Recess Appointments*

by Ugh

Today SCOTUS heard arguments on NLRB v. Noel Canning, regarding when the President can make so-called recess appointments to fill vacancies in Executive Branch positions that require Senate confirmation, without Senate confirmation.  

This is allowed by Art. II, Sec. 2, which reads in pertinent part "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

To me, this boils down to two questions, which are when is the Senate in "recess," and, once determined, does the power apply only to vacancies that arise when the Senate is in recess or vacancies that exist at the time of recess no matter when they arose.  

It seems that the answer to the latter question is that the text is fairly clear, POTUS can fill vacancies that happen "during" the recess of the Senate.  If they happen when the Senate is in session, too bad.  The counter-argument is that there is a longstanding practice to the contrary ("any vacancy will do"), but that doesn't seem persuasive enough to override the text.

The issue then becomes, when is the Senate in recess, other than between the two sessions?  Like most things, the Constitution doesn't provide a clear answer.  It does state that the Senate "may determine the Rules of its Proceedings."  So, perhaps we should ask the Senate whether it was in recess as there is little else to go on in the Constitution and when to start/end sessions seems to fall squarely within the rules of proceedings.  The answer from the Senate in this case is that it was not.  Case closed, Obama's appointments to the NLRB are invalid, and the NLRB's decisions made without a quorum are simliarly invalid.

I guess the hard question is, given the longstanding practice of making appointments in a manner that is now unconstitutional, do we have to unwind any decision ever made by a recess appointee that did not meet the now more clearly defined procedure?  The government raised this issue at argument, but I would expect the Court to either punt by saying that whether such a decision is retroactive to all appointees is not before them, or to just state that their decision applies in this case and all recess appointments made after the date the opinion is published.  

I find this interesting because it seems a rare case where Congress punched back at the Executive Branch in a way that really mattered.  IIRC, this first took place back when Bush was President and the Senate started holding pro forma sessions to thwart the recess appointment power.  If the Senate wins, at it seems it will, then maybe we'll see more of this.

*Playground, 1:30pm.

222 thoughts on “Recess Appointments*”

  1. I think this is one of the rare cases where indeed all sides (branches and parties) abuse the vagueness on a regular base for purely partisan purposes and crying foul about it at the same time. But at the same time all also become victims. No clean hands here.
    The spirit of the law and its origibnal purpose is clear. Once the senate was regularly out of session for long periods of time and it was not possible to have emergency sessions due to slow travelling speeds. So there had to be a way to fill unexpected serious vacancies. The idea to try to regularly fill posts with persons that could never get confirmed or blocking all candidates by having pseudo sessions and never voting on confirmations would have been abhorrent to the guys who came up with the law. But it has become the norm. In essence it torpedoes the whole idea of nomination-plus-confirmation (in both directions). If we extrapolate, in case of divided government POTUS will (have to) try to fill all posts without regard for the opinion of Congress and Congress will try to leave ALL posts vacant in order to keep the enemy from governing at all. The only (tolerable*) clear-cut solution would be to do away with the presidential system and go parliamentary so divided government would become possible only within Congress.
    *I assume a Chinese or Russian model is out of question for obvious reasons (except for those who do not like democracy in the first place).

  2. There’s a long standing practice that cars travel 45 mph on the residential street in front of my house. The black letter law says 35 mph.
    Does long standing practice make 45 = 35? I think not. In the case of statutes that apply to citizens, we recognize that violations of the statute do not mean that the statute means something else, they merely means that some people are not committed to obeying the law. We should reason the same way about the law that applies to the government, the Constitution: Practice contrary to it doesn’t change it, it just confirms the common sense notion that not everybody in government is committed to obeying the Constitution, and the answer is enforcement, not pretending that 45=35.
    There never was a good case for allowing “recess” appointments when the Senate is not in recess, and the administration’s position, which essentially would have allowed a recess appointment if ever the Senate had a bathroom break after the vacancy occurred, was an absurd over-reach.
    The real question for the Court, which they may punt, is whether the President, a vacancy having genuinely occurred during a real recess, may wait until the recess is over, and then make a recess appointment with the Senate in session. It makes no sense from the original justification of the clause to permit this, (In fact, no recess lasts long enough to justify this, today.) but the textual argument for it at least doesn’t require violating basic rules of grammar.
    This is probably where the Court will decline to go as far as the lower court did, if they don’t wholly embrace that very sensible ruling.

  3. “If we extrapolate, in case of divided government POTUS will (have to) try to fill all posts without regard for the opinion of Congress and Congress will try to leave ALL posts vacant in order to keep the enemy from governing at all.”
    I suppose the difference is that the former is a constitutional violation, and the latter is just bad policy.

  4. There is always the question of how to interprete the ‘advise and consent’ clause. There is consent that it means that the senate can vote down a nominee (i.e. vote ‘no consent’). Where there is no consent is whether the senate can simply not consider a nominee. In short, does the clause bind only the president or the senate too? I assume the authors of the text never got the idea that the senate could simply refuse to vote up or down (or even refuse to vote on whether to start a debate on that), so they did not write something about that. So, the courts will have to decide (but probably wriggle out of it again).
    In short: I agree with you of POTUS being in violation but I do not exclude the possibility that the senate may also be (I actually think it is but ianal).

  5. This appears to be a situation in which “Everyone connected with it deserves censure,” in the words of a long-ago movie critic panning a piece of Hollywood schlock.

