Originalism

[MarkD]

Here is Sen Chris Murphy explaining why he thinks of Neil Gorsuch as an extremist.
https://m.facebook.com/story.php?story_fbid=1514088615289290&id=908009612563863

Does it make any sense whatsoever to claim that originalism, as a philosophy of interpreting the Constitution, means that judges should ignore amendments to the Constitution that guaranteed women the equal right to vote and that banned slavery?

[Associate Justice PiT]

     The argument strikes me as specious. The Constitution is based on certain principles of government (and a whole lot of compromises too). Those principles don't change when the Constitution itself is changed.

[DC Al Fine]

     The argument strikes me as specious. The Constitution is based on certain principles of government (and a whole lot of compromises too). Those principles don't change when the Constitution itself is changed.

And then there's the other side of things. If you're not arguing based on the text and it's historical context, what else is there to argue based on. If you abandon textualism, you're basically have nine princes making laws by fiat.

[136or142]

     The argument strikes me as specious. The Constitution is based on certain principles of government (and a whole lot of compromises too). Those principles don't change when the Constitution itself is changed.

And then there's the other side of things. If you're not arguing based on the text and it's historical context, what else is there to argue based on. If you abandon textualism, you're basically have nine princes making laws by fiat.

Of course, but that's what virtually every judge and lawyer does.  The claims to the contrary are a Republican Party lie.

[MarkD]

And then there's the other side of things. If you're not arguing based on the text and it's historical context, what else is there to argue based on. If you abandon textualism, you're basically have nine princes making laws by fiat.

Precedents -- even those decisions that happened to have been wrong, which did not fulfill the intended meaning of the provisions of the Constitution that the Court purported to be interpreting. Don't forget that law school students get it drilled into them that they should follow the precedents in order to predict how the courts will rule next. (For the record, I'm an originalist/intepretevist, not a textualist.)

I've never been to law school, but I started intensely studying constitutional law about 26 years ago by reading Robert Bork's The Tempting of America. Bork taught me that there are three clauses in the Constitution that the Supreme Court has most frequently invoked as reasons for striking down laws that the Justices do not like, rather than because they were actually unconstitutional. Those three clauses are: 1) the Due Process Clause of the Fifth Amendment (applicable to the federal government), 2) the Due Process Clause of the Fourteenth Amendment, and 3) the Equal Protection Clause of the Fourteenth Amendment (the latter two being applicable to the state governments). There are other provisions of the Constitution which the Court has misinterpreted too, but those three clauses are the most frequently abused. In reading so many Supreme Court opinions about those three clauses, I have seen that the Court is far more interested in following its own precedents than in paying respect to what those clauses were originally intended to mean. Those clauses are the primary source of so much "fiat" comes from, but fiat has been done so often by the Court before, that it seems to them to be their responsibility to continue doing it.

It ought to be agreeable that giving the Constitution its correct meaning, every clauses' originally understood meaning, should be even more important than just following precedent. As Justice Felix Frankfurter said: "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it." As Justice Lewis Powell has said: "It is ... not only [the Court's] prerogative but also [its] duty to re-examine a precedent where its reasoning or understanding of the Constitution is fairly called into question." However, as Bork also said, there are sometimes that a precedent should not be overturned even if it was not the correct interpretation of the Constitution, if there are extremely strong practical reasons to not overturn. "But if a judge concludes that a prior decision was wrong, he faces additional considerations. The previous decision on the subject may be clearly incorrect but nevertheless has become so embedded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed now. This is a judgment addressed to the prudence of a court, but it is not the less valid for that. ... There are times when we cannot recover the transgressions of the past, when the best we can do is say to the Court, 'Go and sin no more.' " (From Tempting, pages 156, 158, and 159.)

[136or142]

And then there's the other side of things. If you're not arguing based on the text and it's historical context, what else is there to argue based on. If you abandon textualism, you're basically have nine princes making laws by fiat.

Precedents -- even those decisions that happened to have been wrong, which did not fulfill the intended meaning of the provisions of the Constitution that the Court purported to be interpreting. Don't forget that law school students get it drilled into them that they should follow the precedents in order to predict how the courts will rule next. (For the record, I'm an originalist/intepretevist, not a textualist.)

I've never been to law school, but I started intensely studying constitutional law about 26 years ago by reading Robert Bork's The Tempting of America. Bork taught me that there are three clauses in the Constitution that the Supreme Court has most frequently invoked as reasons for striking down laws that the Justices do not like, rather than because they were actually unconstitutional. Those three clauses are: 1) the Due Process Clause of the Fifth Amendment (applicable to the federal government), 2) the Due Process Clause of the Fourteenth Amendment, and 3) the Equal Protection Clause of the Fourteenth Amendment (the latter two being applicable to the state governments). There are other provisions of the Constitution which the Court has misinterpreted too, but those three clauses are the most frequently abused. In reading so many Supreme Court opinions about those three clauses, I have seen that the Court is far more interested in following its own precedents than in paying respect to what those clauses were originally intended to mean. Those clauses are the primary source of so much "fiat" comes from, but fiat has been done so often by the Court before, that it seems to them to be their responsibility to continue doing it.

It ought to be agreeable that giving the Constitution its correct meaning, every clauses' originally understood meaning[/i], should be even more important than just following precedent. As Justice Felix Frankfurter said: "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it." As Justice Lewis Powell has said: "It is ... not only [the Court's] prerogative but also [its] duty to re-examine a precedent where its reasoning or understanding of the Constitution is fairly called into question." However, as Bork also said, there are sometimes that a precedent should not be overturned even if it was not the correct interpretation of the Constitution, if there are extremely strong practical reasons to not overturn. "But if a judge concludes that a prior decision was wrong, he faces additional considerations. The previous decision on the subject may be clearly incorrect but nevertheless has become so embedded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed now. This is a judgment addressed to the prudence of a court, but it is not the less valid for that. ... There are times when we cannot recover the transgressions of the past, when the best we can do is say to the Court, 'Go and sin no more.' " (From Tempting, pages 156, 158, and 159.)

