders were used to, and expected, common law… whaddya got?
March 8, 2010, 7:01 pmAndrew says:
The Constitution has parts that some might consider vague, and it has parts that no one can possibly consider vague. That the president’s term is four years cannot be considered vague, unless you insanely think that politicians meant their judicial appointees to interpret the word “year” however they please.
March 8, 2010, 7:04 pmtom van dyke says:
Orin, wise work as usual.
_____________
Loki, except for your screed against conservative justices, one might think you were Nino Scalia his ownself.
“In fact, it has occurred to me that this notion of an overarching moral law that is binding upon all of the nations of the world — and with which all the judges of all of the nations of the world are charged with interpreting — has replaced the common law.
Those of you who are lawyers will remember that, in the bad old days, that is to say, before Erie RR v. Tompkins [304 US 64, 78 (1938)], the courts believed that there was a single common law, it was up there in the stratosphere.
Now, the state courts of California said it meant one thing, the state courts of New York said it meant something else, and the Federal Courts might say it meant a third thing. But one of them was wrong! Because there really is a common law, and it’s our job to figure out what it is. So in those days, any common-law decision of one state would readily cite common-law decisions of other states, because all the judges were engaged in the enterprise of figuring out the meaning of what Holmes called ‘the brooding omnipresence in the sky’ of the common law.”
http://www.joink.com/homes/users/Ninoville/aei2-21-06.asp
March 8, 2010, 7:06 pmJasmindad says:
I think Prof. Kerr is correct in his description of the underlying reality, but for it to work, the politician and the nominated judges need to deny that underlying reality. No one — not the president making the nomination, not the senators voting for the nominee, not the nominee herself — will admit that the goal is to make sure that the Constitution is not interpreted radically, but instead to assert that the nominee’s interpretation would indeed do justice to the meaning of the relevant part of the Constitution.
Of course, the political atmosphere may change sufficiently at specific times that indeed radical reinterpretations happen, such as during Earl Warren’s time, but even then, neither Eisenhower nor Warren said during the nomination process that radical reinterpretation of certain provisions was a goal.
March 8, 2010, 7:06 pmJ. Aldridge says:
Gotcha. If you disagree with the original meaning, intent and long term understanding of the constitution there is no need to amend it to change it … just pack the court with the kind of justices who don’t care the slightest about truth.
Let VC be unhappy the 11A still hasn’t been judicially made a limitation against the states.
sheeeeeeeesh.
March 8, 2010, 7:10 pmBrett Bellmore says:
They’ll want people who are almost completely guaranteed to find nothing they want to do unconstitutional, regardless of what the Constitution might actually say. That pretty much rules out ANYBODY who approaches the law from a principled stance.
March 8, 2010, 7:10 pmtroll_dc2 says:
The more I am reading (and participating in) this thread, the more I think that we are just making up convenient explanations on matters that are too fact-dependent for meaningful analysis.
March 8, 2010, 7:17 pmJ. Aldridge says:
Facts have always been “optional” when it comes to the courts phony incorporation doctrine.
March 8, 2010, 7:26 pmtroll_dc2 says:
Would you like to discuss the subject raised by Orin, which is why we get the justices we do?
March 8, 2010, 7:33 pmAndrew says:
J. Aldridge, the Court’s incorporation doctrine is fully justifiable by the Privileges or Immunities Clause, which says: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” You argue that the term “citizens of the United States” does not include citizens in their own home state, and instead only includes visitors from another state. But nothing in the plain text supports such a strained interpretation.
So, I would dismiss your interpretation as implausible. At the other end of the spectrum, many libertarians read into this clause not only incorporation but also all kinds of other rights that do not already restrict the federal government; but, it’s silly to suppose that a “privilege or immunity of citizens of the United States” can include something that the federal government is free to violate. So, I would dismiss that libertarian interpretation as implausible too.
It’s like shooting fish in a barrel. Equally implausible is the Court’s current interpretation, according to which this Clause does absolutely nothing that is not already done by other clauses of the Constitution.
March 8, 2010, 7:39 pmJ. Aldridge says:
Isn’t phony incorporation what makes Orin’s subject possible?
The facts are clear: The comity clause never was a protection for any citizen against their own state because it only protected citizens of every other state who came into a state.
