Notes From Babel

On Giving Effect to Constitutional Provisions Without Giving Rise to an Aristocracy

with 19 comments

I’ve heard it said that libertarianism is “a young man’s philosophy.”  This is proving true in my debate with James Hanley here, as evidenced by the excitability of my opponent.  But the debate has proven fruitful to the extent it urged me finally to begin to articulate the theory of constitutional interpretation I’ve been rolling around in my head for some time now. The project, in short, is to posit a way to interpret the Constitution’s ambiguous provisions in such a way that it would provide the protections for which they were designed, but without empowering judges to simply overturn any law they felt might be out of step with the “full implications of justice.”  The concept of an independent judiciary was and is, of course, of critical import to our American system of government, part of the genius of the Framers.  But only to the extent they continue to recognize we have a written constitution that reflects the will, purposes, and understanding of the people, who are the sovereign.  An independent judiciary, yes, but not an independent set of constitutional doctrines.  That would render the judiciary more than independent—it would render it supreme.

So here, albeit in very crude form, is my theory of how Constitutional case law that “goes beyond” the text can pretend to be legitimate.

Our Constitution was designed for the purposes of achieving a secure, ordered liberty to help perpetuate the existence and prosperity of the states, in turn founded upon the principle of self-rule and civic virtue.  To prevent a decline into “mob rule,” counter-majoritarian measures were adopted into the Constitution.  (Leave aside, for purposes of this crude outline, the differences in pre- and post-Civil War America, e.g., the models of Constitutional scrutiny and the shift of state power to the federal government.)  While the people wished to avoid mob-ocracy, they certainly did not desire to trade it for aristocracy.  Thus, while the Court was set up to be independent, it could not be said that the Court could act faithfully according to the purposes for which it was established in the Constitution if it purported to go too far afield of the text of that Constitution, which provided the only evidence of its instructions of the sovereign whom it served.

But neither could the Court fulfill its counter-majoritarian function if it simply bowed to the present will of the people.  Equally unacceptable would be an overly narrow view of the text as extending only to, say, what those who ratified the amendments intended by them.  In this regard, perhaps the Fourteenth Amendment would only apply to blacks, because they were the direct beneficiaries of that Constitutional language in 1868?  Surely not.  While the ratifiers had blacks in mind when they enacted the words “life, liberty, or property,” and “equal protection,” they certainly meant these as ideals that extended beyond blacks, and beyond those Americans then living.

But then we’re back to the first problem:  How does the Court extend these abstract principles without becoming an aristocracy?  The answer goes back to the purposes for which the Constitution, and its servant, the Court, were established: to maintain a secure, ordered liberty, with proper respect for the people’s right to democratic self-rule.  In consideration of these “prime directives” that the Court must all equally respect, it should become clear that the Court cannot extend the “liberty” principle or the “equality” principle, for example, without stamping out completely the right to democratic self-rule.  Indeed, as I briefly discussed here, our republic could not long last if the people’s right to govern themselves was stripped away.  True, this will mean that some infringements on liberty must be tolerated.  No one has ever pretended that ours is a perfect system of government, and most sober minded folks would concede that no such system exists anyway.

Thus, the question is, would  the regular exercise of self-rule, which frequently (if not by definition) infringes on some “liberty,” “property,” or “equality” interest, endanger the perpetuation of the republic?  In the case of racial distinctions, quite possibly.  Thus, the “strict scrutiny” doctrine.  In the case of same sex marriage?  Seems highly unlikely.  Thus, deference to the regular perpetuation of self-government must be given, even despite the fact that the abstract notion of “justice” might command a different result.

Justice is indeed an important ideal, one that judges certainly ought to keep in mind.  But a government cannot subsist on justice alone.  It requires the consent of its governed, and it requires laws which command their respect.  Alas, there is not a perfect correlation between citizens and just laws.  Again, sometimes injustices are too severe to be tolerated because they would endanger the integrity of the entire system of governance.  But this is quite a high standard to meet.  The important reality that judges too often neglect, in my opinion, is that they do not serve Justice herself as if she were another litigant before the court.  Judges serve the sovereign people.  To serve abstract principles, however noble they may be, is an ultra vires act.