Given that the Constitution was written at a convention attended by more than 30 men, the idea that  any clause has one correct interpretation that all those people, or even a majority of those people agreed upon, is absurd.  It's so absurd I can't understand how any person with even a modest amount of intelligence could actually believe it.

For instance, why do you believe Justice Bork when he says his understanding of the Founder's 'originally understood meaning' of the clauses is the correct one?  The Justices who have ruled differently, rather than ruling on precedent, may simply have a different opinion of what the Framers of the Constitution were thinking (or a majority of the framers on any single statute or clause.)

This doesn't even take into account the idea that applying the general clauses in the Constitution to a specific legal case is a great deal more complicated than the simplistic nonsense of 'reading what the Constitution says and applying it.'

[MarkD]

Given that the Constitution was written at a convention attended by more than 30 men, the idea that  any clause has one correct interpretation that all those people, or even a majority of those people agreed upon, is absurd.  It's so absurd I can't understand how any person with even a modest amount of intelligence could actually believe it.

For instance, why do you believe Justice Bork when he says his understanding of the Founder's 'originally understood meaning' of the clauses is the correct one?  The Justices who have ruled differently, rather than ruling on precedent, may simply have a different opinion of what the Framers of the Constitution were thinking (or a majority of the framers on any single statute or clause.)

This doesn't even take into account the idea that applying the general clauses in the Constitution to a specific legal case is a great deal more complicated than the simplistic nonsense of 'reading what the Constitution says and applying it.'

Bork has not adopted any interpretation of any clause that no other law scholars, that no other Supreme Court Justices, have ever described as an interpretation that they arrived at. He respects the interpretations that are historically verifiable and were rendered by other interpreters who also cared about the intended meaning, rather than disregarding it. I see similar interpretations that Bork has made in the writings of Prof. David P. Currie and Justice Hugo Black. Bork's interpretation of the Coinage Clause in Article 1, Section 8 was once endorsed by a majority of the Supreme Court, until the Court reversed its precedent about one year later. (This interpretation - Bork's and a one-time majority on the Court - is that the Constitution does not authorize the federal government to print paper currency. And this is one of the examples in which he concedes that it is pragmatically implausible to try to reverse the Court's secondary interpretation, because declaring, now, that paper currency is unconstitutional would be utterly disastrous to society.) Much of the rest of what you say was rebutted by Bork in Chapter 8 of The Tempting of America. That chapter was entitled "Objections to the Original Understanding," and the first subsection of that chapter is entitled "The Claim that Original Understanding is Unknowable." I can't repeat it all here.

I have seen opinions written by Justices who did not care whether their interpretation of a clause is what the clause was intended to mean, as well as arguments by scholars that, like yours, tries to reject the premise that it is possible to know what was intended. One of most memorable,  to me, because it was the most fallacious, was Bernard Schwartz's The New Right and the Constitution. The first chapter of that book was entitled "Original Intent: The Impossible Dream." One of the things you said reminded me of that chapter.

[136or142]

Bork has not adopted any interpretation of any clause that no other law scholars, that no other Supreme Court Justices, have ever described as an interpretation that they arrived at. He respects the interpretations that are historically verifiable and were rendered by other interpreters who also cared about the intended meaning, rather than disregarding it. I see similar interpretations that Bork has made in the writings of Prof. David P. Currie and Justice Hugo Black. Bork's interpretation of the Coinage Clause in Article 1, Section 8 was once endorsed by a majority of the Supreme Court, until the Court reversed its precedent about one year later. (This interpretation - Bork's and a one-time majority on the Court - is that the Constitution does not authorize the federal government to print paper currency. And this is one of the examples in which he concedes that it is pragmatically implausible to try to reverse the Court's secondary interpretation, because declaring, now, that paper currency is unconstitutional would be utterly disastrous to society.) Much of the rest of what you say was rebutted by Bork in Chapter 8 of The Tempting of America. That chapter was entitled "Objections to the Original Understanding," and the first subsection of that chapter is entitled "The Claim that Original Understanding is Unknowable." I can't repeat it all here.

I have seen opinions written by Justices who did not care whether their interpretation of a clause is what the clause was intended to mean, as well as arguments by scholars that, like yours, tries to reject the premise that it is possible to know what was intended. One of most memorable,  to me, because it was the most fallacious, was Bernard Schwartz's The New Right and the Constitution. The first chapter of that book was entitled "Original Intent: The Impossible Dream." One of the things you said reminded me of that chapter.

I never wrote that it's entirely impossible to know what original intent is (or are), I wrote that the idea that there was ONE original intent is absurd.  I agree there are opinions that some judges have written where legal scholars say "how did they arrive at that judgement based on the statute?"

In regards to the other things you wrote:
1.How do you know that the Justices who Judge Bork claimed were not interpreting the statute correctly also don't have legal and historical scholars who back up their interpretations?  

2.That's fine that Judge Bork disagrees with me, that doesn't make me wrong.  It seems the only person you've read on this is Judge Bork.

[mencken]

And then there's the other side of things. If you're not arguing based on the text and it's historical context, what else is there to argue based on. If you abandon textualism, you're basically have nine princes making laws by fiat.

Precedents -- even those decisions that happened to have been wrong, which did not fulfill the intended meaning of the provisions of the Constitution that the Court purported to be interpreting. Don't forget that law school students get it drilled into them that they should follow the precedents in order to predict how the courts will rule next. (For the record, I'm an originalist/intepretevist, not a textualist.)

I've never been to law school, but I started intensely studying constitutional law about 26 years ago by reading Robert Bork's The Tempting of America. Bork taught me that there are three clauses in the Constitution that the Supreme Court has most frequently invoked as reasons for striking down laws that the Justices do not like, rather than because they were actually unconstitutional. Those three clauses are: 1) the Due Process Clause of the Fifth Amendment (applicable to the federal government), 2) the Due Process Clause of the Fourteenth Amendment, and 3) the Equal Protection Clause of the Fourteenth Amendment (the latter two being applicable to the state governments). There are other provisions of the Constitution which the Court has misinterpreted too, but those three clauses are the most frequently abused. In reading so many Supreme Court opinions about those three clauses, I have seen that the Court is far more interested in following its own precedents than in paying respect to what those clauses were originally intended to mean. Those clauses are the primary source of so much "fiat" comes from, but fiat has been done so often by the Court before, that it seems to them to be their responsibility to continue doing it.

