The Washington Post reports that members of the American Constitution Society are likely to be as prominent in the Obama Administration as members of the Federalist Society were in parts of the Bush Administration.
Eric H. Holder Jr., an ACS board member, has been nominated to be attorney general. Executive Director Lisa Brown has been tapped to be White House staff secretary, a key slot that involves reviewing all documents that go before the president. Board member Teresa Wynn Roseborough has been prominently mentioned as a possibility for several jobs in the Obama administration, including solicitor general.
"What that means is that the organization's core function of developing and promulgating legal ideas and social policy will have a more receptive audience than it has had in the past eight years," said Paul M. Smith, a District lawyer who is chairman of the ACS board.
And after all we're only ordinary men.
Me, and you.
God only knows it's not what we would choose to do.
Forward, he cried from the rear
And the front rank died.
And the general sat and the lines on the map
Moved from side to side.
Black and blue
And who knows which is which, and who is who.
Up and down.
But in the end it's only round and round.
Haven't you heard it's a battle of words
The poster bearer cried.
Listen son, said the man with the gun
There's room for you inside.
While both types of diasters are extremely interesting, I don't see reason to either laugh or to cry.
Their ideas fall apart easily under any sort of serious intellectual scrutiny. They are not so much interested in understanding the Constitution as they are interested in keeping the Constitution out of the way of their vote-buying efforts. I think that the obviousness of the intellectual dishonesty involved turns off anyone that isn't already dedicated to achieving their favored ends.
In terms of legal outlook, they're not much like federalist society at all and much more similar to a one-issue group, except they've combined multiple issues (abortion, voting rights, tax, etc) into a single platform. They're not looking for some sort of over-arching legal framework to help in deciding cases the right way, they're trying to tug heart strings so that people ignore principle in favor of the "right" result. As conservatives have repeatedly discovered, the issues of the day change from one decade to the next. Unless your judicial philosophy is grounded in something other than achieving a particular set of results, you're eventually going to be left rudderless.
Unless this outlook changes, I think ACS will continue to enjoy limited success. With no ideas of their own, they're basically just the Anti-Federalist Society.
Shorter version: the Federalist Society have principled, correct positions, and those that disagree with anything they believe are intellectually dishonest.
I will also toss around terms like 'irony' alike a manhole cover without realizing I just referred to the ACS as the Anti-Federalists. Perhaps you meant the Hamiltonions?
Indeed, please point me to any articles criticizing Bush's non-judicial appointment for being members of the Federalist Society.
From wikipedia.
Then again, maybe it is an attempt to polarize law school campuses by forcing people to think of Federalist Society as a right wing organization instead of just a debate society that allows libertarian and conservative viewpoints to be aired (something ACS never does except by accident).
Regardless of the details, ACS is a response to Federalist Society. But it's fundamentally an empty shell.
Yeah. Unlike that wonderfully rigorous tradition of "textualism," which holds that words have meaning apart from the intentions of the speaker? And which then looks to historical evidence to determine what that magic objective meaning is anyway?
larf
Legislators support bills for a variety of reasons. Two senators who support a bill may support different pieces of it. They may support it, but only because it was good enough but far from the ideal they would have intended. They may have ulterior motives for supporting something. They may support or oppose a bill because they owed someone else a favor from earlier or they wish to accumulate a favor they think they will need later. All of these motives can be in play during any single bill.
Where is the "intent" of the legislature except in the text of the bill that is passed through both houses and then presented to the executive?
From what I've seen from the Federalist Society, it is completely results-oriented as well.
The only difference is that the Federalist Society found a convenient, sufficiently malleable "constitutional framework" with which to back-justify their policy preferences, making them appear more principled.
But it's an illusion. Any policy result could be justified under the Federalist Society's approach to constitutional analysis. Try it - it's fun. Compare for example the penumbras of the Second Amendment, which apparently contain the "Right to Hunt", only instead of "penumbra" it's "original" something something. The "Right to Privacy" could very easily have been justified in the same terms.
The only question is whether you prefer justifying your policy preferences as unconstrained interpretations of the Constitution itself (ACS) or as unconstrained speculation about old dead people's language, culture, and intentions (FS).