That fact is this is exactly the P&I’s of the 14A in it does not “refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two.”
March 8, 2010, 7:43 pmDilan Esper says:
Professor Kerr is right.
Imagine a different appointment process, whereby, for instance, each party appointed six distinguished legal scholars to a panel to serve a 12 year term. To sit on this panel, you had to have a law degree, ten years of experience as a law professor, and 5 articles published in major law journals. The statutory mandate of this panel would be to choose individuals with excellent scholarly qualification and excellent judgment to be federal judges. The appointments would be made by consensus, however, to achieve that consensus, the liberals on the panel would sometimes agree to place a brilliant conservative on the bench, and the conservatives would sometimes agree to place a brilliant liberal on the bench.
Now, with that appointment process, would you expect the composition of the Supreme Court to be similar to what it is now and what it has been throughout history, or would you expect it to be different and in what way?
March 8, 2010, 7:45 pmJ. Aldridge says:
Bingham: “I ask that South Carolina, and that Ohio as well, shall be bound to respect the rights of the humblest citizen of the remotest State of the Republic when he may hereafter come within her jurisdiction.”
Yep, that sounds real “strained” to me.
March 8, 2010, 7:48 pmMichelle Dulak Thomson says:
ruuffles,
This would give a sufficient paper trial [...]
Whether that’s a typo or not, it’s inspired.
March 8, 2010, 7:49 pmtroll_dc2 says:
Dilan, imagine a procedure under which the president and Congress select first a Democrat and next a Republican over and over. That’s the procedure used in New Jersey. What do you think of it?
March 8, 2010, 7:50 pmAndrew says:
You really ought to indicate when the statement was made. In any event, I know that the term “citizens of the United States” can encompass both citizens in their own home states in addition to citizens visiting from out of state.
March 8, 2010, 7:52 pmDilan Esper says:
Dilan, imagine a procedure under which the president and Congress select first a Democrat and next a Republican over and over. That’s the procedure used in New Jersey. What do you think of it?
I’d have to think it through.
Bear in mind, I am not sure I have a real problem with the appointment and confirmation process the way it stands now. Indeed, I actually have a pretty high opinion of the membership of the Supreme Court and the federal judiciary overall.
My point was an attempt to butress Professor Kerr’s point– one can come up with hypothetical systems that are likely to produce a lot of theorists on the bench, and hypothetical systems that are likely to produce a lot of politically-sensitive pragmatists. Our system falls in the latter category.
March 8, 2010, 7:56 pmtroll_dc2 says:
J. Aldridge, this is not the proper place to discuss the matter, but you are relying on legislative history. You might want to take a look at Scalia’s concurrence today in the Milavetz decision in which he wrote:
March 8, 2010, 7:58 pmJ. Aldridge says:
It was made on January 9, 1866.
Bingham in February 1866: “It (privileges and immunities clause) is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution.”
Bingham told Rep. Hale that no “State has the right to deny to a citizen of any other State any of the privileges or immunities of a citizen of the United States.”
March 8, 2010, 8:03 pmAndrew says:
Please tell me, Mr. Aldridge, on what date did Mr. Bingham propose the Clause currently in the Constitution: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”?
March 8, 2010, 8:09 pmJ. Aldridge says:
Ah but House Report N0. 22 conforms with the noted objections above because we know who voted and know they made the law.
March 8, 2010, 8:11 pmAndrew says:
Please tell us the date of House Report No. 22. Was it available before the state legislatures ratified the amendment?
March 8, 2010, 8:14 pmNR says:
What a great insight. The point reminds me a bit of Jack Balkin and Sandy Levinson’s theory of “partisan entrenchment,” although it is substantially different. I think this would be a great topic to develop into a law review articile.
March 8, 2010, 8:15 pmJ. Aldridge says:
December 6, 1866 and said would protect the guarantees of the “privileges or immunities of citizens of the United States” under Article IV.
March 8, 2010, 8:16 pmloki13 says:
Andrew,
What I would say is that some parts of the Constitution are less open to claims of vagueness than others. But even that “inarguable” idea is open to, well, arguments. As someone who previously had to deal with a very detailed statute dealing with time (in this case, time before a hearing for civil commitment), I can think of all sorts of ways that could come into litigation. Just think, looking at the text, of the interplay between that and the provision for disability, or swearing in, or, well, all sorts of other things that could happen. Or if we ever changed to a metric calendar. And so on.