It ought to be agreeable that giving the Constitution its correct meaning, every clauses' originally understood meaning[/i], should be even more important than just following precedent. As Justice Felix Frankfurter said: "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it." As Justice Lewis Powell has said: "It is ... not only [the Court's] prerogative but also [its] duty to re-examine a precedent where its reasoning or understanding of the Constitution is fairly called into question." However, as Bork also said, there are sometimes that a precedent should not be overturned even if it was not the correct interpretation of the Constitution, if there are extremely strong practical reasons to not overturn. "But if a judge concludes that a prior decision was wrong, he faces additional considerations. The previous decision on the subject may be clearly incorrect but nevertheless has become so embedded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions, that the result should not be changed now. This is a judgment addressed to the prudence of a court, but it is not the less valid for that. ... There are times when we cannot recover the transgressions of the past, when the best we can do is say to the Court, 'Go and sin no more.' " (From Tempting, pages 156, 158, and 159.)

Given that the Constitution was written at a convention attended by more than 30 men, the idea that  any clause has one correct interpretation that all those people, or even a majority of those people agreed upon, is absurd.  It's so absurd I can't understand how any person with even a modest amount of intelligence could actually believe it.

For instance, why do you believe Justice Bork when he says his understanding of the Founder's 'originally understood meaning' of the clauses is the correct one?  The Justices who have ruled differently, rather than ruling on precedent, may simply have a different opinion of what the Framers of the Constitution were thinking (or a majority of the framers on any single statute or clause.)

This doesn't even take into account the idea that applying the general clauses in the Constitution to a specific legal case is a great deal more complicated than the simplistic nonsense of 'reading what the Constitution says and applying it.'

If Congress passed a law saying "all traffic lights must have green at the bottom", there is a range of options for what hue could be placed at the bottom of the traffic light in reasonable accordance with the law. However, so long as it was considered green by the constituents of the time, most would say the traffic light is in accordance with the law. I would think most would concur that placing a red light at the bottom of the traffic light would be in violation of the law, even if ten of the congressmen who voted for the original law were colorblind and thought that was green as well.

[MarkD]

Bork has not adopted any interpretation of any clause that no other law scholars, that no other Supreme Court Justices, have ever described as an interpretation that they arrived at. He respects the interpretations that are historically verifiable and were rendered by other interpreters who also cared about the intended meaning, rather than disregarding it. I see similar interpretations that Bork has made in the writings of Prof. David P. Currie and Justice Hugo Black. Bork's interpretation of the Coinage Clause in Article 1, Section 8 was once endorsed by a majority of the Supreme Court, until the Court reversed its precedent about one year later. (This interpretation - Bork's and a one-time majority on the Court - is that the Constitution does not authorize the federal government to print paper currency. And this is one of the examples in which he concedes that it is pragmatically implausible to try to reverse the Court's secondary interpretation, because declaring, now, that paper currency is unconstitutional would be utterly disastrous to society.) Much of the rest of what you say was rebutted by Bork in Chapter 8 of The Tempting of America. That chapter was entitled "Objections to the Original Understanding," and the first subsection of that chapter is entitled "The Claim that Original Understanding is Unknowable." I can't repeat it all here.

I have seen opinions written by Justices who did not care whether their interpretation of a clause is what the clause was intended to mean, as well as arguments by scholars that, like yours, tries to reject the premise that it is possible to know what was intended. One of most memorable,  to me, because it was the most fallacious, was Bernard Schwartz's The New Right and the Constitution. The first chapter of that book was entitled "Original Intent: The Impossible Dream." One of the things you said reminded me of that chapter.

I never wrote that it's entirely impossible to know what original intent is (or are), I wrote that the idea that there was ONE original intent is absurd.  I agree there are opinions that some judges have written where legal scholars say "how did they arrive at that judgement based on the statute?"

In regards to the other things you wrote:
1.How do you know that the Justices who Judge Bork claimed were not interpreting the statute correctly also don't have legal and historical scholars who back up their interpretations?  

2.That's fine that Judge Bork disagrees with me, that doesn't make me wrong.  It seems the only person you've read on this is Judge Bork.

1. Let's stick to judicial review, rather than interpretation of statutes, please. Of course there are lots of scholars who agree with the interpretations rendered by Justices who, in Bork's opinion, and mine, were not being guided by the original understanding of the provision in the Constitution that they were interpreting. As Bork revealed, there are many law scholars who are non-originalists. Some are non-originalists in the sense that they consciously reject the philosophy of originalism, while others claim to support the philosophy, but nonetheless end up distorting the original meaning via their own interpretations. Prof. John Hart Ely -- who passed away in 2003 and who wrote one of the most fascinating, entertaining books ever written on the topic of judicial review Democracy and Distrust (1980) -- is one of the latter. Ely backed up the Warren Court and argued that it very rarely misinterpreted the Constitution.

2. Wrong. I never said that I only have read Bork, and I would know better than to come to my conclusions -- that I choose to be an originalist, and that there are certain clauses of the Constitution in which truly objective interpreters of law can see that there is only one correct interpretation of what those clauses were intended to mean -- without reading the works of other notable scholars/judges. One of my favorite essays on the topic of interpretation of law is the essay "How Far Is a Judge Free in Rendering a Decision?" by Judge Learned Hand. Justices Oliver Wendell Holmes and Hugo Black are my favorites Justices. Prof. Ely's Democracy and Distrust had some excellent arguments and some very flawed arguments too (which is to say that I completely agree with Bork's assessment of that book). Prof. David P. Currie's two-volume The Constitution in the Supreme Court was also excellent and very informative. Two major differences between Currie and Bork: 1) both were originalists, but Bork was very sanctimonious about whether originalism is the only valid philosophy, and Currie never talked that way  (sanctimoniously), 2) Currie praised the Warren Court very strongly, in a way that Bork would not dream of praising it, and came to some very different conclusions about whether  the Warren Court was wrong as often as Bork said it was wrong.