  6. IMO the President gambled on this one, will probably lose, and should probably lose per the letter of the law.
    Regarding “overreach”, I did listen to one of the Senate “sessions” yesterday, in its entirety, re-broadcast on the radio. It took about a minute, and consisted of:
    1. The session opening.
    2. A clerk citing chapter and verse about why the person who was chairing the session was entitled to do so.
    3. The chair adjourned the session.
    So, in a nutshell, utter bullshit. But, utter bullshit with the force of law behind it, so, legally binding utter bullshit. Which in fact is nothing new.
    I appreciate the POTUS’ effort and interest in calling them on it, but I suspect he is going to lose this one, and IMO a simple and non-tortured reading of the text of the Constitution requires that he lose this one.

  7. Time to dust off Art 2 Section 3:
    “[The President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper”
    So if Bohner and Reid disagree, Obama can tell them “Get the f*ck outta town!” and *presto*, time to make recess appointments.

  8. Don’t know how the court will rule, but the law provides rules for statutory interpretation (which could also apply to Constitutional provisions), one of which is that words are given their plain meaning except when the results of such interpretation is absurd or unjust.
    It seems that if the Senate is making a mockery of the President’s power to appoint executive officers, thereby derailing the possibility of the President exercising his Constitutional powers, that’s an absurdity that should be interpreted out of whatever “plain meaning” allows the Senate’s action.

  9. House and Senate actions during this President’s terms are a sham of a mockery of an absurdity of a shamery:
    http://www.youtube.com/watch?v=HsGWdGhYKtY
    Not safe for work (yet another absurdity)
    Next time there is a Republican President, don’t expect a quorum in either the House or the Senate for at least four years.

  10. I watched a half-hour of Cspan2 yesterday. Chuck Grassley was speaking. His message was that the Senate is suffering from the abuse of CLOTURE by those dastardly Democrats. He railed against majority rule on the grounds that majorities can change the rules so as to entrench themselves in power. (Voter ID laws are not that, silly.) He trotted out the cooling saucer chestnut.
    Naturally, he was speaking to an empty chamber.
    On the recess appointment business, I will be fascinated to see how the authoritarian wing of the SCOTUS will manage to rule such that “this President” is wrong, but future Republican presidents can do what they damn well please.
    –TP

  11. I will be fascinated to see how the authoritarian wing of the SCOTUS will manage to rule such that “this President” is wrong, but future Republican presidents can do what they damn well please.
    they’ll simply do it, and then respond to criticism with “well where were you when Obama did it?”

  12. It seems that if the Senate is making a mockery of the President’s power to appoint executive officer
    I agree with this. I’d say it is self-evidently so. I’d say a one-minute meeting, held solely for the purpose of its own adjournment, perverts the original intent of being “in session”.
    Perhaps the SCOTUS will see this as a case were the spirit, rather than the strict letter, of the law should win the day.
    IMO that would be fabulous.

  13. There never was a good case for allowing “recess” appointments when the Senate is not in recess
    Brett, we have a situation where 90% of the Senators are home for a month, but a couple who live close get together every day or two for 30 seconds, just to avoid the Senate being “in recess” and never doing any business. Technically, the Senate has not recessed. But for all practical purposes, they are — and no appointments are being dealt with the whole time. Which (no Senate available to confirm, or not, an appointment) is exactly what recess appointments were intended to deal with.
    I will grant that, since the Senate these days frequently refuses to even allow a vote on nominees, the point may be moot. But the question I would ask is: What was the Original Intent of recess appointments? And why should not that intent govern what is allowed today?

  14. The original intent of recess appointments was to allow vacancies to be filled when the Senate was not available to confirm, for an extended period. Not to allow him to fill vacancies when the Senate refused to agree with who he nominated.
    And if we let that intent govern, there will be no recess appointments at all.

  15. According to Wiki, W. made 171 recess appointments, but none of them came after Reid started holding pro forma sessions of the Senate to prevent any further recess appointments, from which we can infer that he didn’t think he had the power to do so. Also per Wiki, Obama had made 32 recess appointments as of January 5, 2012, but it seems the legal challenge didn’t come until he made appointments that conflicted with the pro forma sessions.
    Note also that the Constitution provides that neither House of Congress can adjourn for more than three days during a session without the consent of the other House. And it seems it is undisputed that the House of Representatives did not consent to the Senate adjourning during the time Obama made the appointments at issue (and is, AFAICT, why we have a Democratic controlled Senate holding pro-forma sessions).

  16. “Not to allow him to fill vacancies when the Senate refused to agree with who he nominated.”
    “him”?
    “he”
    Methinks you mean Barack Obama, not the previous 43 Presidents or The President, other than Lincoln, who was dispatched by other means.
    “refused to agree”
    When did the Constitution guarantee the right to agreement? Lets get rid of elections too.
    Refusing to agree is what happens here at OBWI, where no governing happens.
    “Refused to confirm and permit the Executive Branch to govern, regardless of agreement” would be more like the current state of things.
    Blow it the f*ck up.

  17. I’m curious, can somebody offer support for the concept that the Recess Appt. Clause was intended to combat political intransigence on the part of the Senate?
    The General’s oral arguments rested heavily on the concept that the clause was intended to give the president power to appoint when the senate was willfully not confirming people.
    I didn’t think he offered much support for that concept during oral arguments, and I’m not familiar with much (but I’m curious if there is some out there).
    As it stands for me, this seems to be a case of executive overreach, even if its driven by senate intransigence. I worry that if the SC rules for the president (which I think is unlikely, given how oral arguments went), it would basically make the senate irrelevant in nominations.