So yes, it’s less vague than some other parts- but it’s not as detailed as a modern-day statute would be constructed. That’s both the glory and the curse of it.
Aside to tom van dyke-
I wasn’t aware that I had a screed against conservative justices? I have a good-faith disagreement with a certain section of “conservatives” who, in my opinion, are jettisoning the best part of the conservative revolution in jurisprudence since the 70s. You have to be careful what you wish for.
March 8, 2010, 8:24 pmAndrew says:
If he proposed the language currently in the Constitution on December 6 of 1866, then please focus on things he said about it on or after that date, and before it was ratified in 1868. That is the most relevant time frame, and focusing on that time frame would reduce confusion. Thanks.
March 8, 2010, 8:25 pmJ. Aldridge says:
I already did. Notice the “privileges or immunities of citizens of the United States” in the sample quotes:
Bingham: “It (privileges and immunities clause) is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution.”
Bingham told Rep. Hale that no “State has the right to deny to a citizen of any other State any of the privileges or immunities of a citizen of the United States.”
March 8, 2010, 8:32 pmOff Kilter says:
Orin begins with: “In other words, Supreme Court Justices must be nominated, confirmed, and appointed by politicians” and concludes from this we get Supreme Court justices who are “practical people.”
Why is this the result, as opposed to, say, “political hacks”?
Doesn’t this assume that politicians themselves are “practical people”? Who, watching politics over the last year, can believe that?
March 8, 2010, 8:32 pmAnon21 says:
I don’t know if someone has made this point already, but it seems to me that given Orin’s premises as to the motivations and intentions of politicians picking Article III judges, the results (or selection criteria) he suggests are precisely backwards. The most unexpected moves come from “pragmatists” (of whom Kennedy and O’Connor are exemplars) whose jurisprudence is under-theorized. They take a case-by-case approach, and while they are broadly confined by notions of what they see as incrementalism and moderation, the results of their ad hoc decision making can be way out in left field. On the other hand you have a candidate with a well-articulated theory in which s/he passionately believes; in this case, your only task as the nominating politician is to judge whether the theory leads to results you find congenial, and if so, you have a great candidate. If not–there are plenty of theories, and each has plenty of proponents. You’ll find the one you want eventually, and once you do you should have little fear that they will deviate from their orthodoxy.
March 8, 2010, 8:38 pmSuperSkeptic says:
Because we elect the people we do. It seems that it is We the People who are “not committed enough to constitutional first principles[.]”
I too blame the Framers for our republican form of government.
March 8, 2010, 8:39 pmJ. Aldridge says:
You mean monarchy (the court is parliament who knows no limits).
March 8, 2010, 8:46 pmAndrew says:
No, those two quotes are from February 28 of 1866, which was before you say he proposed the Clause on December 6 of 1866. Moreover, even in those quotes, it is not clear that Bingham was speaking about the exclusive purpose he had in mind.
I really find it difficult to argue with you, Mr. Aldridge, so I’d rather not continue this debate with you in this thread.
March 8, 2010, 8:47 pmJ. Aldridge says:
March 8, 2010, 8:47 pmAnon21 says:
Technically speaking, what you’re talking about is the more general autocracy; there can’t be nine monarchs.
Substantively speaking, you are wrong.
March 8, 2010, 8:48 pmChrisIowa says:
What the Supremes are doing is: rather than fixing a mistake made previously in the Slaughterhouse case, they would rather dig their hole a bit further and make it more difficult to correct than to acknowledge it now and begin a correction. IINAL, but it looks legally and intellectually lazy to me.
March 8, 2010, 8:51 pmtroll_dc2 says:
Yes, but.
Powell (remember him?) was an incrementalist too. I do not see him as fitting your theory.
March 8, 2010, 8:55 pmtroll_dc2 says:
Over its history, the Court has made plenty of doctrinal mistakes. Are you in favor of correcting all of them without regard to the consequences?
March 8, 2010, 8:57 pmTim says:
They also chose the upper house of the legislature to confirm the appointees. You know, the one that was supposed to be shielded from democracy by using the state legislatures to elect it.
That is, until we screwed that up by amending the constitution.