[136or142]

Bork has not adopted any interpretation of any clause that no other law scholars, that no other Supreme Court Justices, have ever described as an interpretation that they arrived at. He respects the interpretations that are historically verifiable and were rendered by other interpreters who also cared about the intended meaning, rather than disregarding it. I see similar interpretations that Bork has made in the writings of Prof. David P. Currie and Justice Hugo Black. Bork's interpretation of the Coinage Clause in Article 1, Section 8 was once endorsed by a majority of the Supreme Court, until the Court reversed its precedent about one year later. (This interpretation - Bork's and a one-time majority on the Court - is that the Constitution does not authorize the federal government to print paper currency. And this is one of the examples in which he concedes that it is pragmatically implausible to try to reverse the Court's secondary interpretation, because declaring, now, that paper currency is unconstitutional would be utterly disastrous to society.) Much of the rest of what you say was rebutted by Bork in Chapter 8 of The Tempting of America. That chapter was entitled "Objections to the Original Understanding," and the first subsection of that chapter is entitled "The Claim that Original Understanding is Unknowable." I can't repeat it all here.

I have seen opinions written by Justices who did not care whether their interpretation of a clause is what the clause was intended to mean, as well as arguments by scholars that, like yours, tries to reject the premise that it is possible to know what was intended. One of most memorable,  to me, because it was the most fallacious, was Bernard Schwartz's The New Right and the Constitution. The first chapter of that book was entitled "Original Intent: The Impossible Dream." One of the things you said reminded me of that chapter.

I never wrote that it's entirely impossible to know what original intent is (or are), I wrote that the idea that there was ONE original intent is absurd.  I agree there are opinions that some judges have written where legal scholars say "how did they arrive at that judgement based on the statute?"

In regards to the other things you wrote:
1.How do you know that the Justices who Judge Bork claimed were not interpreting the statute correctly also don't have legal and historical scholars who back up their interpretations?  

2.That's fine that Judge Bork disagrees with me, that doesn't make me wrong.  It seems the only person you've read on this is Judge Bork.

1. Let's stick to judicial review, rather than interpretation of statutes, please. Of course there are lots of scholars who agree with the interpretations rendered by Justices who, in Bork's opinion, and mine, were not being guided by the original understanding of the provision in the Constitution that they were interpreting. As Bork revealed, there are many law scholars who are non-originalists. Some are non-originalists in the sense that they consciously reject the philosophy of originalism, while others claim to support the philosophy, but nonetheless end up distorting the original meaning via their own interpretations. Prof. John Hart Ely -- who passed away in 2003 and who wrote one of the most fascinating, entertaining books ever written on the topic of judicial review Democracy and Distrust (1980) -- is one of the latter. Ely backed up the Warren Court and argued that it very rarely misinterpreted the Constitution.

Fine, so you admit that you agree with Bork that only he has the correct 'original' interpretation of The Constitution and that all other Constitutional scholars who also claim to base their views on originalist intent who disagree with Bork's interpretation are wrong.

Where did Justice Bork get this rather divine power from?

[136or142]

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I don't think this is an accurate analogy.  A traffic light and the color of the light are concrete.  The ideas expressed in The Constitution and the Bill of Rights are abstract.   The range of interpretations about an abstract idea are clearly going to be much wider.

[SteveRogers]

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I don't think this is an accurate analogy.  A traffic light and the color of the light are concrete.  The ideas expressed in The Constitution and the Bill of Rights are abstract.   The range of interpretations about an abstract idea are clearly going to be much wider.

This.

The traffic light example is fine as a demonstration of statutory interpretation. But constitutions are written to serve a different purpose than statutes, and consequently the Constitution is written in terms of very broad principles that don't lend themselves well to any one fixed interpretation for all time. 

[MarkD]

Even Justice Joseph Story adhered to the philosophy of originalism -- the original intent.
From Story's Commentaries on the Constitution of the United States: "The first and fundamental rule in the interpretation of all instruments is, to construe them according to the terms, and the intention of the parties."
Bork said that "interpretivism," in the way that Prof. Ely described it, means the same thing as originalism. Ely's famous book, that I referred to before, Democracy and Distrust , defined interpretivism this way: "[Interpretivism holds] that judges deciding constitutional cases should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution." "[T]he work of the political branches is to be invalidated only in accord with an inference whose underlying premise, is fairly discoverable in the Constitution. That the complete inference will not be found there -- because the situation is not likely to have been foreseen -- is generally common ground." "Interpretivism does seem to retain the substantial virtue of fitting our ordinary notion of how law works: if your job is to enforce the Constitution then the Constitution is what you should be enforcing, not whatever may happen to strike you as a good idea at the time. Thus stated, the conclusion possesses the unassailability of a truism, and if acceptance of that were all it took to make someone an interpretivist, no sane person could be anything else." "The suggestion," made by interpretivists, "is usually that the various provisions of the Constitution be approached essentially as self-contained units and interpreted on the basis of their language, with whatever interpretive help the legislative history can provide, without significant injection of content from outside the provision." Yes, the intentions of those who made the clause that judges are interpreting matter. "It would be a mistake -- albeit an understandable one in light of the excesses one witnesses at the other extreme -- to dismiss 'the intent of the framers' as beside any relevant point. Something that wasn't ratified can't be part of our Constitution, and sometimes in order to know what was ratified we need to know what was intended. ... Neither am I endorsing for an instant the nihilist view that it is impossible ever responsibly to infer from a past act and its surrounding circumstances the intentions of those who performed it."