Written by Tim Kowal

September 12, 2010 at 7:27 pm

19 Responses

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  1. How old are you, Mr. Kowal? I’m 45. I’ve lived long enough to learn that a gentle voice does not make discrimination any less of a cruel act.

    But I like the personal insult given without any evidence, which undermines your own attempt to take the moral high ground.

    Still, I would say that your general framework here appropriately describes the basic–and unavoidable–problem. But you make on crucial error, and thus it doesn’t lead you where you want to go.

    Your crucial error is that you judge the whole by whether it endangers the perpetuation of the republic. Then you ask what infringement on liberty would endanger the perpetuation of that republic. You say, “in the case of racial distinctions, quite likely.” But the republic was perpetuated for over a century and a half while in large parts of it we had explicit and extensive discrimination based on race. So using your standard, a self-governing people should be allowed to set up Jim Crow laws, or even slavery. I don’t think you want to accept that outcome.

    You forget about the purpose of that republic, which was not simply to be self-governing, but to protect the rights of the people to life, liberty, and the pursuit of happiness. If we perpetuate a self-governing republic that eviscerates those rights, would you conclude that the American experiment had been successful?

    Beyond that, you make no attempt to explain why you conclude “racial distinctions, no, sexual-identification distinctions, yes.” There’s no logical explanation of how you got there from your setup. You just assert it without explanation.

    James Hanley

    September 12, 2010 at 8:42 pm

  2. Ah, but age is a state of mind, no? Besides, I mean no insult. You yourself confessed to a short temper when confronted with constitutional views like the ones I advanced. I personally don’t find it makes for the most enlightening discussion, though they do make for entertaining ones. Here’s hoping the readers at your blog got their money’s worth out of our exchanges. For my part, I will carry no umbrage at anything said, which I hope is mutual. You have eleven years on me, by the way.

    As for your observations/criticisms, first, I do appreciate your taking the time to offer them. Perhaps I could be more clear about the purposes of the Constitution. I did say that they are to achieve “a secure, ordered liberty to help perpetuate the existence and prosperity of the states, in turn founded upon the principle of self-rule and civic virtue.” I do mean it when I include the word “liberty,” in the sense of a recognition of natural rights of the individual; and I also mean it when I say “secure,” in the sense that the fidelity to individual rights should not result in a “suicide pact.” And, of course, you know well my position about self-rule, which we’ve been debating at length this past couple of days. So, essentially, there’s the three-legged stool. Again, we’ve been debating about where to draw that line between liberty and self-rule, and obviously we draw it in different places. But I hope you do not doubt that I do draw that line?

    Frankly, I’m flummoxed that we are still stuck on racial discrimination and slavery. Under the proposed standard, if a law that so violates a liberty, property, or equality interest that it would “endanger the perpetuation of the republic,” then that law, surely, should be struck down by the judiciary. Racial discrimination nearly did lead to the destruction of the republic, so that’s an easy one. Gay rights seem to have progressed along quite well without much special help from the courts. Thus, under the proposed standard, there would be no legitimate reason to invalidate Prop 8 in the courts.

    Not to mention, SCOTUS itself concludes “racial distinctions, no, sexual-identification distinctions, yes,” in that it gives strict scrutiny to racial classifications and rational basis to sexual orientation. So my position here is certainly within the mainstream of legal thought. How do you explain why racial and sexual orientation distinctions ought to be treated the same under the Constitution?

    Tim Kowal

    September 12, 2010 at 10:12 pm

  3. Mr. Kowal,

    I am short-tempered because you are so smugly cavalier about denying other people the rights you enjoy.

    I also get short-tempered when dealing with people who persist in illogic and false facts. For example, you say that racial discrimination very nearly brought down the republic. That’s false. Slavery very nearly did. Legalized racial discrimination persisted for–at a minimum–a century after the end of slavery, without presenting anything like a threat to the continuation of the republic. When you present facts falsely, so that they are more supportive of your arguments, are you deserving of respectful consideration?

    And there’s little doubt that you were intending to be insulting. Far better to be honest about than to do it then pretend you really weren’t. I can respect an honest insult, but not someone too cowardly to stand by it.