I don't think they're all equally valid, but the constitution itself doesn't endorse any of them. Ergo, their relative merit must be based on factors outside the text of the constitution.
What? Who in federalist society ever said the 2nd amendment was about hunting? The second amendment is about the right to keep and bear arms. It says nothing about who or what you can shoot with them, nor under what circumstances. Constraints on hunting, self defense and militia training all continued without interruption through the time the 2nd amendment was ratified.
To everyone else:
There's nothing wrong with "unrestrained speculation about old people's language, customs and culture" so long as you actually back up these speculations with proof. The only flaw would be if you were falsifying the historical record so that you could hide the original meaning. Which isn't being done, unless you count the works of Bellesisles or Cornell.
What's wrong with unrestrained "interpretation" is that it isn't based on what's actually found in the constitution, nor is it based upon how that constitution was understood at the time it was drafted/amendmended. It's based on policy arguments and hand waving. Which is fine, if you're a legislative committee. Which the supreme court isn't.
The other problem with going wherever you want based on the power of unrestrained interpretation is that it basically pisses all over Article V. Altering the constitution is meant to be done, but there is a very particular and difficult process for doing so. A decent policy argument and 5 justices don't even come close to the 3/4s of the states and supermajority of both houses that have historically been required to rewrite the constitution.
(my bold)
"On Friday morning, I will be participating in a panel discussion on "Climate Change and Other 'Hot' Topics" at the Fifth Annual National Convention of the American Constitution Society. [...] I participated in a panel at the first ACS national convention five years ago, and had a rollicking good time." - Jonathan Adler
"On Wednesday I was on a panel here at Georgetown about the Roberts nomination that was sponsored by the American Constitution Society." - Randy Barnett
"I had a terrific time at the American Constitution Society convention this weekend. [...] The ACS convention is very similar to the Federalist Society's annual Lawyer's Conference. It covers many of the same topics, and even shares a number of the same speakers. [...] The Federalist Society's lawyer's conference has somewhat more balanced panels, but the ACS deserves credit for having a right-of-center presenter on most of their panels this year. [...] [M]y two favorite presentations of the conference were probably those given by Judges Alex Kozinski and Michael McConnell." (my bold) - Orin Kerr
"ACS Convention Balance:
I want to add to Orin's post about the ACS convention that, months ago, they invited me to speak on their panel on the Privileges or Immunities Clause. I was forced, regretfully, to decline because I was scheduled to be in Germany until Saturday afternoon. After I spoke at their Supreme Court Review at the National Press Club in June, they renewed their invitation and even considered the idea of reordering their program so the panel on Privileges or Immunities took place after my arrival at Dulles. [...]
Naturally, I was impressed with and grateful for their efforts to include me in their program and look forward to other such opportunities in the future." - Randy Barnett
I despair for an organization that has so many "accidents."
Who in federalist society ever said the 2nd amendment was about hunting?
Wait, did the Federalist Society repudiate Scalia's opinion in Heller? If so, then I take it all back. Scalia thinks the 2nd amendment is about hunting.
There's nothing wrong with "unrestrained speculation about old people's language, customs and culture" so long as you actually back up these speculations with proof.
That's my point - it's easy to find historical support for pretty much any reasonable speculation by cherry-picking. There's no such thing as "proof" of the way people long dead would have approached a particular question of interpretation.
As I said, it would be as easy to find historical support for the view that "Liberty" encompasses "Privacy" as it was for Scalia to find that "Bear" encompasses "Hunt".
You may have missed the joke. The anti-federalists were the party that did not believe in *ahem* a strong national government (a view shared, inter alia, by Jefferson, and, to a lesser extent, by Madison). Hamilton would be the antithesis of an anti-federalist, and was, in fact, a strong federalist. However, he would also be anathema to most current Federalist Society members which is why they have an image of Madison (and not Hamilton) as their logo.
As for the rest- while Jim at FSU is correct that the ACS defines many of their positions as being different than those of the FedSoc, it does not follow that their positions are less principled than those of the FedSoc, any more than saying that the GOP defines their positions on many issues as being different than the Democrats make their positions less principled than those of the Democrats.