[MarkD]

Ely's book is one of the best -- most entertaining and thought-provoking -- that has ever been published on the topic of judicial review. Bork said Democracy and Distrust contains "many enlightening arguments and observations." Bork especially liked Chapter 3: that chapter "is devastating and, for many of us, highly entertaining. I recommend it highly."
But Ely said that the "standard form of interpretivism runs into trouble -- trouble precisely on its own terms, and so serious as to be dispositive. For the consotutional document itself, the interpretivist's Bible, contains several provisions whose invitation to look beyond their four corners -- whose invitation, if you will, to become a noninterpretivist -- cannot be construed away.
"Constitutional provisions exist on a spectrum ranging from the relatively specific to the extremely open-textured. ... The Fourteenth Amendment -- and ... the Ninth Amendment is similar -- contains provisions that are difficult to read responsibly as anything other than quite broad invitatiins to import into the constitutional decision process considerations that will not be found in the language of the or the debayes that led up to it."
Once again, Ely says that the intentions of those who adopted an amendment do matter . But, "the most important datum bearing on what was intended is the constitutional language itself." [Emphasis in the original.] "This is especially true where the legislative history is in unusual disarray -- as is certainly the case with the Fourteenth Amendment. ... [M]any of the records of the Fourteenth Amendment's ratification debates have not survived. Thus the only reliable evidence of what 'the ratifiers' thought they were ratifying is the language of the provision they approved."

Are there any other provisions in the Constitution than the Ninth and the Fourteenth Amendments that are vague?

"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

"No State shall make or enforce any law which shall abridge the Privileges or Immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law."

Ely says, correctly, that the Due Process Clause should be taken at face value, which means that the Clause ensures fair procedures, but does not protect  substantive rights.  But Ely, in my carefully considered opinion, is incorrect about interpretting the other two clauses in the Fourteenth broadly, and I reject Ely's interpretation of the Ninth as well. Bork was wrong about the intended meaning of the Ninth as well. Justices Story, Stewart, and Black had the correct interpretation of the Ninth.

[136or142]

So, tell me then  why shouldn't the right to bare arms only apply to muskets that were used in or before 1787?

That is what was meant by 'arms' in 1787 as they were the only arms that were available to the average person then.  There are some half truths that the 2nd Amendment 'advocates' (liars) tell about air rifles.

[politicallefty]

So, tell me then  why shouldn't the right to bare arms only apply to muskets that were used in or before 1787?

That is what was meant by 'arms' in 1787 as they were the only arms that were available to the average person then.  There are some half truths that the 2nd Amendment 'advocates' (liars) tell about air rifles.

Thank you, and I agree with your premise, but I don't think we have to go that far to find a regulatory clause in the Second Amendment. I read the prefatory clause of the Second Amendment to be far more limiting than most. I don't know how an orginalist can somehow dismiss the text itself which begins with "A well regulated Militia, being necessary to the security of a free State...". Somehow, those on the right seem to ignore that part and only focus on the words after.

I don't consider myself to be an originalist, but I am quite fond of textualism. I think the text of the Constitution must be understood and interpreted in the time that it is being evaluated. And I think those interpreting the Constitution must err on the side of liberty unless it's an otherwise expressed power. For example, I think the Fourteenth Amendment easily grants same-sex couples the right to marry.

The problem is that liberals have allowed the right to usurp the label of textualism. Textualism is neither liberal nor conservative. To a certain extent, the closest I can think of that sort of jurisprudence is Hugo Black, except that I think he saw the Equal Protection Clause in too limiting terms. It is my belief that if the Fourteenth Amendment's protections were to be limited to race, it would say so.

[MarkD]

Continuing a quote from Ely that I had above:
"Constitutional provisions exist on a spectrum ranging from the relatively specific to the extremely open-textured. At one extreme -- for example the requirement that the President "have attained to the Age of thirty five years" -- the language is so clear that a conscious reference to purpose seems unnecessary. Other provisions, such as the requirement that the President be a 'natural born Citizen may need a reference to historical usage so as to exclude alternative constructions. ... Others, such as the First Amendment's prohibition of congressional laws 'abridging the freedom of speech' seem to need more. For one thing, a phrase as terse as the others I have mentioned is here expected to govern a broader and more important range of problems. For another, and this may have something to do with the first, we somehow sense that a line of growth was intended, that the language was not intended to be restricted to its 1791 meaning. [Emphasis added.] This realization would not phase Justice Black or most other interpretivists: the job of the person interpreting the provision, they would respond, is to identify the  sorts of evils [emphasis in original] against which the provision was directed and to move against their contemporary counterparts. Obviously this will be difficult, but it will remain interpretivism."
As Prof. Ronald Dworkin said, "Suppose I tell my children simply that I expect them not to treat others unfairly. I no doubt have in mind examples of the kind of conduct I mean to discourage, but I would not accept that my 'meaning' was limited to those examples, for two reasons. First, I expect my children to apply my instructions to situations I had not and could not have thought about. Second, I stand ready to admit that some particular act that I thought was fair when I first spoke was in fact unfair, and vice versa, if one of my children is able to convince me of that later; in that case I should want to say that my instructions covered the case he cited, not that I changed my instruction. I might say that I meant the family to be guided by the concept of fairness, not by any specific conception of fairness I might have had in mind." (From "Taking Rights Seriously.")
Dworkin's first point is completely agreeable to those of us who are originalists/interpretivists. Interpret what the principle was intended to be and apply that principle to circumstances that those who adopted the provision of the Constitution you are interpreting did not and could not have thought about. Dworkin's second point is more problematic, not as easy to agree with. But the first point, and what Ely said above, is enough to rebut your silly musket example.

[MarkD]

The problem is that liberals have allowed the right to usurp the label of textualism. Textualism is neither liberal nor conservative. To a certain extent, the closest I can think of that sort of jurisprudence is Hugo Black, except that I think he saw the Equal Protection Clause in too limiting terms. It is my belief that if the Fourteenth Amendment's protections were to be limited to race, it would say so.

Thank you. Black believed that the Equal Protection Clause had four major premises: 1) racial equality, 2) equality between citizens and aliens (see Graham v. Richardson, 1971 -- opinion written by Justice Blackmun and agreed upon unanimously by the Court, including Black), 3) every voter's equal right to elect state legislators (see Reynold v. Sims, 1964), 4) the "rational basis test" to all of the rest of the kinds of discrimination that occur (knowing that the RB test is a very deferential standard).

But take a look at the majority opinion in The Slaughter-House Caeses in the early 1870s.
"We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision."
And look at Strauder v. West Virginia, 1880, regarding the Equal Protection Clause: "What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color?"