  18. it also says he made 15. Wiki needs to update itself!
    but yeah, Obama has explored some new (and very shaky) ground here. alas for him.
    still, the originalists had no apparent problem when a Republican was recess-appointing people.

  19. I think Brett is right on substance in his 12:10 PM, the intent was nominations when the senate was unavailable, a condition mostly absent these days. So, many ‘recess appointments’ (by presidents of both parties) do violate at least the spirit of the law. I think most of us here agree on that. Where we (seem to) disagree is whether the behaviour of the senate (refusing to do its job while pretending to do so based on formalities) does so too or may even be in violation of the letter.
    Personally, I expect another pure doubletalk decision by a 5:4 majority on SCOTUS that in essence declares it illegal for Dems and will see it as legitimate for GOPsters.
    If it was up to me, there’d be a legal option for POTUS to send the senate an ultimatum: ‘Vote up or down until date X or I will do a recess appointment’. One could also give the senate a similar ultimatum power to replace a recess appointee when POTUS does not nominate one the regular way for a vote (the recess appointee would keep his position if the senate failed to either vote or lacked a majority). That would be similar to the ‘constructive vote of no confidence’ that in the German constitution allows the maneuvre only by voting in a successor but not in the destructive way of voting out and refusing to vote in a successor in order to sabotage government itself.

  20. A reasonable compromise would be to limit the Senate’s ‘advise and consent’ role to cabinet level officers and Supreme Court appointments.**
    I mean really….ambassadors? The Senate Dems got too worked up about John Bolton and should have saved their ammo for more important things….like ending the filibuster once and for all. ‘Bout time. They had quite a stockpile.
    **Of course this would require a Constitutional Amendment….no chance of that.

  21. Huh, different pages on Wiki. This one says 171, citing a CRS report.
    The distinction cited here would be that Obama did it between pro forma sessions, and that was “too far” prompting the litigation, and then all arguments were on the table, including ones beyond just the pro forma session issue.

  22. On the recess appointment business, I will be fascinated to see how the authoritarian wing of the SCOTUS will manage to rule such that “this President” is wrong, but future Republican presidents can do what they damn well please.
    Make it a “one-off” kind of ruling. I understand there is a relatively recent infamous precedent in this regard.

  23. It seems that the answer to the latter question is that the text is fairly clear, POTUS can fill vacancies that happen “during” the recess of the Senate. If they happen when the Senate is in session, too bad.
    A vacancy is an ongoing state, but ‘happen’ seems to indicate a single point in time (ie the actual time when the office became vacant). So, does ‘happen’ here mean ‘begin’, or does it mean ‘in that state at this point in time’? I think either makes sense (from a modern perspective on the language).
    Given that the intent of the clause was to prevent critical positions from going unfilled during long recesses, I would say that even if the vacancy began before the Senate went into recess, the original intent would have allowed for a recess appointment- bear in mind the long communications delays of the period meant that a vacancy could occur days before the Senate went into recess, but the news could fail to reach Washington until the recess had begun.
    The issue then becomes, when is the Senate in recess, other than between the two sessions? Like most things, the Constitution doesn’t provide a clear answer. It does state that the Senate “may determine the Rules of its Proceedings.” So, perhaps we should ask the Senate whether it was in recess as there is little else to go on in the Constitution and when to start/end sessions seems to fall squarely within the rules of proceedings. The answer from the Senate in this case is that it was not. Case closed…
    Just because the Senate makes its own rules doesn’t mean that it defines Constitutional language, particularly Constitutional language that controls their relationship with another branch of government.
    Let’s say that the President vetoes a bill and sends it with her objections back to the Senate. After 10 days, a bare majority of the Senate rule that “he shall return it” means that the President has to hand-deliver the bill *personally* (after all it doesn’t say “he shall have it returned” does it?)- and since she didn’t do that within 10 days, it’s a law. Obvious horseshit, or the Senate setting its own rules?
    When the Senate is on recess for every purpose *except* for the purposes of the appointments clause, solely to prevent recess appointments, then I think the Adminstration has a good point: Congress is attempting to deprive the Executive of a power that it has been granted by the Constitution. If the Senate had just conducted real business throughout the calendar it’d be a much harder case to demonstrate.
    The biggest obstacle to changing the ‘vacancy timing’ aspect is that the Court appears to have several unappetizing choices:
    1)overturn in retroactively, voiding every action of every recess appointee (at least, all of those whose vacancies didn’t start during recesses)
    2)overturn it going forward, leaving all existing decisions in place but removing existing appointees from their positions
    and, of course, there’s the nonsensical one, which I could see getting at least 3 votes:
    3)overturn it for all decisions going back to the beginning of the Obama Administration
    Ergo, I only see the recess issue getting traction- it limits the collateral damage (which everyone wants) and doesn’t look entirely implausible and partisan (which at least Kennedy and Roberts appear to want).
    Curious to see how this will affect Congress vis a vis the President going forward; dealing with a hostile Senate could be damn near unworkable if they’re going to ask for policy concessions for every single appointment. And since this situation wasn’t anticipated in the past, some laws become ineffective when the Senate refuses to confirm any candidate…
    (Unsurprisingly, this is a situation that favors those that want government to do less- if you’re ok with the NLRB doing *nothing*, then the Senate refusing to appoint your pro-business candidates isn’t much of a blow).
    Also unsurprisingly, if the President were to appoint (no confirmation) an ‘acting such-and-such’ to carry out the roles envisoned by those laws, those defending the ‘spirit’ of the law will suddenly find that the letter has regained its appeal.