The FedSoc, while it is big tent in many ways, often has an outcome-determinative feel to it. The same is true of the ACS. There are those within the big tent that have originalist methodologies, as well as those that do not. Different chapter organizations focus on different things. As with the FedSoc, it is is a way for people of generally like minds to network, meet, and debate with one another, and to sponsor events to hear opposing viewpoints.
The problem with Jim at FSU's statements (equating the FedSoc's position's with interpreting the Constitution, and everyone else with interpretation "based on policy arguments and hand waving") is that it ignores reality; when did the FedSoc members currently on the bench look to the penumbras and emenations of the 11th Am.?
In short, it is fundamentalism at its worst- the idea that you, alone, have a true vision of the text, and that everyone else is just wrong. More importantly, it overlooks two important principles:
1. We all stand on the shoulders of giants, so perhaps it is good to look at what has come before us and worked, instead of continually going back to divine the 'true' meaning of an over 200-year old document.
2. As historians, justices are good lawyers. Just as the Brandeis brief has faded away, I dread the emergence of competing Bellesisles briefs, with the issues to be revisited every two years as new evidence comes out about what, precisely, the true original expected application of a comma in a grammatical clause was in the late 1700s.
By this standard is not Stevens' dissent far more "extreme" ? Stevens does not look to original public meaning, but rather to original intent of the drafters. Furthermore he argued for a more narrow meaning for the right to keep and bear arms than Scalia (a neat trick to argue on one hand that history is an unreliable guide while on the other hand insisting on greater precision).
Lastly Stevens' treatment of "it" in Cruikshank was extremely asinine.
http://www.acslaw.org/node/7192
Oops, suppose it might help to give a link to what I was going on about.
Anyway, the point is that the ACS comprises basically everyone in the legal academy or judiciary who doesn't belong in the Federalist Society, which is to say that it's the organization for the legal establishment. You know: Griswold good, Roe sacramental, Heller bad, Carhart abominable. It's the received wisdom of the vast majority of your law professors. Why the establishment feels that it needs an organization is beyond me. If and when they come up with anything that departs from the Conventional Wisdom, please let me know.
Their mission is fundamentally not about debate, it's about "promoting progressive ideals." Let's put it this way- most years they have more active faculty members than active student members. Leftists overrepresented in legal academia? Say it ain't so. ACS is basically the student outreach division of the ABA.
And are you guys seriously suggesting that Heller stands for the proposition that the right to keep and bear arms is not predicated upon service in a militia but is instead predicated upon use of the firearm for hunting? I really hope you're just trolling me. I'll summarize- the opinion doesn't say that second part.
Perhaps you think it is "the most redundant" organization, but I disagree. What the FedSoc has done, to their credit, has been nothing short of amazing. They have managed to shape and frame the discourse to the point where the legal debate is now held on tems that are (in their belief) favorable to their side. They now (to mix my metaphors) occupy the higher ground. What was needed was an ideological counterweight to that concerted effort.
To give you a concrete example- not too long ago, it was received wisdom that the 2d Am. was not an individual right yada yada yada, and yet in Heller both the majority and the dissent was attempting to stake out their originalist bona fides. Whether you found either (or neither) position persuasive was beside the point- they were both using the language introduced by the FedSoc. In fact, they were getting their legitimacy from this interpretive framework.
Place this in a larger prism. If the 'legal orthodoxy' and 'legal rules' have gone against you, what better way to turn the tide than to require that all the previous rules (stare decisis) be thrown out the window and new rules be created based on our current idiosyncratic and ideologically-influenced ideas about what people thought over two-hundred years ago. Brilliant! Anytime you come across jurisprudence you don't like, you can simply argue that the jurisprudence is contrary to what you know the Constitution to require.
The best part is the simplicity- you are just doing what the Constitution commands. You can pick and choose the language (right of the people to keep and bear arms) while ignoring other language (the surplusage of the well-regulated militia, you can pick and choose the history (people knew it was about hunting, and self-defense, not the militia that was in the text), and you can pick and choose the result (well of course it doesn't command felons to get a gun!), and you can pick and choose the areas of the Constitution to focus on (privacy is not a penumbras, the 11th Am. has the uber-penumbra) while still saying that it's all stemming from the Constitution. Contrast that with the more honest, yet much longer, explanations that the ACS is forced to give.