    As to your final question, consider how long it took the Supreme Court to take racial discrimination seriously. It was nearly a century after enactment of the 14th Amendment–whose primary impetus was racial discrimination–before the Court began to take the concept of equal protection of the laws for racial minorities seriously.

    Now compare the case of sexual-orientation. It’s been a legal issue for less than my lifetime. Far from being any cause for wonder that the Court hasn’t recognized that denial of rights to homosexuals is in fact denial of equal protection, it’s a bit of a wonder the Court has moved as fast as it has. And the primary reason it hasn’t moved faster is because we have a number of conservatives on the Court who are simply from a different era, when almost nobody recognized that homosexuals were just humans like the rest of us. There was, of course, a time when almost nobody recognized that blacks were just humans like the rest of us.

    And I’m going to continue to insist that your fear of the end of self-governance if we’re not allowed to ban same-sex marriage is pretty ridiculous. We’ll still be able to vote for our representatives, to decide on tax rates, on whether our town should have wide boulevards or narrow windy streets, small lots and large houses, or large lots and small houses, whether our states are going to fund education lavishly or stingily, whether we’re going to have lots of parks, public transit, and youth sports or not. Whether we’re going to legalize prostitution or not. Whether our community will be rigidly zoned or build-what-you-want-where-you-want.

    There are a number of important things that are outside our right to self-governance. The Supreme Court has decided that we can’t force children to say prayers or recite the pledge of allegiance in school. It’s said that we can’t ban Jehova’s Witnesses from proselytizing. It’s said we can’t ban people’s right to own guns. It’s said we can’t discriminate against people moving from another state by denying them welfare or voting rights.

    What makes same-sex marriage the straw that breaks the camel’s back? Especially when you consider that marriage is generally considered a fundamental right. What you are asking self-governance to mean is the right of the majority to deny the minority a very important, a fundamental, right. If that’s what you mean by self-governance–the right to deny others equal rights–then I don’t want us to have your type of self-governance. I want us to have self-governance in which denial of equal protection of the laws is as rigidly excluded from our authority as is denial of freedom of religion.

    You seem focused on the Court only being able to strike down a law if it “so violates a liberty, property, or equality interest that it would ‘endanger the perpetuation of the republic.'” But as I noted, post-Civil War violations of the liberty and equality of blacks did not threaten the republic. So by your own standard, the Court could not have struck them down.

    The Constitution itself never sets as a standard that deprivation of rights is ok as long as it doesn’t threaten the republic. The Constitution sets a strict standard–an inescapable command. There shall be no law restricting freedom of religion. It doesn’t say, “freedom of religion can be restricted unless doing so threatens the republic.” Likewise, it doesn’t say, “equal protection of the law shall not be denied, unless doing so poses no threat to the perpetuation of the republic.” It simply says, “Equal protection of the law shall not be denied.” Period.

    Your use of the phrase “ordered liberty,” and your insistence on the self-governance issue strikes me as very reminiscent of Justice Breyer’s odious little book. I despise it for just the reason I’m critiquing your argument–it actually diminishes the value of the Constitution by limiting its constraining authority, turning from a firm law into a set of mere recommendations. (“The right to X shall not be denied, unless the people really really mean it.”)

    I’m surprised by the confluence between your thought and his, because conservatives–as I take you to be–tend not to like Breyer’s line of thought. So I’m curious as to whether you’ve read his book and have been intellectually influenced by it.

    James Hanley

    September 13, 2010 at 12:40 am

    • James,

      Slavery and racial discrimination were closely linked, though it’s true they are not the same thing. Following abolition, surely it can be said the discrimination that remained were vestiges of that evil institution worthy of being dismantled. But as a technical matter, you’re correct. I don’t see that it proves I have endeavored to “present facts falsely,” or that I “persist in illogic and false facts,” however. The relentless mean-spiritedness in your responses is ungentlemanly.

      On that note, perhaps it was ungentlemanly of me to have a jab at your “youthful excitability.” I thought it more playful than “insulting,” but I’ll take my plaintiff as I find him, and I backed away from that tone accordingly. I would expect reciprocation, but I fear that perhaps the invective is inexorably lodged in your soul.