  24. We should reason the same way about the law that applies to the government, the Constitution
    Except that, this creates the potential for radical disruption of the machinery of government. Thus stare decisis; we don’t change the rules around constantly because it’s a practically bad thing. All manner of decisions- executive orders, laws, etc are made based on the rules of play today.
    Also, there are cases where this sort of thing applies to ordinary citizens- consider adverse possession, which operates on the same principle (ie long enough use by one party without objection leads to the potential to legally recognize ownership of that property by the user). Speed limits are a terrible example, since there isn’t usually a heavy cost to individuals who were relying on the older implicit speed limit.
    And if we let that intent govern, there will be no recess appointments at all.
    So are we supposed to be following the text, or the 17th-century understanding of that text, or the intent behind that text, or stare decisis? Or are you an originalist of the Scalia school of thought (ie it’s whichever gives us the desired outcome)?

  25. Carleton: When the Senate is on recess for every purpose *except* for the purposes of the appointments clause, solely to prevent recess appointments, then I think the Adminstration has a good point: Congress is attempting to deprive the Executive of a power that it has been granted by the Constitution.
    Except that it is a conditional power, that comes into play only if certain conditions are satisfied. There needs to be a vacancy and it needs to “happen” “during” a recess of a Senate. And we need to determine what a recess means. Congress, it seems to me, is in control of when they are in recess by being able to manage their own proceedings.

  26. dealing with a hostile Senate could be damn near unworkable if they’re going to ask for policy concessions for every single appointment. And since this situation wasn’t anticipated in the past, some laws become ineffective when the Senate refuses to confirm any candidate…
    end the filibuster, everywhere.
    that will free up all kinds of things!

  27. “end the filibuster, everywhere.”
    Not yet.
    I want one more shot at upping the ante during a Republican Administration so that the gears of governance completely seize up and we have a crisis with Second Amendment implications for everyone.
    We can rethink the mess as everything burns down.

  28. Congress, it seems to me, is in control of when they are in recess by being able to manage their own proceedings.
    That is the question- can Congress negate the power via redefinition or parliamentary procedure? As Roberts observed in your link, can the Senate merely pass a resolution that they are never in recess for the purposes of this clause? Could they have done so in 1790?
    Can the redefine the veto as above? Can they redefine “Attendance at the Session” to mean “all of the time” and thus immunize themselves against arrest?
    Noting that it’s a conditional power doesn’t necessarily mean that Congress can define one of the conditions out of existence. This is similar to the wordplay that exists around the use of the CIC powers to engage in wars as long as the Executive didn’t call them “wars”, thus depriving Congress of it’s explicit power to declare war.
    In both cases, if the intent of the Framers was that the President could only make recess appointments at the whim of the Senate, and that the President could make war without the consent of Congress, then the document would reflect those preferences.
    It does not.

  29. Snarki,
    I believe that using the right of the president to adjourn both houses until he sees fit would be the surest way to start an armed internal conflict. What would happen if the president adjourned the House and it refused? Would he send the Secret Service, or the FBI, or the Army to enforce his writ? What if the Capitol Police put up a fight?
    Considering that this would likely happen on the top of a tense political situation, it might really lead to a situation where any solution would be a coup.
    So, I don’t want Obama, nor anyone else to try to adjourn a Congress that doesn’t do it voluntarily.

  30. As Roberts observed in your link, can the Senate merely pass a resolution that they are never in recess for the purposes of this clause?
    Oh probably not. It would likely depend on what other implications being in recess has for other provisions, such that you can be in recess for one purpose but not another. If so, I don’t really see a problem with it. Note that the President, it seems, was going maximalist the other way – anytime the Senate is not in session constitutes a recess, and any vacancy, no matter when it arose, can be filled at that time, no matter how brief. Does the senate therefore need to conduct real business 24/7/365 to never be in recess?

  31. end the filibuster, everywhere.
    I was thinking of a Senate held by the other party- filibustering is another dimension to the problem, but in general the issue is whether the Senate ought to be able to prevent the Executive from doing Executive-y stuff merely by refusing to confirm anyone to a particular post.
    A smart legislature going forward should equip its laws with escape clauses so that the Executive isn’t blocked when appointments are blocked- but as I said to Brett, when you change the rules this can handicap previous laws that didn’t envision your innovation. Which is either a problem (if you like the rule of law) or a benefit (if you’d like to get a do-over on laws you don’t like).

  32. What would happen if the president adjourned the House and it refused?
    I would guess (relatively uneducatedly) that any business they attempted to conduct would be ignored as invalid, at which point it would go to the courts.

  33. Note that the President, it seems, was going maximalist the other way – anytime the Senate is not in session constitutes a recess, and any vacancy, no matter when it arose, can be filled at that time, no matter how brief. Does the senate therefore need to conduct real business 24/7/365 to never be in recess?
    I think it’s reasonable to also say that the President doesn’t get to define the term, any more than Congress does. The term is used in this clause to control their relationship, and I think the only way to decide it is to have the court determine the meaning.
    Im not saying the Administration is in the right, but Im convinced that the Senate is in the wrong in trying to de facto never recess as a way to block the Executive. The Administration would be in the wrong similarly if they said that every nightly end to business is a ‘recess’ that allows for appointments.