None of the above is to say that I believe interpretation should be divorced from the text of the Constitution. The four corners of the text are always the anchor point. Unfortunately, the text rarely helps us solve the hard problems the Supreme Court deals with. To give one example:
"Congress shall make no law . . . abridging the freedom of speech, or of the press . . ."
Uh.... can Congress prohibit child pornography? Can Congress punish speech afterwards, or is this only for prior restraints? What about national security? Can a federal judge issue a gag order on the press if the judge believes that the press will interfere with the defendants 6th Am. right to a fair trial? How about prohibiting cigarette advertising on Saturday morning cartoons? This doesn't affect private defamation, so public figures should be able to sue, right? And so on . . .
The text is pretty clear, right? As Hugo Black put it, NO LAW MEANS NO LAW!
What we are objecting to is the wholesale reinvention of the commerce and general welfare clauses. We are sick of the supreme court giving iron clad protection to rights that have never (until recently) existed in the constitution while treating rights found in the text like they don't exist. The evolving standards of decency test is not found in the 8th amendment and it has no basis in pre-1960s constitutional law. Things like that.
One other thing that bothers me is that if you take certain constitutional positions, people start labeling you as a fascist or a misogynist or some sort of monster because you must be secretly after some result they don't like.
For example,
* I personally approve of allowing abortion as a public policy but I don't think that means it is in the constitution anywhere. Up till the 1960s, the states had the power to regulate contraception and abortion policy. What changed besides the minds of a few justices?
* I personally don't think we should execute people for burglarly, but that doesn't mean that the 8th amendment says we can't. We did it all throughout the history of this country. But we happened to get 5 anti-death penalty justices in 1972, so the constitution grew another limb.
* It may be good policy to ban people from selling drugs or possessing guns within 1000 feet of a school, but that doesn't mean an armed crack dealer is participating in interstate commerce when he does so.
* I am fine with gay people having sex with each other. I could not possibly care less about what consenting adults do to one another in the privacy of their own homes. That being said, even if we wholeheartedly approved of their conduct, it would still not protected by the constitution.
Jim - I take it from your lack of nuance and subtlety that you are not a lawyer and have not gone to law school. Law school might help someone like you if you want to engage like an adult in the rich controversies at issue.
Without getting into a long constitutional debate, I don't think the problem is that you have views normative views of what the Constitution means- my problem comes when someone (whether it is you or someone else) asserts that your view is the only possible correct one. We have a certain constitutional system - one that allows for gradual change, and one that has served us well. The founders were well aware of the common law tradition, and expected there to be some give in the Constitution, which is why there are many non-specific provisions. But you gloss over many major areas- the debate over what the 1st Am. meant (at least with regards to prior restraint or punishment) is one that touched off the Alien &Sedition Acts, with one side believing the A&S Acts were constitutional (as they were not a prior restraint) and the other believing they were not.
Making airy and grandiose claims like the "evolving standards of decency test is not found in the 8th amendment and it has no basis in pre-1960s constitutional" does nothing to advance the debate; it is a judicial construction to try and make Cruel &Unusual workable. I don't see 'strict scrutiny' anywhere in the Constitution either, yet I doubt you have much problem applying it.
If others label you a fascist or misogynist, it is likely not because of your constitutional preferences (any more I would hesitate to venture). It would appear to me that people seem to care greatly about 'certain cases' (namely abortion, gay rights, and the death penalty) and apply their originalist methodology there, yet fail to do so in a vast number of other areas (executive power, sov. immunity, 4th Am.). Orin Kerr has remarked on this blog that he has never met a 'true originalist' and I believe that he is correct.
In short, I do not begrudge you your normative opinions- stay in the game! But I rather dislike the use of the originalist club to beat others about when it so obviously is self-serving.
As an aside, it's usually because the way the principle is announced. For example, when I hear originalists complain about the Court, they always start with Roe. (Almost) always (some start with the commerce clause). Why is this? If it is just the principle, there are so many areas to look at!
1. The 11th Am.
2. Why we have an Air Force.
3. Why we have a standing army.
4. Erie (Justice Story was correct- the Founders did want the Fed. Judiciary to look at "THE Common Law" and the concurrence got it right- at most it was a question of statutory construction, not constitutional interpretation).