      I’m just having a go.

      And I’m going to continue to insist that your fear of the end of self-governance if we’re not allowed to ban same-sex marriage is pretty ridiculous.

      Have you been insisting that? My apologies! I should have corrected you sooner and saved you some effort. I readily acknowledge there is no correlation between same-sex marriage and the end of self-governance. Whatever gave you the idea I thought otherwise?

      You seem focused on the Court only being able to strike down a law if it “so violates a liberty, property, or equality interest that it would ‘endanger the perpetuation of the republic.’” But as I noted, post-Civil War violations of the liberty and equality of blacks did not threaten the republic. So by your own standard, the Court could not have struck them down.

      Judicial acts striking down laws that make racial classifications are at the zenith of justifiability: it comports with the original understanding of the Fourteenth Amendment, and it addresses a social ill closely connected with a dangerous and deeply embarrassing flaw in our republic’s history. (On this note, I should point out that my proposal in this post was designed as a “companion” to originalism—i.e., where the original meaning is difficult or impossible to be discerned, resort to this proposed theory may be made.)

      The Constitution itself never sets as a standard that deprivation of rights is ok as long as it doesn’t threaten the republic. The Constitution sets a strict standard–an inescapable command. There shall be no law restricting freedom of religion. It doesn’t say, “freedom of religion can be restricted unless doing so threatens the republic.” Likewise, it doesn’t say, “equal protection of the law shall not be denied, unless doing so poses no threat to the perpetuation of the republic.” It simply says, “Equal protection of the law shall not be denied.” Period.

      I’m a little confused by this, because I know you understand this isn’t right. It’s the whole “shouting fire in a crowded theater” concept. There is no such thing in the Constitution as a right that can never be deprived.

      I’ve never read Breyer’s book.

      Tim Kowal

      September 13, 2010 at 9:21 pm

  4. […] response to our debate here, Mr. Kowal has made an effort to explain his political theory. It’s worth examining as another case study in my on-going […]

  5. Mr. Kowal, I believe I get your point. If I may:

    Yours starts with “judicial restraint,” and that where the Constitution is silent, it is silent.

    Regardless of the question-begging assertion that the 14th Amendment demands the establishment of same-sex marriage, clearly the Constitution is silent on sexuality. [Although Section 2 of 14A does acknowledge gender differences; but that’s a side point.] The analogy of race and sexuality is at best, well, an analogy, although it’s often asserted as Game Over. 14A never contemplated sexuality one way or the other.

    So what’s a judge to do where the Constitution is silent?

    Your argument is that it should defer to other constitutionally established mechanisms, in this case the democratically elected legislature[s], federal or state as the case may be, or in the case of constitutional amendment, the republican amendment process.

    However, if a judge is charged with coming up with the ‘just” result, it’s his judgment that is the authority.

    Now, in cases like SSM, one might reasonably say that 14A demands the establishment of SSM, or that it doesn’t, depends on your opinion, your reading of the tea leaves. Or less contentiously, that the Constitution permits both X and not-X. But these will not do, according to the current counterargument.

    If the judge, in this case Walker, wants to preclude the non-X of Prop 8, he must find that there is no rational basis for it. Hence, the scorched-earth argument you’re getting, that there are NO good arguments against SSM.

    But what are rational, valid arguments? Plato’s laws were ignored in Romer, which pretty much leaves us with social science as the final authority on what is a rational ordering of society. Since the brief history of social science in this area shows no red flags [and the academy being what it is, we would scarcely expect it to], clearly there is no “rational” basis for Prop 8.

    So, Plato’s out, social science is in. Where the Constitution is silent, the judge must speak.

    At least that’s my summary of your current discussion. Whether those premises and their conclusions hold is another matter, but I believe that’s the argument and justification for Judge Walker’s decision.

    tom van dyke

    September 13, 2010 at 2:55 pm

  6. Tom,

    This is an uncommonly insightful characterization. I very much appreciate your offering it. I would only reiterate that the mechanism I am trying to provide by this theory concerns how to determine (1) when the court should act and, relatedly, (2) what ends the judicial act should serve. It just cannot be the right result to confirm lifetime judges, tell them to “go do justice,” and then set them loose to do heaven knows what without recourse. It must be said that in everything they do, they account to some earthly power. To permit them to be accountable only to abstract notions of “justice” runs into a Bracton problem: that “the King should not be under any man, but is under God and the Law.” The American system, though recognizing tenets of natural law, was to put all government under the earthly sovereign of the people. The libertarian view that we should permit an exemption for the judiciary to counteract the vagaries of the people is just to restate Bracton’s words with the Court substituted for the King.