  34. So if Bohner and Reid disagree, Obama can tell them “Get the f*ck outta town!” and *presto*, time to make recess appointments.
    If they disagree *about when to adjourn*, I think (does anyone know if this has ever happened?). Although it does appear to offer a possible window for recess appointments if the House is friendly but the Senate is not.
    Of course, the term ‘adjournment’ is also not defined by the Constitution- perhaps the Senate just needs to pass a resolution that, for this purpose, an adjournment is not a recess. 🙂

  35. “I believe that using the right of the president to adjourn both houses until he sees fit would be the surest way to start an armed internal conflict.”
    Why not exercise the opposite power? The President can call either or both chambers into session, even if they don’t want to be. That can’t force them to vote on a nominee, but it would certainly disrupt vacation schedules, and if you did it when they were off campaigning for reelection, I expect they’d schedule a vote awfully fast.
    I agree that we need SOME provision to deal with a Senate which simply refuses to vote on nominees. I simply refuse to interpret such a provision into a Constitution which objectively lacks it. Article V is called for here.
    I would suggest an amendment which gives the Senate some fixed period to hold an up/down vote on a nominee, or else they are deemed approved. You could roll this into abolishing recess appointments.

  36. Just ran across this, which argues that “during” modifies when the President can act & has nothing to do with when the vacancies occur. That is
    The President shall have Power- during the Recess of the Senate- to fill up all Vacancies that may happen.
    He argues that this makes sense in terms of avoiding the weird ‘when did the vacancy happen’ questions, and in avoiding either having ‘during’ modify both conditions or giving the President the power to make recess appointments when the Senate is in session (as long as the vacancy occurred during the recess).

  37. Let’s suppose that the Court decides that these recess appointments are invalid. Do you suppose it will just invalidate this particular action/decision by those with recess appointments? Or will they in validate all actions in which those with recess appointments were involved? Including, presumably, administrative actions like raises and promotions of people in the executive branch who work for those with recess appointments. And how about actions by judges with recess appointments? Or ambassadors?
    The possibilities for chaos, while every decision of lots of different administrative bodies is reviewed and/or contested, are enormous. (But think of the mass of business for the lawyers!) What fun!

  38. Why not exercise the opposite power? The President can call either or both chambers into session, even if they don’t want to be.
    First problem I see is that you’re kicking your own people in the shins just as hard as the other guys. Not to mention the possible public relations issue of jerking Congress around just because you can.
    I would suggest an amendment which gives the Senate some fixed period to hold an up/down vote on a nominee, or else they are deemed approved. You could roll this into abolishing recess appointments.
    That’s an improvement, but better something that also dealt with the Senate refusing to confirm any candidate in order to extract political concessions. They don’t need to not vote, they could just vote every candidate down with the same effect.
    (Unless you’re solving the problem of the filibustered candidate or the one trapped in committee- which afaict has already been solved albeit not by means you like).
    Unfortunately, Im not sure there’s a solution where the Senate can be forced to give *actual* advice and consent, rather than using it as a political football. Recess appointments are maybe not a bad solution to that. Or maybe just get rid of the process entirely for executive appointments- let the President choose the team he wants, they’ll get plenty of scrutiny via the media in the modern era anyway, and Congress can always investigate particular issues as it sees fit without actually holding up appointments.

  39. “That’s an improvement, but better something that also dealt with the Senate refusing to confirm any candidate in order to extract political concessions.”
    How do you, constitutionally, distinguish this from the President stubbornly sending up a series of utterly wretched nominees, people so bad that leaving the position open is preferable? Because that’s how the Senators are going to describe what they’re doing, and why is the President’s version of what’s going on privileged over their version?
    You can’t solve all problems with constitutional design.

  40. How do you, constitutionally, distinguish this from the President stubbornly sending up a series of utterly wretched nominees…
    I wouldn’t; I think advise and consent is a cure worse than the disease. The President is responsible for the quality and actions of his appointees, I think that’s protection enough against bad ones.
    Judges is a different case, this is just for executive branch appointees.

  41. “I think advise and consent is a cure worse than the disease.”
    I wouldn’t go that far. I already think the senate, hardly popular in general, has been protected from being politically intransigent on nominations. At some point, the executive will slip past them.
    I think once the wheels of government well and truly grind to a halt, and POTUS can just point at the senate as failing, they will learn to be more responsive.
    I think removing ‘the cure’ will lead to more partisan nominations, which will lead to more dramatic swings in executive department behavior.
    Just considering the NLRB, its not to out there to assume extremely ‘anti-labor’ appts followed by extremely ‘pro-labor’ appts. That kind of regular policy shifting isn’t good for anybody.

  42. just do away with appointments (or at least a lot of them).
    make them career jobs, with the possibility of impeachment-style removal for truly bad behavior.
    or, if Congress has a problem with how an agency is being run, they can write a law changing it. get rid of this patronage-based, rotating leadership nonsense.

  43. My own opinion is that the Constitution was a design for legislative supremacy, and we have drifted too far from that design already. A government ground to a halt would be an improvement over a dictatorship of the executive, which is what we have been drifting towards. Though I’d hardly describe the last few years as “drifting”, given the open claim that the President is entitled to enforce policies the legislature has refused to enact, and to ignore ones it has enacted.

  44. There seems to be a little inconsistency here. The essential argument is that the so-called recesses are not recesses at all.
    OK, but are the “sessions” really sessions?
    Apparently this is binary, either the Senate is in recess or it’s in session. No limbo. Then why should “in session” be the default if they are not doing anything?
    I personally think the Senate should be required to act, and if they don’t within, say ninety days, the nominee is deemed confirmed. You don’t like the nominee? Then stand up and vote “No.”