5. The Exceptions clause.
6. The Privileges or Immunities part of the 14th Am.
... and so on. But you get the idea. But if you want to win friends and influence people, start by showing how your rigorous framework ends with counter-intuitive results, instead of starting with the usual.
No, I meant that they only exist as an organization that opposes Federalist Society. There's no ideas under the hood.
Thank heavens for that. They can be lawyers instead of partisan operatives. Integrity may yet be restored to the DoJ.
The founders were well aware of the common law tradition, and expected there to be some give in the Constitution, which is why there are many non-specific provisions.
You do realize that you just made an Originalist argument, right? Heh heh heh...
I suppose this is what you were getting at when you said that both the majority and the dissent in Heller were arguing on Originalist grounds, i.e., the grounds that FedSoc had staked out. Perhaps you're right that FedSoc has managed to reframe Constitutional debate so that the (or at least "an") Originalist interpretation is considered by all the Justices.
On the other hand, I don't know if Originalism ever really went away. The great persuasive power of Originalism is that it's everyone's default position. When the original means of a Constitutional provision aligns with what liberals/progressives/whatever wish it to mean, their inquiry stops there. The Constitution doesn't live, breathe, change with the times, or evolve when the issue is, say, flag-burning; the original meaning will suffice. It's only when the left doesn't like the original meaning that the Constitution begins to draw breath.
It does seem, however, that for a while the Court stopped giving even a tip of the hat to Originalism. To the extent that FedSoc got the liberal justices to admit (or at least recognize) that winning on Originalist grounds is superior to Living-Constitutioning their way to their preferred outcome.
I think the watershed moment was "the famed sweet-mystery-of-life passage" in Casey. In one sentence, Kennedy unwittingly managed to summarize the hilarious ludicrousness of the Living Constitution school of interpretation. If that's what the Living Constitution is all about - the right to define the meaning of life - then it deserves to be mocked, and those who support it deserved to be laughed out of polite debate. And I think that's what happened: the legal establishment began to understand that they weren't doing Constitutional interpretation anymore, and hadn't been for some time. They'd have to start making serious arguments based in the text and history of the Constitution, and at that point, the left learned to respect originalism.
I think you misunderstand; first, no one should defend the overblown words of Justice Kennedy at his most opaque and overblown (see, also, Lawrence). Second, Casey was fundamentally a case about issues of constitutional reliance interests, one which has been recognized and addressed (and categorized by Scalia in WRTL). You may choose to agree or disagree with that, but Casey was certainly *not* a "living Constitution" case, a it drew back from a previous precedent that was broader.
But more importantly, you are not respecting the terms of the debate. There are ideologues on the left and the right. The ideologues on the left reach their predetermined conclusions without regard to the law; the ideologues on the right reach their predetermined conclusions without regard to the law. The interpretative philosophies, in the end, will not matter, in that they will always neatly dovetail with their ideologies. Non-ideological jurists will seek to achieve 'just' results (whether that be defined by 'fairness' or 'efficiency') through the consistent application of their jurisprudential philosophy, constrained by the appropriate authority, and applied to the facts of the instant case.
But you misunderstand- there was always reference to the document itself; even Brennan managed to fit in the text of the Constitution. What has changed is this pathological cherypicking of what little exists of the historical record, and poor historical analysis of the Justices.
Loki, I've been trying variations on the "so you're really Anti-Federalists" joke for years and no one has ever understood my meaning.
We've had this debate a million times and all that happens is the opponents of originalism/textualism trot out these familiar (and flawed) arguments:
1) The countless times Scalia has walked away from originalism or used sloppy reasoning. I'm not defending Scalia, I'm defending originalism. Scalia is not the avatar of originalism.
2) Accusations that I am denying the possibility of alternatives to my points of view. I'm simply asking for someone to show me an alternative that doesn't create bigger problems.
3) Arguments against literalism. I'm not arguing for literalism, a completely different school of interpretation. I'm arguing for a reasonable reading of the text as it would have been understood at the time it was ratified. Reasonable is not quite the same as literal. Judges aren't robots.
Anyway, to address some of your examples:
1. 11th amendment. I have no problem going back to the original meaning but I also recognize that there is no clean way to get there from here. Don't know how the trial bar would react to no more sovereign immunity.