[politicallefty]

Thank you. Black believed that the Equal Protection Clause had four major premises: 1) racial equality, 2) equality between citizens and aliens (see Graham v. Richardson, 1971 -- opinion written by Justice Blackmun and agreed upon unanimously by the Court, including Black), 3) every voter's equal right to elect state legislators (see Reynold v. Sims, 1964), 4) the "rational basis test" to all of the rest of the kinds of discrimination that occur (knowing that the RB test is a very deferential standard).

I'm sorry, but are you agreeing or disagreeing with me? Is your point that textualism should be read as Justice Black read it or read in contemporary terms? While I highly respect Justice Black, I think he read the Constitution in contemporary times. He was part of the unanimous Loving decision at a time when the American people were staunchly opposed to such an idea. The notion that the Framers of the Fourteenth Amendment ever conceived of such a ruling nearly a century later is absurd.

Let me put it this way: how would you have ruled in Obergefell? It's difficult (though perhaps not impossible) to find an orginalist argument in support of that decision. I think it's very easy to find textualist support.

You must be logged in to read this quote.

It's my understanding that most constitutional scholars and those that apply the law today that the Slaughter-House Cases were not correctly decided.


How would you describe your own judicial philosophy?

[MarkD]

Based on my posts so far I would think the answer is obviously that I am an originalist/interpretivist. I agree with the philosophy that Prof. Ely called "Clause-bound Interprevitism," and which, based on the way he explained what that means, is the same thing as originalism.

I'm gay. The Windsor and Obergefell decisions absolutely did not give me any feeling of "gay pride." Neither of them fulfilled what the Due Process Clause of the 5th and 14th Amendments, the Equal Protection Clause (which I have been talking about repeatedly in this thread) were intended to mean. Furthermore, the Court's opinion in Windsor came about 2 inches from saying that sexual orientation IS a choice. Do you want to see the quote?
I have seen these decisions coming for many years, and I wish I could have done something to prevent them from happening. Now that they have happened, I don't think there is going to be any reversal of them, so now what I would rather do is cement them in the Constitution be adopting a constitutional amendment that rewrites Section 1 of the 14th Amendment, to make its meaning narrower and clearer, and also clarifying the meaning of the Due Process Clause of the 5th and the entire 9th. In the rewrite, I suggest that we include a sexual orientation clause and then makes these things clear: Loving was correctly decided only on Equal Protection basis -- racial classifications are invidious -- Windsor, and Obergefell were correctly decided based on the premise of sexual orientation equality (using a balancing test, not a strict scrutiny test), BUT marriage is NOT a "fundamental right" protected by any clauses in the Constitution. Hugo Black would have never dreamed of saying that it was protected. Hugo Black would not have said that gay people have to be treated as the equal of straight people under any clauses -- only that a policy which is "discriminatory" towards gay people should be examined with the "rational basis test," which as I've already said is a very deferential legal test. Black and five other Justices deferred to Congress and the Immigration and Naturalization Service when it chose to deport a gay man just because he was gay -- see Boutilier v. INS, 387 U.S. 118 (1967)
https://supreme.justia.com/cases/federal/us/387/118/case.html

Oh, ... and I was thanking you for saying that textualism is neither liberal nor conservative, and for demonstrating that you understand and largely respect Justice Black.

[136or142]

Based on my posts so far I would think the answer is obviously that I am an originalist/interpretivist. I agree with the philosophy that Prof. Ely called "Clause-bound Interprevitism," and which, based on the way he explained what that means, is the same thing as originalism.

I'm gay. The Windsor and Obergefell decisions absolutely did not give me any feeling of "gay pride." Neither of them fulfilled what the Due Process Clause of the 5th and 14th Amendments, the Equal Protection Clause (which I have been talking about repeatedly in this thread) were intended to mean. Furthermore, the Court's opinion in Windsor came about 2 inches from saying that sexual orientation IS a choice. Do you want to see the quote?
I have seen these decisions coming for many years, and I wish I could have done something to prevent them from happening. Now that they have happened, I don't think there is going to be any reversal of them, so now what I would rather do is cement them in the Constitution be adopting a constitutional amendment that rewrites Section 1 of the 14th Amendment, to make its meaning narrower and clearer, and also clarifying the meaning of the Due Process Clause of the 5th and the entire 9th. In the rewrite, I suggest that we include a sexual orientation clause and then makes these things clear: Loving was correctly decided only on Equal Protection basis -- racial classifications are invidious -- Windsor, and Obergefell were correctly decided based on the premise of sexual orientation equality (using a balancing test, not a strict scrutiny test), BUT marriage is NOT a "fundamental right" protected by any clauses in the Constitution. Hugo Black would have never dreamed of saying that it was protected. Hugo Black would not have said that gay people have to be treated as the equal of straight people under any clauses -- only that a policy which is "discriminatory" towards gay people should be examined with the "rational basis test," which as I've already said is a very deferential legal test. Black and five other Justices deferred to Congress and the Immigration and Naturalization Service when it chose to deport a gay man just because he was gay.

1.Where does the Constitution provide a breakdown of what are and are not 'fundamental rights?'

I don't believe it does, so your view on that is your personal opinion and no more or less valid than anybody else's.

That aside:
1.Marriage itself may or may not be a right, but there are about 30 rights and responsibilities that are attached to marriage.

And
2.Marriage is a government institution.  My interpretation of the equal protection and due process clauses are that governments need valid reasons to discriminate in favor of one group or against another group.  The view at the time of the writing of the Constitution was that homosexuality was a mental disorder that through gay sex led to all sorts of additional mental or physical disorders.   This was still widely believed up till around 1980.

It's now pretty much agreed that that is all nonsense.  As Keynes said "When the facts change, I change my mind.  What do you do, sir?"

So, back then there were considered valid reasons for wanting to prevent homosexual relations.  Now, society knows there aren't.  To say that the Supreme Court should have to read into the Constitution only with the knowledge that existed in 1787 is a rather bizarre philosophy.  Where does the Constitution itself say that's how it should be interpreted?