  45. The framers of the constitution did not anticipate that there would be such a thing as the filibuster, which came about by accident. Nor did they anticipate political parties, though those quickly came about. Their assumption, in framing the recess exemption, was that congress would vote up or down on appointees.
    They also did not anticipate pro-forma sessions. Their assumption was that legislators would take their job seriously, and do the nation’s business while in session, and allow the president a few exemptions when they were not in session.
    Consider this, quoted from a story in The Hill:
    “As of Friday, the GOP had completely blocked any Democrat from speaking on the House floor for the last three weeks, and this should continue for another three weeks before the House returns on Nov. 13.”
    Read more: http://thehill.com/blogs/floor-action/house/262981-gop-again-shuts-down-dems-attempt-to-speak-at-pro-forma-session#ixzz2qQlW98jZ
    In what sense was Congress in session, if no member of one party was being allowed to speak?
    I’d say both the president and congress are on shaky ground here, congress for holding what amount to fraudulent sessions and the president for making appointments while congress claimed to be in session. Bad cases make bad law, and that’s what I expect from this.

  46. Again I think Brett is right on substance.
    What is needed is a clear distinction between different kinds of nominees. Some should be removed from senate confirmation others definitely not (that includes of course all lifetime appointments at least until they get converted into ones with a mandatory retirement age and/or time limits)
    POTUS forcing Congress into session could be quite popular if handled the right way. He just has to make the case that Congress is a bunch of overpaid lazies who are mostly concerned with stuff that has nothing to do with their designated job (part from trying to keep it). Let POTUS play the strict parent that says “You can’t go out to play before you have done your homework”. How do you think the papal conclave came into being? Lazy cardinals refusing to vote a new pope in.*
    *Yes, the villain in that piece was actually the French king but that would totally spoil the punchline.

  47. “Their assumption was that legislators would take their job seriously,”
    Well, they also assumed that Presidents would take their job seriously, too. 2 for 2. Lazy, rent seeking legislators are hardly an argument for turning legislative power over to power mad executives.
    I think the real problem, frankly, is that representative democracy doesn’t scale well beyond a certain point, especially in a heterogeneous nation. And we’re way, way past that point.
    You can get around this to some extent by respecting the principle of subsidarity, which is what the whole idea of “federalism” is all about. But that only lasts as long as the highest level of government permits it to last, and when do politicians ever admit something is beyond their own competency, or none of their business even if they were competent?
    And we have evolved a particularly bad political class. Average citizens get 49% on that test, which is awful. Politicians get 44%.
    Maybe we should give election by lot another try, make serving in the legislature more like jury duty than something people could seek out. But we should certainly take seriously the idea of splitting the country up into smaller, more manageable sized countries. This country is just too large and diverse to be run from a central power. Well, to be run well, anyway.

  48. But John, they had Original Intent. That’s all that matters. You will know it when you see it.

    Intent is important, no matter when a particular constitutional provision was written. If you trash intent, you no longer have a set of guidelines; instead you have a hunk of silly putty that can make cool-looking images of the issue that it’s last plastered against.
    If you can’t divine the original intent, that means the article in question was written in such a way that understanding can’t be achieved with any degree of certainty.
    Which is not to say that complete certainty is possible. Possibly this goes back to Carleton’s comments re: stare decisis. Who better to have the last word on divinination of intent than SCOTUS? And if SCOTUS isn’t your one-stop shopping place for divination of intent, what might be a better way to do that?
    I don’t have any answers. Intent is important, but not sure.

  49. A bit of history of GOP abuse of recess appointments:
    (from a Wapo article 12/9/2011)
    “At high noon on Dec. 7 1903,” Senate associate historian Betty K. Koed has written, the Senate president pro tem brought down the gavel to end one session of the Senate and then said “the Senate will now come to order.”
    “In that moment between sessions,” Koed wrote, “during that split-second of time it took . . . to wield the gavel, President Theodore Roosevelt made 193 recess appointments.”
    I think that impeachment proceedings are in order.

  50. If you can’t divine the original intent, that means the article in question was written in such a way that understanding can’t be achieved with any degree of certainty.
    My personal issue with the “original intent” line of argument is that it assumes that there was one, specific original intent. I’m not sure that’s always true. Different individuals among the founding generation had different ideas about how things should work.
    I think Brett has a point about the limits of representational governance in a country of this size, but I’m not sure that it’s relevant to the question at hand.

  51. even in a democracy of three people there will be someone who feels shortchanged, unrepresented, ignored and maligned.
    democracy scales just fine.
    people just refuse to accept that it means you don’t always – in fact almost never – get exactly what you want. it’s a system that require compromise. and everybody knows that compromise is the ideologue’s mortal enemy.

  52. So who would have a more accurate understanding of “original intent”?
    Politicians in 1790? 1820? 1903? or 2014?
    Whatever Scalia may think about his own accuracy in “original intent” entrail readings, the issue in TR’s recess appointments in 1903 is 111 years closer to the “original” than anyone in 2014.
    Overturning centuries(!) of precedent in the name of “original intent” is weird: “oh those old farts didn’t know as much about the thoughts of the REALLY old farts as WE do, today”. That might make sense if you’re talking scientific archeology, but not so much for legal/constitutional theory.

  53. russell: My personal issue with the “original intent” line of argument is that it assumes that there was one, specific original intent. I’m not sure that’s always true. Different individuals among the founding generation had different ideas about how things should work.
    This is basically Scalia’s argument against using legislative history to interpret statutes. Congress is a collection of individuals, the only thing we can be sure of is that it intended to enact the language in the statute.
    Of course, in the absence of regulations from the Executive Branch, legislative history as embodied in e.g., committee reports, is often the only thing to go in when looking at what are very often vague statutes that use nebulous words like “substantial” and “significant.”