    Thus, all acts of the court must serve the people. Even those counter-majoritarian provision of the Constitution, though they do not serve the present will of the people, must be said to serve their implicit will and purpose in establishing the republic: that it persevere, and that it not permit laws that would lead to its ruin.

    That is the proposal set forth in this post, anyway.

    Tim Kowal

    September 13, 2010 at 8:42 pm

  7. Mr. van Dyke,

    How about, “where the Constitution is silent, government may not legislate?” You yourself note that the Constitution is silent on sexuality, so what gives government the authority to legislate on such? We do have a Constitution of delegated powers, and not one of inherent authority to legislate on all matters, do we not? (That is, in fact, a much more conservative approach to constitutionalism than what is being espoused by Mr. Kowal.)

    There is also the 9th Amendment.

    And there is still the plain text of the 14th Amendment’s equal protection clause. “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” Is it not a form of activism to say the meaning of this is limited only to certain cases.

    Hugo Black famously said of the First Amendment that “no law means ‘now law.'” I would make the same argument here, that “no denial” means “no denial,” and you supposed strict constitutionalists bear the burden of proof in demonstrating why “no denial of equal protection” should actually be read as “some denial of equal protection.”

    James Hanley

    September 14, 2010 at 10:48 am

  8. Dear Tim,

    I’m not certain it’s possible for anyone but the aristocracy to govern a society which uses currency, for the simple reason that “everybody has a price.” I suspect that a cabinet of middle-class people would merely ensure that a shadow government were operating behind the curtain.

    What do you think?



    September 14, 2010 at 11:10 am

    • Not sure what you’re getting at here. By “aristocracy” I refer to a ruling class of attorneys and judges who rule by issuing judicial opinions not actually authorized by law.

      Tim Kowal

      September 15, 2010 at 9:10 pm

      • I mean that since people can be, and are, bribed, governments “give rise to” aristocracy by the simple fact of their existence. I meant aristocracy in the sense I’m most familiar with, though, so nevermind about that previous comment.

        To address your post: I’m certain that the creation of a constitution ensures a litigious society for the simple reason that it creates a code which society must live by, rules to follow. Rules must be created by hotshots with authority. Those hotshots (or aristocracy) must stick around to safeguard, explain, and enforce those rules.

        Therefore, constitutions themselves give rise to aristocracy.

        Leave it to me to oversimplify, ha ha.


        September 16, 2010 at 9:53 am

  9. Since the states had plentiful laws on sexuality when the Constitution, 1A and 14A were ratified, I don’t see how they could be understood as nullifying existing state laws then or now.

    By contrast, the possibility that 14A could be read as demanding interracial marriage was a knowable possibility. [The Loving v. Virginia argument.] At some point, there must be some “tether” to the Constitution, or at least some argue there should be. Applying 14A to sexuality is poetic, analogous and abstract. One may accept race and sexuality as peas in the same pod, but it’s also rational arguable that each is sui generis.

    It might be an interesting argument on the federal level, but as we know, there are so many laws that exceed a minimal federal authority that it’s a non-starter for all real-world purposes.

    Mr. Kowal, you might go a bit too far from the basic point of “judicial restraint.” That the judge might defer to law instead of imposing his own view of justice might hold. However, the “will of the people” is more Ferench Revolution and Rousseau than the American and “rights endowed by their creator.”

    I found this Scalia lecture illuminating. Among othe rthings, he holds that the “natural law” understanding of jurisprudence ended in 1938 with Erie. In those “bad old days,” judges indeed looked up to the stratosphere, where a common law, a “natural law” was floating, and all judges had to do was pull it down and get “justice.”