2. Air Force was part of the Army for decades. It worked just fine. Navy had it's own Air Force as well. Still does, actually. Airplanes are just vehicles that fly. There's no logical reason the pilots have to report to a separate set of generals. The current trend is actually towards consolidation of command between the forces.
3. Congress has the power to raise armies. They've raised one. They haven't deactivated it. There isn't much we can do about this because there isn't a prohibition on congress maintaining an army indefinitely. At least I don't think there is one.
4. I don't know what to say about Erie. This is a hugely complicated area of the law. I'm not even certain Erie was wrong from an originalist point of view. Revisiting it is honestly an ultra-low priority for me.
5. Dunno what you mean by this. I know the clause, don't know which controversy you're talking about.
6. I think this is actually a great example. Sustantive due process is a complete joke. It's ungrounded in the constitution, it's an oxymoron and privileges and immunities is the right approach to this area of law. To hell with Slaughterhouse, it was decided wrong and everyone knows it.
Ideological conservatives have been quite successful in promoting neutral-sounding theories of constitutional interpretation, such as originalism and strict construction, and in criticizing judges with whom they disagree as judicial activists who make up law instead of interpreting it. The Constitutional Interpretation and Change Issue Group works to debunk the neutrality of those theories and expose misleading criticisms. It also articulates effective and accessible methods of interpretation to give full meaning to the guarantees contained in the Constitution.
Case in point: The Wages of Originalist Sin: District of Columbia v. Heller.
The ACS will be over-whemed with applications from firearm owners.
The "previous precedent" [is there any other kind of precedent? —Ed.] being <i>Roe</I>, <i>Doe</i>,<i>Eisenstadt</i>, and <i>Griswold</I>, any of which could be used to illustrate the inanity of the living Constitution.
There. Fixed it for you.
But more importantly, you are not respecting the terms of the debate. There are ideologues on the left and the right. The ideologues on the left reach their predetermined conclusions without regard to the law; the ideologues on the right reach their predetermined conclusions without regard to the law.
Sure. The good thing about Originalist ideologues, however, is that you can fact-check them with the historical record. If an Originalist says that the common-law rights of Englishmen in the 18th century included X, and you can demonstrate that they did not include X (and, better yet, mandated not-X), you have won the argument.
This is not possible with leftist adherents to the Living Constitution. For them, the Constitution means whatever the Zeitgeist, the fancies of liberal law professors, or five justices and the like-minded foreigners they selectively sample say it means.
The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.... JUSTICE BREYER’s assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself. (Emphasis in original.)
"Most [Americans] undoubtedly thought it even more important for self-defense"? Are you kidding me? That's sufficient analysis upon which to stipulate what the "central component" of the Second Amendment is?
If an Originalist says that the common-law rights of Englishmen in the 18th century included X, and you can demonstrate that they did not include X (and, better yet, mandated not-X), you have won the argument.
Does the Originalist have to demonstrate anything at any point? The problem is it usually goes like this:
If a self-described Originalist says that the common-law rights of Englishmen in the 18th century included X, and you call yourself an Originalist and say that they didn't include X (or, better yet, mandated not-X), and you and the other guy each come up with some plausible if spotty historical evidence for your side, then both Originalists think they have won the argument.
The point is that Originalism is so futile yet easy to game that it's not worth pretending to apply it in good faith. It just doesn't happen.
I have never ever heard an Originalist say, "well, in my opinion, the historical record is too weak to credibly support either side of this question" when in fact, that's what's true 99% of the time on the remaining undecided interpretive Constitutional questions. Every self-described Originalist can find some (often revisionist) historical straw to grasp to support their preferred outcome.
I have never ever heard an Originalist say, "well, in my opinion, the historical record is too weak to credibly support either side of this question" when in fact, that's what's true 99% of the time on the remaining undecided interpretive Constitutional questions.
You've heard it, but you probably don't realize it because the context in which you've heard it has been distorted. What you describe is the crux of Robert Bork's much-derided characterization of the ninth amendment as an "ink blot."
Bork's position is that it's impossible to say with any certainty what the ninth amendment meant at the time of ratification. Consequently, it cannot be used as a wellspring of whatever rights we decide deserve to be treated as constitutional rights.