  54. “I think Brett has a point about the limits of representational governance in a country of this size, but I’m not sure that it’s relevant to the question at hand.”
    And limits we have if you look at government spending as a percent of GDP. Total government spending — Federal, state, and local — hover around 40% of GDP with Federal — carried out by the votes of our representatives — jogging up and down right around 20%, say the mid to high teens on the low end and the low to mid twenties on the high end.
    Most of the variation in Federal in that 15 to 25 range occurs because of variations in the private sector economy, tax receipts, etc.
    So, yes, we go to war in that circumscribed range.
    But, I don’t want 100% of GDP going to government, despite accusations of “no limits” to the contrary, and I doubt anyone views zero on the low end as desirable, although in recent years rhetoric for the zero number, utterly insincere (keep the government out of my Medicare!) as it is, seems to have become noisome.
    As to its relevance to this discussion about recess appointments — zip.
    This is part of a blood feud and Barack Obama, with all of his faults and despite his history of mutual collegiality while he was in the legislative branch, didn’t start it this time around.
    If he appointed Mitch McConnell, not a bad idea, to the NLRB, Erick Erickson would rally the know-nothing troops to defeat the “liberal, socialist squish McConnell”.
    The point of this behavior is not to divine original intent, what a bunch of high-minded bullsh*t, and this Supreme Court case is to halt governance by this hated President, period.
    Else, why now, for this case?
    Republican Teddy Roosevelt, a human being, or even Republican Dwight Eisenhower, another human being, the kind in short supply these days on one side of the aisle, would kick these “Republican” butts into the reflecting pond.

  55. “divine”….an interesting choice of words.
    Here’s one from Hilzoy, ca 2011 on LGM:
    I don’t know enough about legal philosophy to know whether “original meaning” has some special meaning in that context. But about extension v. intension:
    The great virtue of that distinction, I think, is to permanently destroy all arguments of the form: the Framers didn’t think this provision of the Constitution had this result/applied to this group/etc., so if you think it does, you’re changing the Constitution. Because obviously, once you think about it, it is perfectly possible to *just not know* that some word applies to a particular thing.
    E.g., if Congress banned toxins of a certain sort, and then someone later discovered that some substance that had been thought to be innocuous was a toxin of that sort, then under the law, that substance is banned, even if Congress had no intention of banning it (back when they thought it was innocuous.) If I say that I will bring whoever committed some heinous crime to justice, not knowing that it was committed by my closest friend, I do not get to say: well, I never thought I’d be bringing *my best friend* to justice. In these cases, no meanings have changed, no original anything has been violated, and yet statements turn out to apply to people/things that they were not originally thought to apply to.
    Similarly, “the Framers never intended that creches could not be publicly funded/women would have rights/etc.” What matters are their words, not their understanding of those words’ implications.

    Words matter. Food for thought.

  56. Words do matter; I agree. But what those words meant to the people using them to communicate their intent matters, too, I say.
    I’m not arguing for rigid adherence to original intent; sometimes it just has overly wide error bars. And sometimes original intent should just be discarded outright. What I am saying is that words do in fact have meaning, and that to the degree possible, the meaning intended by the scribers of those words should be discerned. If it turned out that we as a country no longer agree with those words, or determines that it just cannot understand what those words meant, then the words should be removed and replaced with different ones.
    Which has been done before.
    I sense that this can blossom into a vigorous 2nd Amendment discussion. Maybe the inevitability of such discussions springing from a conversation about originalism could be expressed as e.g. Slartibartfast’s Law.
    I’d prefer to not use my real name, there.
    Anyway, I’d prefer to actually change the words when we decide we don’t agree with them or that they were too vague, rather than changing what we say they mean. When that happens, the Constitution is effectively changed in an end-run around the prescribed change process, which I think is problematic.

  57. “oh those old farts didn’t know as much about the thoughts of the REALLY old farts as WE do, today”.
    There’s also the possibility that the old farts didn’t care about the thoughts of the really old farts.

  58. Anyway, I’d prefer to actually change the words when we decide we don’t agree with them or that they were too vague, rather than changing what we say they mean.
    Yep, as in the 3/5th’s clause being sub silento displaced by the 13-15th amendments. It needed to happen and it did happen. Took a while, and a war.

  59. It’d be nice to change the Constitution that often, but that’s not the country we live in currently. Which makes sense- if I’ve already got what I want via strained interpretation, am I going to be willing to give up anything significant in order to get a cleaner interpretation?
    To fulfill Slarti’s prediction (and who doesn’t want their predictions fulfilled?), what would gun-rights activists be willing to give up in order to have the first part of the second amendment removed? Id wager nothing.
    (Not pointing fingers here: what would I give to actually have the words “right to privacy” or “separation of church and state” inserted into the Constitution? Not much, since I already think that they’re effectively in the document. Would I be willing to swap it for something that I actually think is contentious? Unlikely.]
    Now, if it comes down to *improving* the document rather than just clarifying it (eg fixed terms for Supreme Court justices), that seems like it could get more traction than trying to resolve actual Constitutional disputes.

  60. if I’ve already got what I want via strained interpretation, am I going to be willing to give up anything significant in order to get a cleaner interpretation?

    Contrariwise, if you’ve created the possibility of strained interpretations by instantiating one or more of them (by supporting that kind of thing, perhaps), what undesirable changes could arise from subsequent strained interpretations that you disagree with?
    Just a question. I don’t expect answers.