March 8, 2010, 8:59 pmNI says:
Most of the time, the difference between a “liberal” judge and a “conservative” judge can be measured in millimeters. A liberal will give a drug dealer five years and a conservative will give him ten, but neither will declare the war on drugs unconstitutional and send the defendant home. On stuff that might actually have an impact on society, they’re mostly cut from the same cloth. There’s the odd exceptional case in which having a liberal or a conservative judge does have a major social impact, but those cases are few and far between.
Maybe a lottery system with a fixed term wouldn’t be such a bad idea; it would at least be a huge cost savings. Probably three-quarters of the practicing attorneys in this country would be adequate Supreme Court justices. Anyone want to make the case that a lottery system would produce different bottom line results than the system we have now?
March 8, 2010, 9:00 pmAndrew says:
Although no blogger at this blog has (yet) mentioned it, SCOTUS would not have to overturn Slaughter House in order to apply the Second Amendment against the states via the Privileges or Immunities Clause. The NRA made this argument, as did several of the amicus briefs, but no one at this blog has mentioned it yet.
There are two independent reasons why the Court could do this. First, Slaughter House did not involve any right that already applied against the federal government, so Slaughter House does not necessarily rule out incorporation. Second, although the natural right to self-defense using the right to keep and bear arms (RKBA) pre-dates the Constitution, nevertheless the Constitution created a right to vindicate the RKBA in federal court, and it is only the former type of right rather than the latter that Slaughter House excluded from the PorI Clause.
March 8, 2010, 9:01 pmMike McDougal says:
That was unpersuasive. You didn’t apply any of your objections to the issue at hand. How do time, culture, and vagueness affect the P or I issue?
March 8, 2010, 9:01 pmJ. Aldridge says:
What, Parliament could never do what it pleased and consisted only of a single member?
March 8, 2010, 9:03 pmAllan Walstad says:
Ultimately, no matter how hard the framers of a Constitution try to give us a government of laws rather than men, the government is run by men. If men will not follow the law, no words on paper will save us. Constitutions work by being respected and obeyed. They do not stand up well to shyster lawyerism, i.e., picking them apart to find loopholes whereby the whole thing can be turned on its head.
If you don’t like the “radical implications” of some provision of the Constitution, you are free to propose amendments.
The Constitution gives us a system of government, and it gives us rules limiting the scope of that government. Obey the goddam rules.
I can imagine conversing with a cop about the practical problems of obeying stop signs when I’m late to work. Obey the goddam rules.
March 8, 2010, 9:04 pmJ. Aldridge says:
Ah yes, force two competing bill of rights between citizens of the states and their own state. Boy that sounds like real judicial adjudication.
March 8, 2010, 9:09 pmJ. Aldridge says:
duplicate.
March 8, 2010, 9:11 pmChrisIowa says:
Consequences will not get easier to correct by continuing the mistake.
Unless you are advocating that mistakes are best perpetuated into the indefinite future, or at least until you die.
I hope for more courage than that from someone with a lifetime appointment to the highest court in the land.
March 8, 2010, 9:11 pmAndrew says:
We already have two competing legal codes (state and federal) applying against each citizen. This system is messy, but that’s the way our country is set up. It wasn’t my idea. You apparently agree that some rights in the Constitution apply against the states, and you only dispute their number and extent, so why tilt against the entire principle?
March 8, 2010, 9:13 pmJ. Aldridge says:
No it was never set up that way. Bingham: “[T]he care of the property, the liberty, and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, and not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country.“
March 8, 2010, 9:16 pmRepeal 16-17 says:
Maybe the Court will rule that the Second Amendment is incorporated via P/I, as interpreted in Slaughter-House, and the DPC. The Court could then say that the result is the same: the Second Amendment applies to State and local governments to the same extent as it does to the federal government. That way, nothing’s overruled and the Court moots the P/I – DPC debate regarding the Second Amendment and maybe even the whole Bill of Rights.