And, if that's the case, we get back to what I wrote earlier (which you ignored, no surprise.)  Then the Second Amendment definition of 'arms' is a musket that was in use on or before 1787 and any gun used now can be Constitutionally outlawed.

[MarkD]

Based on my posts so far I would think the answer is obviously that I am an originalist/interpretivist. I agree with the philosophy that Prof. Ely called "Clause-bound Interprevitism," and which, based on the way he explained what that means, is the same thing as originalism.

I'm gay. The Windsor and Obergefell decisions absolutely did not give me any feeling of "gay pride." Neither of them fulfilled what the Due Process Clause of the 5th and 14th Amendments, the Equal Protection Clause (which I have been talking about repeatedly in this thread) were intended to mean. Furthermore, the Court's opinion in Windsor came about 2 inches from saying that sexual orientation IS a choice. Do you want to see the quote?
I have seen these decisions coming for many years, and I wish I could have done something to prevent them from happening. Now that they have happened, I don't think there is going to be any reversal of them, so now what I would rather do is cement them in the Constitution be adopting a constitutional amendment that rewrites Section 1 of the 14th Amendment, to make its meaning narrower and clearer, and also clarifying the meaning of the Due Process Clause of the 5th and the entire 9th. In the rewrite, I suggest that we include a sexual orientation clause and then makes these things clear: Loving was correctly decided only on Equal Protection basis -- racial classifications are invidious -- Windsor, and Obergefell were correctly decided based on the premise of sexual orientation equality (using a balancing test, not a strict scrutiny test), BUT marriage is NOT a "fundamental right" protected by any clauses in the Constitution. Hugo Black would have never dreamed of saying that it was protected. Hugo Black would not have said that gay people have to be treated as the equal of straight people under any clauses -- only that a policy which is "discriminatory" towards gay people should be examined with the "rational basis test," which as I've already said is a very deferential legal test. Black and five other Justices deferred to Congress and the Immigration and Naturalization Service when it chose to deport a gay man just because he was gay.

1.Where does the Constitution provide a breakdown of what are and are not 'fundamental rights?'

I don't believe it does, so your view on that is your personal opinion and no more or less valid than anybody else's.

That aside:
1.Marriage itself may or may not be a right, but there are about 30 rights and responsibilities that are attached to marriage.

And
2.Marriage is a government institution.  My interpretation of the equal protection and due process clauses are that governments need valid reasons to discriminate in favor of one group or against another group.  The view at the time of the writing of the Constitution was that homosexuality was a mental disorder that through gay sex led to all sorts of additional mental or physical disorders.   This was still widely believed up till around 1980.

It's now pretty much agreed that that is all nonsense.  As Keynes said "When the facts change, I change my mind.  What do you do, sir?"

So, back then there were considered valid reasons for wanting to prevent homosexual relations.  Now, society knows there aren't.  To say that the Supreme Court should have to read into the Constitution only with the knowledge that existed in 1787 is a rather bizarre philosophy.  Where does the Constitution itself say that's how it should be interpreted?

And, if that's the case, we get back to what I wrote earlier (which you ignored, no surprise.)  Then the Second Amendment definition of 'arms' is a musket that was in use on or before 1787 and any gun used now can be Constitutionally outlawed.

You're right that the Constitution does not say that. The phrase "fundamental rights" was invented by the Court when Justices made up their minds that they want to strike down laws that do not violate any rights that are enumerated in the Constitution. I did not say -- I did not mean to say -- that there are "fundamental rights" protected by the Constitution even though those rights were not enumerated in the Constitution. The context in which I was saying what you put in bold has to do with what I want to PUT in the Constitution now by adopting an amendment that rewrites Section 1 of the 14th Amendment. I want to put in the Constitution what rights the states may not violate, and tell the federal courts that THEY may not declare any substantive, un-enumerated rights are protected from being violated by the states. The 14th Amendment was not intended to have that meaning, and it was mistake for the Supreme Court to ever start interpreting the 14th that way. I want to tell the Supreme Court (and the rest of the federal judiciary), via a constitutional amendment, to stop it at once. The states should have never been forced to give federal courts "valid reasons" for adopting the laws they want to adopt. Would the states have ratified the 14th in the 1860s if they knew most or all of their laws were going to be scrutinized that way by federal courts?

I agree society has changed its mind about its diagnosis of homosexuality. That fact means that we can now adopt a constitutional amendment that will address equality between LGBT on the one hand and the heterosexual, cisgender majority. The change in public attitudes does not change the original meaning of the Equal Protection Clause of the 14th Amendment.

I did not at all ignore your comment about interpreting the 2nd Amendment. I responded to it. You can't look past the end of your nose. No surprise.

[politicallefty]

Based on my posts so far I would think the answer is obviously that I am an originalist/interpretivist. I agree with the philosophy that Prof. Ely called "Clause-bound Interprevitism," and which, based on the way he explained what that means, is the same thing as originalism.

I'm gay. The Windsor and Obergefell decisions absolutely did not give me any feeling of "gay pride." Neither of them fulfilled what the Due Process Clause of the 5th and 14th Amendments, the Equal Protection Clause (which I have been talking about repeatedly in this thread) were intended to mean. Furthermore, the Court's opinion in Windsor came about 2 inches from saying that sexual orientation IS a choice. Do you want to see the quote?

I mistyped my response to the second quote.

I wasn't asking you if you agreed with the majority in Obergefell. I was asking if you agreed with the outcome. Personally, I agreed with the result, but I would have arrived there through different means. Looking at the text of the Fourteenth Amendment and considering marriage law throughout the country, I would have ruled that bans on same-sex marriage were unconstitutional as a violation of the Equal Protection Clause. Any other interpretation has no relevance, including whether or not marriage itself is a fundamental right.

I would hope that as you agree with me that textualism is neither liberal nor conservative, that you would also agree that textualism is not necessarily originalist.

[136or142]

Based on my posts so far I would think the answer is obviously that I am an originalist/interpretivist. I agree with the philosophy that Prof. Ely called "Clause-bound Interprevitism," and which, based on the way he explained what that means, is the same thing as originalism.