    It’s the other side of the coin against lack of judicial restraint. Neither judges interpreting natural law nor will of the people are quite acceptable to us these days as each has its own tyranny.

    Meself, I’m more alarmed that application of “rational basis” as we see here will result in us being ruled by the social scientists. I can think of nothing worse, since social science can only tell us what is good in material terms. This is the death not only of theology, but of philosophy itself, and the realization of CS Lewis’ Abolition of Man.

    tom van dyke

    September 14, 2010 at 11:27 am

  10. Since the states had plentiful laws on sexuality when the Constitution, 1A and 14A were ratified, I don’t see how they could be understood as nullifying existing state laws then or now.

    Three answers.

    1. You’re assuming an originalism argument. I reject originalism, as do the vast majority of constitutional scholars. I hear there’s a single justice in the history of the Supreme Court and a whole bunch of people who’ve never studied Constitutional law who like it, though.

    2. The First Amendment did not originally apply to the states, but was only incorporated, piecemeal, in the 20th century, through the Due Process clause of the 14th amendment, to apply to the states. So whatever states did in 1789 isn’t exactly relevant.

    3. As has been noted and, I think, generally agreed upon, having an ancient tradition doesn’t make a discriminatory policy constitutional. For example, it took the Court a long time to realize that the constitutional right to an attorney actually had no affect for many people unless the state actually provided an attorney. That didn’t mean the past effective denial of the right to an attorney was in fact right back then, and only suddenly become not all right in the 1960s.

    That of course leaves us with the question of whether any particular policy–such as denial of SSM–is in fact one of those particular injustices that only appears OK because it has a tradition. That problem certainly remains. But it all means that you can’t just point to some past rule and say, “see, they did it then, so that proves it’s ok.” Even Scalia has admitted that.

    James Hanley

    September 14, 2010 at 12:34 pm

  11. You can reject originalism if you want, but you have to go further and decree that originalism is an invalid—irrational—method of constitutional interpretation. This is the “scorched earth,” and no less dogmatic than any other method.

    Further, as Mr. Kowal as touched on, once you untether the Constitution from any relation to how it was understood by its ratifiers, there are no limits to your power.

    You can abstract race into sexuality; eventually there are no limits to your abstractions. We will indeed be ruled by an aristocracy—philosopher-kings, and consent of the governed is obliterated.

    Further, “incorporation” that knows no bounds obliterates federalism, state authority over everyday life and Amendments 9 & 10. Leviathan is here.

    I do not think that the government unilaterally changing the terms of an agreement with the people [14A in this case] is good government, or good faith.

    But at heart, that race and sexuality are equal, and that all sexualities are created equal, is question-begging. If that assertion holds, the power of the state pre-empts all other powers of reason, and no dissent has a “rational basis.”

    This of course is tyranny, and it’s exacerbated by the appeal to authority, that of academic legal scholars and social scientists, which makes them our rulers for all and sundry purposes.

    This is the rule-by-aristocracy Mr. Kowal is trying to get at, I think.

    I prefer a bit of judicial humility that leaves room for the democratic/republican process, meself. Like Scalia’s criticism of judges trying to tap into a natural law, some legal theories try to tap into a “true” meaning of the Constitution.

    But sometimes, where the Constitution is silent, it’s silent. The question is whether it’s to be the legislative process or jurisprudence that fills in the gaps.

    I would argue the Constitution suggests we give the nod to the legislature, as the body closest to the consent of the governed, and as a duly and legally constituted body with clearly defined duties and limits, unlike the academic world of legal theory and social science.

    tom van dyke

    September 14, 2010 at 2:07 pm

  12. You can reject originalism if you want, but you have to go further and decree that originalism is an invalid—irrational—method of constitutional interpretation. This is the “scorched earth,” and no less dogmatic than any other method.

    Really? I must do “all” or “nothing?” But of course the world doesn’t work that way, Tom. I don’t have to do all or nothing, and I’ve never totally rejected every element of originalism. I think it’s good to start with the original purpose and goal they were trying to achieve, focusing especially on the principles the Framers were emphasizing. “Originalists” qua originalism try to restrain it to the original application.