March 8, 2010, 9:17 pmSuperSkeptic says:
I will – using your own argument and some of Orin’s:
The system would be more unstable than it is today because it would oscillate between different extremes – one’s not cabin-ed in by the current political processes’ practical pragmatists. A lottery may result in conservatives more conservative than Thomas and liberals more liberal than … well, the liberals. After all, you said it best when you described the current composition of the federal courts:
(This is also why, despite the fact that Professor Kerr portends to not have an opinion, I suspect that he likes the current system’s production of relative “centrists”. FWIW, I am also basically resigned to it – I don’t see how term limits or lottery systems would be any better substantively (theoretically) or any more accountable to the people, ultimately.)
March 8, 2010, 9:27 pmJ. Aldridge says:
There is what you can call “rights” that do apply to citizens as citizens of the United States, but none to citizens of the States. Why do you think states have their own legislatures, executive officers, courts and constitutions?????????
March 8, 2010, 9:28 pmU.Va. Grad says:
Drink!
March 8, 2010, 9:36 pmAndrew says:
The federal government has a legislature and executive officers, and they have not been rendered powerless by the federal judiciary. I admit the federal judiciary has encroached too much (using the lie of substantive due process), but even so Congress and the President are not completely powerless. And if the fundamental rights in the Constitution are applied against the states, that would not make the states powerless either.
I would personally have preferred if the 14th Amendment had not applied against the states all of the fundamental rights in the Constitution. But I really do think the 14A did so. And I also don’t think there’s a snowball’s chance in hell that incorporation is going to be reversed, without a constitutional amendment. But what can be reversed now is the Court’s unlimited power-grab by which it seeks to apply unenumerated rights against the states via the lie of substantive due process.
March 8, 2010, 9:39 pmJ. Aldridge says:
Difficult to imagine on what basis you do since the first section of the 14A is a nugatory of what that states could not do under the original constitution. Only difference is the courts now can enforce in the same way as if a state had passed a law impairing the obligation of contracts.
IOW, no new rights or limitations were created by the 14A, only enforcement of what had always been limitations on the states in regards to the civil rights of citizens of other states under the comity clause.
March 8, 2010, 9:53 pmAndrew says:
You are a very rare breed, if you think the federal Due Process Clause applied against the states prior to the 14A. Do you think “person” in the 14A Due Process Clause really means “person from another state”?
March 8, 2010, 10:09 pmStephen Lathrop says:
That insight needs more attention than it typically gets. It is understandable that someone deeply versed in the history of the law, and of Constitutional law, would come to believe himself expert in the relevant history. It is just not likely to be true, however, unless that person has also a few years’ experience reading a broad range of original documents touching on many subjects.
Secondary sources can tell quite a lot about what happened, but only original documents disclose what the language meant to the people who wrote or spoke it. And that insight comes gradually, after extensive study. The farther into the past you delve, the greater the problem.
At all times speakers expect their words to be interpreted within shared current contexts; what goes unspoken but is presumed to be in the mind of a listener or reader contributes much to a speaker’s intended communication. Cultural contexts which underpin meaning are ephemeral, disappearing from general understanding within years or decades, leaving behind only the traces their influence laid down in whatever documents survive.
We are lucky indeed that our founding documents date from the late 18th century, and not from the 17th. For a 21st century consciousness the 18th century is merely a minefield of potential misinterpretation. The 17th century is as familiar as a visit to Mars.
I remember vividly a conversation with an historian, one of the nation’s best-respected students of the 17th and 18th centuries. He told with amusement how he had been approached by a professor of sociology. The sociologist hoped an expert historian would prove a perfect font of insight into the founders’ likely views on a range of modern topics. The sociologist produced a questionnaire, requesting it be filled out in the voice of Thomas Jefferson. The historian’s response: “You can’t do that.” You can’t, but you can see it attempted time and again by lawyers, judges, and politicians who have no idea what they are talking about.
March 8, 2010, 10:10 pmAriel says:
It would make a big difference if you’re anywhere on the conservative/libertarian end of the spectrum. Lawyers are far more liberal than the general population. If you want the SC to be representative of the country, you’d have to adjust the lottery for this, at least.
March 8, 2010, 10:14 pmJ. Aldridge says:
All the states through their constitutions guaranteed the protection of laws of due process to any person. Some states did not equally apply these protections to certain classes.
The comity clause offered fundamental protections in life, liberty and property to other citizens of other states to the same degree a states own citizens were protected. But what happened if a state ignored that and did deny the same protections it affords its own citizens to black citizens of the United States? That is why there is a 14A.