Bork might not be correct; I don't know. But he is saying that there are limits on what we know about the Constitution.
The Originalist doesn't usually have to demonstrate anything because the Originalist is usually on defense. It is almost always the non-Originalist who bears the burden of proving that the Constitution provides a right that is not immediately obvious from the plain text or the known history.
Heller, of course, is the exception that proves the rule. I take no position on whether it was rightly decided, although I am pleased with the outcome.
This is the most revealing statement so far on this thread regarding the Originalist philosophy. :)
Originalists would be very unhappy if some highly compelling evidence were to turn up that, say, the Ninth Amendment was widely understood to include all kinds of specific rights, including a Privacy right, at ratification.
In my opinion, both the left and the right have their heads in the sand on the Second Amendment. So if we've all already agreed to abandon all reason regarding a plausible interpretation of that Amendment (i.e. we all prefer a Living Constitution approach to it), I feel no guilt in advocating a substantially restrictive "interpretation" on policy grounds.
And it's especially galling that Originalists are pretending that hunting and self-defense are appropriate yardsticks for defining the scope of the right.
Yes, because their principles would force them to accept legal results they did not want.
What could make the Living Constitutionalists unhappy in the same way?
Here's hoping that in the afterlife the wardheelers Rehnquist, O'Connor, Scalia, Kennedy and Uncle Thomas occupy their own exclusive circle of Hell where every day includes hunting with Dick Cheney.
Haha, that's funny!
While Originalism has some abstract appeal, it isn't practical. It isn't feasible, it's easily gamed, and as you point out, it has a tendency to produce results that are politically impossible (such as how Heller should have turned out on Originalist grounds). So it's become the last refuge of fools.
There can be principled Constitutional interpretation that isn't as subjective as "Living Constitution" and yet isn't as implausible as "Originalism". What angers me most about the recent Federalist Society attitude is that it chose to highlight the occasional over-reaching of the 20th century Courts, intentionally destroying those Courts' attempts to develop a Constitutional framework both objective and adaptive.
Think it's impossible to accomodate both objectivity and present applicability? That's because of the success of the Federalist Society (and its right-wing surrogates, of course).
If there was such a beast as you suggest, then surely someone would have written about it. Isn't part of the point of the academy to propose solutions that judges have not been able to achieve on their own? Surely you don't suggest that the Federalist Society controls so much of academia as to be able to silence all view points?
Most proponents of Originalism point out that its a place to start the debate. No one seriously advocates that it provides a final, absolute solution to all, or even many, of the problems we face today. But it does provide an honest starting point.
Finally, to one commenter above, if the text and the history do not provide a solution to the problem, then maybe judges shouldn't solve it? Why not defer to the legislature and the people?
Only real question: is it only foreign despots wearing red coats, or do local ones qualify as well?
I agree. Hunting a self defense are ninth amendment issues!
Of course, now that the court has spoken, the 2nd means exactly what Heller says it means.
It's probably for the best - if the court had found a right to own M2 Brownings, I think a countervailing amendment would have been proposed and likely passed.
Jim - so I assume we'll be reviving the Alien and Sedition Act any day now?
Exactly! It's obvious that Scalia came to the same conclusion, decided on an outcome that would be more popular, and then backed in some Originalist-sounding justifications. As usual.
The constitution clearly states that all citizens must enjoy equal protection under the laws. You can't make one law for blue haired people, and another for brown haired, unless you have a darn good reason for such a distinction.
Now, I will certainly admit that the founders never once gave a thought to gay anything. Yet, under the plain meaning of the clause, you cannot have one set of laws for straights and a different one for gays, unless you have a darn good reason.
However, many conservatives deny that gays should have any rights at all. Even Jim at FSU, though he claims that gays should have the right to have sex, states that our right to have sex is not protected by the constitution.
So who is right? To me, its clear -- the plain meaning of the language says equal protection. Neither Jim nor anyone else has given any reason why the state should be able to protect straight sex but not gay sex, much less having a 'darn good reason.'
Sorry -- but it's rather clear to me. Originalists are outcome determininitive. Despite what they say, they prefer certain outcomes. Proof? The FedSoc has never once argued in support of repealing sodomy laws.
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.