I'm gay. The Windsor and Obergefell decisions absolutely did not give me any feeling of "gay pride." Neither of them fulfilled what the Due Process Clause of the 5th and 14th Amendments, the Equal Protection Clause (which I have been talking about repeatedly in this thread) were intended to mean. Furthermore, the Court's opinion in Windsor came about 2 inches from saying that sexual orientation IS a choice. Do you want to see the quote?
I have seen these decisions coming for many years, and I wish I could have done something to prevent them from happening. Now that they have happened, I don't think there is going to be any reversal of them, so now what I would rather do is cement them in the Constitution be adopting a constitutional amendment that rewrites Section 1 of the 14th Amendment, to make its meaning narrower and clearer, and also clarifying the meaning of the Due Process Clause of the 5th and the entire 9th. In the rewrite, I suggest that we include a sexual orientation clause and then makes these things clear: Loving was correctly decided only on Equal Protection basis -- racial classifications are invidious -- Windsor, and Obergefell were correctly decided based on the premise of sexual orientation equality (using a balancing test, not a strict scrutiny test), BUT marriage is NOT a "fundamental right" protected by any clauses in the Constitution. Hugo Black would have never dreamed of saying that it was protected. Hugo Black would not have said that gay people have to be treated as the equal of straight people under any clauses -- only that a policy which is "discriminatory" towards gay people should be examined with the "rational basis test," which as I've already said is a very deferential legal test. Black and five other Justices deferred to Congress and the Immigration and Naturalization Service when it chose to deport a gay man just because he was gay.

1.Where does the Constitution provide a breakdown of what are and are not 'fundamental rights?'

I don't believe it does, so your view on that is your personal opinion and no more or less valid than anybody else's.

That aside:
1.Marriage itself may or may not be a right, but there are about 30 rights and responsibilities that are attached to marriage.

And
2.Marriage is a government institution.  My interpretation of the equal protection and due process clauses are that governments need valid reasons to discriminate in favor of one group or against another group.  The view at the time of the writing of the Constitution was that homosexuality was a mental disorder that through gay sex led to all sorts of additional mental or physical disorders.   This was still widely believed up till around 1980.

It's now pretty much agreed that that is all nonsense.  As Keynes said "When the facts change, I change my mind.  What do you do, sir?"

So, back then there were considered valid reasons for wanting to prevent homosexual relations.  Now, society knows there aren't.  To say that the Supreme Court should have to read into the Constitution only with the knowledge that existed in 1787 is a rather bizarre philosophy.  Where does the Constitution itself say that's how it should be interpreted?

And, if that's the case, we get back to what I wrote earlier (which you ignored, no surprise.)  Then the Second Amendment definition of 'arms' is a musket that was in use on or before 1787 and any gun used now can be Constitutionally outlawed.

You're right that the Constitution does not say that. The phrase "fundamental rights" was invented by the Court when Justices made up their minds that they want to strike down laws that do not violate any rights that are enumerated in the Constitution. I did not say -- I did not mean to say -- that there are "fundamental rights" protected by the Constitution even though those rights were not enumerated in the Constitution. The context in which I was saying what you put in bold has to do with what I want to PUT in the Constitution now by adopting an amendment that rewrites Section 1 of the 14th Amendment. I want to put in the Constitution what rights the states may not violate, and tell the federal courts that THEY may not declare any substantive, un-enumerated rights are protected from being violated by the states. The 14th Amendment was not intended to have that meaning, and it was mistake for the Supreme Court to ever start interpreting the 14th that way. I want to tell the Supreme Court (and the rest of the federal judiciary), via a constitutional amendment, to stop it at once. The states should have never been forced to give federal courts "valid reasons" for adopting the laws they want to adopt. Would the states have ratified the 14th in the 1860s if they knew most or all of their laws were going to be scrutinized that way by federal courts?

I agree society has changed its mind about its diagnosis of homosexuality. That fact means that we can now adopt a constitutional amendment that will address equality between LGBT on the one hand and the heterosexual, cisgender majority. The change in public attitudes does not change the original meaning of the Equal Protection Clause of the 14th Amendment.

I did not at all ignore your comment about interpreting the 2nd Amendment. I responded to it. You can't look past the end of your nose. No surprise.

Oh, so that's what your long block quoting Ely was about.  Hidden in unplain sight.

Yes, this is more and more what I expected: the 'originalist' interpretation should be used when it agrees with my opinions.  The " the language was not intended to be restricted to its 1791 meaning" (1787?) should be used when I don't like when the most common 'originalist' interpretation doesn't agree with my opinion.

Either you're an 'originalist' or you're not and either my musket example applies or it doesn't and you calling it a 'silly example' in no way makes it so. I've had enough of you. Your inability to write in plain English but needing to use the legal jargon makes it clear to me you're just mindlessly regurgitating what you've read and don't have a clue what any of it actually means.


Good bye.

I'm placing you on ignore.

Just to add: I think that highlighted quote proves my point all the more that there is no such thing as an 'originalist' interpretation of the Constitution.  'Originalist': The Constitution means exactly what it says, at the time it was written, no more and no less, except for all the things that were left out because they didn't think of it or for brevity sake. But, what things were left out are subject to the interpretation of only a conservative Supreme Court Justice.  And, if a Supreme Court makes a decision that I don't like based on a different interpretation of what was left out, then the Constitution means exactly what it says, at the time it was written, no more and no less.

In regards to the 14th Amendment, did Congress and the states specifically say that courts were not supposed to overturn their legislation based on the Equal Protection Clause?

I suggest, rather than looking at what these authors wrote about it, why don't you go to the source documents and read over the actual debates and then make up your own mind, if you have the ability to do so.

As far as I'm concerned, since it's not specifically excluded by the Amendment, I think the Amendment itself is fairly clear as to mean that all people are to be treated equally by the government, unless there are valid reasons to discriminate:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Finally, My personal view on the Second Amendment is that the Framers meant for individuals to be able to defend their personal security with whatever 'arms' of the day were manufactured, whether they knew that 'arms' other than muskets would ever be manufactured.  However, I think this right was clearly meant  to be balanced against other rights meaning that only 'arms' that are proportionate to dealing with the vast majority of threats are protected by the Second Amendment.