Bingham: “Allow me, Mr. Speaker, in passing, to say that this amendment takes from no State any right that ever pertained to it. No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protections of the laws, or to abridge the privileges and immunities of any citizen of the Republic, although many of them have assumed, and exercised the power, and without remedy.”
March 8, 2010, 10:27 pmAndrew says:
Come on, J. Aldridge, do you think that the word “person” in the 14A Due Process Clause really means “person from another state”? Yes? No?
March 8, 2010, 10:32 pmJ. Aldridge says:
It means any person, but no people of a state that I am aware of ever withheld the protection of due process to themselves. So it wasn’t meant as a security for citizens of a state (as Bingham noted) but to extend the equal protection of due process to alien or stranger who were not a citizen of some state.
March 8, 2010, 10:40 pmAndrew says:
If “person” in the DP Clause means any person, then that includes people within their home states, and thus the DP Clause gave the federal judiciary a limited power to protect people within their home states in case a state failed to do so. You apparently agree.
Incorporating the other provisions of the Bill of Rights does the same thing.
March 8, 2010, 10:56 pmSuperSkeptic says:
It’s one thing, Stephen Lathrop, to recognize the difficulties of “interpreting” an 18th century document. It is quite another, I hope you would at least admit, to adopt the sort of post-structuralist nihilist position that words mean nothing, and it is impossible to interpret them, and so we should abandon the task in lieu of the constitutional view du jour. No?
March 8, 2010, 11:01 pmloki13 says:
Mike,
I was addressing Andrew’s argument about interpreting the Constitution in general. But the PorI clause? Really? You think it’s not vague?
As a purely normative matter, I believe the following:
a. The Bill of Rights should be incorporated against the states. I’m relatively agnostic about full/partial incorporation (leaving aside the 9th and 10th), but believe that practically speaking, selective incorporation makes more sense- I have no desire to see full juries for small claims court, for example.
b. Because of a, supra, I would like a textual basis for my belief. I think the 14th Am. is the best textual basis for that. I also happen to think it is is likely (although there is no dispositive evidence, even though I find Prof. Amar to be persuasive) that the 14th Am. was likely intended to incorporate the BoR.
c. Going further, as a textual matter, I think that PorI is the most likely hook for incorpoation. I think the evidence is strongest for that, but is not (again) dispositive.
d. However, the Court accomplished my normative desire (a) through SDP, so I don’t really care too much (toher than as an academic matter) about PorI.
Which brings us to a few points-
1. The law works in mysterious ways. We could have a field day with the way the Court has chosen to read parts of the Constitution. It’s hard to square the 11th Am. with Hans and its progeny. It makes no textual sense for the Court to collapse full faith and credit and due process into a single standard for choice of law cases. The Art. III exceptions clause is largely known for its absence. And so on. For that matter, I have yet to see the Court rigorously apply the difference between the 19th century and the 18th century when analyzing the scope of our rights when they’re infringed by the states as opposed to the Feds.
2. When looking at the text itself, there is no reason to suppose that PorI incorporated the BoR. There’s the interesting distinction between PandI and PorI. There’s the mystifying “why didn’t they just spell it out.” But, well, it’s vague. If we wanted to understand the original expected application (*not* the intent of the framers) then we’d have to get into the mindset of the people of the era, which is not an easy thing to do, since we are colored by our own times, biases, and predilections.* I guess I’ll just watch some more Deadwood.
*One of my favorite comments by Prof. Kerr was his explanation as to why he rarely comments on originalism. He said he wasn’t much of a historian. Amen. Any real historian laughs at us lawyers. There is a giant chasm between understanding and advocacy.
March 8, 2010, 11:05 pmloki13 says:
Nice use of nihilist. Did it ever occur to you that there’s a difference between humility and L’etranger? I think interpretation is fine, and looking to original expected application is one piece of the puzzle. Unfortunately, I too often hear that someone has true insight into what the Constitution *really* means. Strangely, it always means exactly what that person wants it to mean.
There’s a difference between a good faith effort to understand the context of a document, and the history surrounding it, vs. looking for ammunition to support your a priori position and/or favorit Bingham quote.