    This is why it’s so funny that Tom says once we leave originalism completely behind there are “no limits to power.” I’m the one who’s actually arguing–based on broad application of the original principles–for a limitation on the government’s power. You guys, based on a limited approach restricted to the original application, are the ones who are arguing for more government power?

    Ironic, no?

    There’s an inevitable contradiction between saying you want a limit to government power, and then saying you want to vest more power in the legislature. Legislatures always expand their power. The U.S. Congress and the state legislatures, and of course executives, always push the boundaries to see what they can get away with. And the public doesn’t stop them. It’s a pipe dream to think the public will keep them to constitutional limits because they are in fact responding to what the public wants. In fact your very argument is that the public should get what it wants, which puts the onus for keeping to constitutional limits on the mass public–and since when have they shown any real understanding of the Constitution? Large numbers of them don’t really support even the First Amendment’s constraint on government power. (See here.)

    I’ve never quite understood–honestly–the complaint about non-originalist constitutional interpretation expanding government powers. An examination of cases in which it’s used showed it can actually go either way, but in general, because the Founders had a more limited view of the application of their big principles back then, originalism would frequently allow more government power to be used, than would an interpretive method that takes a broad application of those big principles approach.

    Only the Court has ever regularly limited the application of the power of government. Congress certainly hasn’t done so, and the executive has vigorously been expanding its power for decades. So those who claim to dislike expansions of government power really should like the Court more. But what I see is a big disconnect, where you say you don’t want big government power, but are here objecting to a court decision that directly works to limit government power.

    Is it too vitriolic for me to ask that you make up your mind?

    James Hanley

    September 15, 2010 at 5:00 am

    • Originalism would not grant more government power, but the same power, give or take. It’s hinted at in the very name. And as I’ve alluded to before, and I’m sure you understand, the power of the states was much greater in 1787 than it was after 1868. The Fourteenth Amendments did much to shift power away from the states. I would not fight that—the original meaning of the Reconstruction Amendments is as much a part of originalism as the original meaning of the Constitution and the Bill of Rights. The individual rights that were originally understood, I submit must still be enforced against state infringement. The Privileges or Immunities Clause was a sore loss, including the loss of economic and property rights. The Court should enforce those rights. The Court should not enforce new rights that the people have not themselves discovered. It may be painful to restrain themselves, but it is their job to do so.

      When you say “limitation on the government’s power” is an “original principle,” that’s true to an extent, but I believe you are abstracting it to suit new, non-original principles. The idea was never to effect wholesale limitations on government, but to effect particular limits.

      Tim Kowal

      September 15, 2010 at 9:46 pm

  13. Your argument elides the true point, an objection to the federal judiciary obliterating the rightfully vested powers of the state legislatures. It wasn’t as clever a counterargumnent as you must have thought.

    As for originalism, I’m sympathetic to “expected application,” but that 14A demands the creation of SSM is far from self-evident under any interpretation except the most abstract and poetic. The subject here was 14A, not particularly the Founders; contra your assertion, an originalist reading of 14A would yield it exactly the amount of power it was supposed to have, no more no less.

    tom van dyke

    September 15, 2010 at 1:37 pm

  14. […] of originalism as the proper mode of constitutional interpretation, and Van Dyke went so far as to suggest that once you untether the Constitution from any relation to how it was understood by its […]

  15. Professor Hanley, is not slavery racial discrimination at its most extreme?

    And you’re very quick to brand your dissenters as liars. There is this exchange we had a few days ago:

    Me–” You have already expressed your opinion that there is no room for debate on this subject(SSM)

    You–“That’s a lie. Why do you so regularly misstate others’ positions?”.

    I said you had already expressed your opinion that there is no debate on this subject based on our previous discussion. Here is what you said that led me to believe there is no debate:

    You, JH–“First, let me reiterate that when we’re talking about fundamental rights, the voters don’t get a say in it.”

    “The voters don’t get a say in it”. That’s just a stunning statement, coming from someone of your stature and someone who teaches Constitutional Law at a college level. I don’t think it’s a very large leap of logic to say you’ve pretty much shut the door on debate of this issue. Other than your opinion, has it ever been legally determined that same sex marriage is a “fundamental right”


    September 16, 2010 at 8:52 am

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