March 8, 2010, 11:10 pmDrib says:
Hey troll guy. Scalia is not a majority of the Supreme Court. He is writing for himself. Whereas footnote 3 was joined by seven Justices including Scalia’s conservative amigos. If you consider Justice Scalia as your idol then you may ride his law di*k all you want. But surely he is not the Supreme Court.
March 8, 2010, 11:11 pmJ. Aldridge says:
It would protect citizens of a state only from infringement, something I’m sure no citizens of a state would ever dream of infringing themselves of. As Bingham explained, it is directed solely against an organic act of a state.
Citizens of a state would have to remove protections of due process from their constitutions, declare in law they want to be sent to jail without evidence of any crime, trial, etc.
This is like citizens of a state buying insurance against being killed by death rays from mars – an event very unlikely to ever occur. It is a much better security for non citizens of a state than for citizens of a state for the above reasons.
March 8, 2010, 11:14 pmarbitrary aardvark says:
I’m not aware of any judicial nominees being rejected for their expressed views on the slaughterhouse cases. I’m not sure that’s an issue most senators feel strongly about. It would be interesting, though, for somebody to introduce legislation setting out a non-exhaustive list of privileges and immunities.
March 8, 2010, 11:51 pmI wonder if there’s a set the democrats could agree to, if there’s a set the republicans could agree to, and if there’s anything that would be on both lists.
Cornellian says:
Probably three-quarters of the practicing attorneys in this country would be adequate Supreme Court justices.
Haven’t spent much time in courtrooms or law firms have you?
March 9, 2010, 12:43 amJ. Aldridge says:
It was done in 1866. It was called the Civil Rights Bill.
March 9, 2010, 12:44 amPerseus says:
As much as I like theory, Prof. Kerr is right to point the finger at the Framers, many of whom criticized the intrusion of too much theory into political life. E.g., Alexander Hamilton:
March 9, 2010, 12:58 amDissenting Reason says:
No. It is my statement that Orin does not have advance copies of the opinion.
He is also wrong about how political the Founders wanted things to be. The Senate was not originally supposed to be directly elected, but the Senate confirms judicial appointments. The Senate today is far more political than the Founders intended. Orin is wrong.
He is also wrong about the lack of constitutional theorists on the Court.
Breyer thinks of himself as a constitutional theorist.
Scalia is certainly a constitutional theorist.
Kennedy, Alito, Ginsburg, Scalia, and Breyer have all taught constitutional or administrative law courses at law schools.
Thurgood Marshall and Ruth Bader Ginsburg pushed the law as advocates beyond the status quo; CJ Roberts litigated and won cases before SCOTUS that were later overturned as wrongheaded.
I have no idea what the Court will do. I imagine the opinions will be fractured and segmented.
March 9, 2010, 1:14 amPerseus says:
The senate may be more political today, but there’s a difference between political and practical, which Prof. Kerr defines as having “a sense of consequences, of cause and effect, and of the realities of institutional power” that makes judges reluctant to “follow a theory to radical implications.” I’d also like to see some evidence about how theoretical the Framers believed judges should be.
As for current justices, teaching law in and of itself does not strike me as being sufficient to qualify a justice as a constitutional theorist. One would need to see an articulated, comprehensive theory and a pattern of decisions reasonably consistent with that theory. Personally, I’d loosely characterize Thomas, Breyer, and Scalia as constitutional theorists, though Thomas seems to be the only one who is willing to follow his theory to its most ‘radical’ conclusions.
March 9, 2010, 2:05 amDissenting Reason says:
Actually, he writes “When politicians are responsible for determining who gets a significant power, they are not likely to favor someone who they think will exercise the power of the office in unexpected ways. They generally won’t want someone who will follow a theory to radical implications.” But the politicians — Senators — who make this determination are no longer elder statemen chosen by state legislatures; now they are directly elected just like representatives of the House. Do you really contend that the Founders were unaware that the House would be more contentious and radical than the Senate?
That may explain all the other evidence I pointed to.
March 9, 2010, 2:35 amyankee says:
Who believes in your straw man? Nobody I’ve ever heard of. I don’t think you’re even describing the post-structuralists accurately, though that’s not particularly relevant to anything.
March 9, 2010, 2:39 amyankee says:
In what sense is being elected by a group of politicians less political than being elected by the people? There are various things that can be said in favor of state legislators appointing members of the national legislature, but “it’s less political” is not one of them.
March 9, 2010, 2:48 amGene Hoffman says:
What are these bad consequences that P or I allows yet Substantive Due Process limits?
Orin makes the claim that we are a nation whose laws (created by the same political process, except via super-majority with state ratification) will be undermined by men who are afraid of bogeymen…
-Gene
March 9, 2010, 2:51 amPerseus says:
Your other evidence doesn’t seem especially strong: a) people like to think of themselves as a lot of things, but self-delusion, I’m afraid, is a common human frailty; b) pushing the law in certain area beyond the status quo is a plausible marker, but without an overarching constitutional theory, it’s likely to be confined to that specific area of law (e.g., woman’ rights).
But the politicians — Senators — who make this determination are no longer elder statemen chosen by state legislatures; now they are directly elected just like representatives of the House. Do you really contend that the Founders were unaware that the House would be more contentious and radical than the Senate?
What I contend that is the Framers believed that the Senate would be better judges of who would be better suited to serve as judges. That doesn’t necessarily imply that the Framers wanted judges to be doctrinaire constitutional theorists who (as Prof. Kerr put it) “will follow theories even if it leads to radical implications” and are “committed to getting it right as a matter of first principles.” Do you have any citations from the Framers to further buttress your claim?
March 9, 2010, 3:52 amDissenting Reason says:
The Framers also believed in a Senate composed of elder statesmen chosen by state legislatures. Instead, the Senators now in office sit for direct election by entire state populations, just like members of the House. In other words, the difference between the House and Senate justifying vesting advice and consent in the Senate only is gone. Yes, politics in the House are more partisan than in the Senate. Do I really need to go find a quote from the Framers on bicameralism to prove this up?
March 9, 2010, 5:45 amDissenting Reason says:
A. Are you claiming that Justice Breyer is deluded for thinking his Active Liberty is a legitimate work of constitutional theory? What of Justice Scalia’s A Matter of Interpretation?
B. Are you claiming that Justice Marshall and Justice Ginsburg — two advocates who changed constitutional law as adavocates and then changed the law as Supreme Court Justices — lack/ed a coherent constitutional vision? Do I really need to conduct a LEXIS search of various law review articles that assert otherwise?
March 9, 2010, 5:51 amAmiable Dorsai says:
So, as an Illinois citizen, Massachusetts is obliged to grant me a stronger right to keep and bear arms while I am visiting there than it is obliged to grant its own citizens?
March 9, 2010, 9:05 amCJColucci says:
What method of selecting judges that would have been conceivable to the Framers could have been expected to produce a bench of theorists rather than practical people?
March 9, 2010, 10:16 amAllan Walstad says:
The difficulty of drawing a sharp line on interpreting a document (or on general judgments about a lot of things) does not mean that there are not things patently on one side rather than the other. It’s fascinating to see left and right exchanging the rhetorical smoke-blowing strategy depending on which group is seeking to escape Constitutional limitations on any given issue, e.g. neocons as soon as “national security” comes up, left-liberals whenever “gun control” is involved. But it doesn’t all cancel out. Chip away at the timbers of any structure long enough and it comes down. Hell, much of it is already down.
March 9, 2010, 10:57 amA. Dawson says:
Orin… if what you are saying is true… and you make very good points. Then SCOTUS is somewhat fickle and cruel.
They specifically picked the McDonald (the Second Amendment Foundation) case and not the NRA’s case. If they had no intention of reversing Slaughterhouse then it means they just wanted to make the petitioners twist in the wind.
I will say that history has a lot of precedent to support what you’re stating. After all… did SCOTUS ever reverse Dred Scott? Or did that change come as a consequence of the 14th Amendment???
March 9, 2010, 12:57 pmJ. Aldridge says:
They have no obligation to grant you anything when it comes to bearing arms because that is not a fundamental right in securities of life, liberty or property. Bearing arms under state constitutions means bearing them as part of the military power of the state, not bearing them for other purposes, and that is regulated by state law if any state still has such laws on the books.
After another civil war and if the Union wins again, you might be able to claim a right to bear arms under the 2A (Freedman Act) in the militia in former defeated states that are under U.S. jurisdiction like was the case during reconstruction. Of course, you would be out of luck after such states are restored.
March 9, 2010, 6:20 pmInternational Courier says:
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