    Not pointing fingers here: what would I give to actually have the words “right to privacy” or “separation of church and state” inserted into the Constitution?

    I would tend to want to have some more words explicating what e.g. “separation of church and state” means. I would also submit that at this point, “right to privacy” might need some explicit, detailed words about gathering information on citizens/residents without a warrant.

  61. Anyway, I’d prefer to actually change the words when we decide we don’t agree with them or that they were too vague, rather than changing what we say they mean.
    I can’t say I disagree, but this doesn’t seem to be an apt response to bobbyp’s Hilzoy quote (if it was even intended to be such).
    What Hilzoy seems to be saying is that the words mean what they mean, under certain circumstances, regardless of the intent. There’s no need to change what we say they mean. They just mean something other than what was originally intended, sometimes because it wasn’t possible for anyone to intend certain things at the time the words were written. The words may come to apply to things that didn’t exist when the writer(s) wrote them.
    I’d say we can try to discern original intent to the extent that we can AND to the extent that original intent even matters to the actual meaning.

  62. What Hilzoy seems to be saying is that the words mean what they mean, under certain circumstances, regardless of the intent.

    Does that help decipher the 2nd Amendment more certainly than attending to intent, I wonder? I would guess not, and that there is in fact intent to be considered. Which might be further muddied by a multiplicity of intent, I admit.
    Words do mean what they mean. But sometimes they mean more than one thing, and the exact meaning intended to be conveyed by a sentence can be properly discerned only by paying attention to context and other clues.
    People can and do say things that aren’t what they meant to say, and although what they said might convey some specific meaning, if it’s not the intended communication then one would be incorrect in using the literal meaning, just as one would be if one literally used a typo as the intended text.
    None of this is revolutionary. If we have some pre-experience of someone’s prior communications, it lets us do a somewhat better (though still imperfect) job of deciding whether what they are saying now contains some kind of error. We normally do that without even thinking about it.
    Anyway. These are my thoughts on decoding the communications of others, and if you don’t like them, it’s almost certain that you aren’t correctly assigning meaning to my words. ;p

  63. Contrariwise, if you’ve created the possibility of strained interpretations by instantiating one or more of them (by supporting that kind of thing, perhaps), what undesirable changes could arise from subsequent strained interpretations that you disagree with?
    Let’s say instead that I was born into that situation and absolve me of the blame of initiating it 🙂 – if it were 1797 and we were deciding whether to make &$^# up or just amend the Constitution, Id be all for the latter.
    Today, Id venture to say the only people for following the letter of the law are the ones willing to convince themselves that all of their strained interpretations are actually ‘the letter of the law’. There are too many babies in the bath to feel good about tossing the whole thing out. On the one hand, if we were strict about interpretation then we’d have an incentive to fish the babies out first, but that’s a chicken-and-egg problem (we won’t get public buy-in to fix the Constitution until we’re enforcing it strictly, and then we’ve tossed out the bathwater and gored the oxen).
    So in the abstract, sure it’d be great to actually amend the Constitution. In reality, this isn’t going to happen anytime soon, there’s way too much stacked against it.
    I would tend to want to have some more words explicating what e.g. “separation of church and state” means.
    That gets tricky too. You want to avoid painting your Constitution into corners regarding today’s technology, social structures, etc. Im much happier with a ban on cruel treatment than a list of specific forbidden techniques.
    Plus, often specific prohibitions can be worked around via various methods, where a general statement gives the court more latitude to infer and apply general principles or work around problems or conflicts.
    Say that, rather than ‘separation of church and state’, you want to specify rules eg ‘the government won’t pay for religious activities’. That immediately suggests to me a dozen more questions (eg is a tax credit or tax break ‘paying’ for something? Can the government pay for religious activities for eg soldiers or prisoners, even to the extent of providing a venue?) and might even have bad unintended consequences (eg that the government can’t spend money to accommodate religious users of government facilities, thus discriminating against them).
    I mean, we have to go to some level of specificity, otherwise our Constitution would look more like “Be good” with the specifics left to judicial interpretation. Too much specificity seems like it’d be as bad as too much generality though- I think we want just enough for judges to infer guiding principles that we want to live by, and no more.

  64. I think the constitution was deliberately written to be flexible, so amendments would be a rare thing to do (and I assume it was much easier with 13 than 50 states to do the really necessary changes).
    I also think that the constitution is only still around because it was handled in a flexible way in cases of serious crises (to be cynical: it tends to get completely ignored quite often, otherwise it would have broken to pieces at the time of WW1 at the latest).
    Plus there is a serious danger in proposing a clarifying amendment and failing with it (or even succeeding). SCOTUS decided that a federal income tax was constitutional, although it is not explicitly stated in the text. Just in order to not have the tax rest just on SCOTUS precedent a claryfying amendment got passed (success!!!). But that gave rise to the movement that claims that the very fact of its passage was proof that the SCOTUS decision was wrong and the income tax unconstitutional in the first place (why else would one pass an amendment?). I could come up with quite a number of desirable (from my POV) amendments that in case of failure would have the exact same effect. Case in point: ‘right to privacy’. If this got proposed as an amendment, it would imo fail with near certainty (because these days there is NOTHING that could pass including the wetness of water, the near-spherical shape of the Earth, 1+1=2) and that would also inevitably be used as a lever to abolish any right to privacy (and everything dependent on it*) with the cited reason. That seems a good reason not to take that risk unless there is no other way.
    *legal contraception (and abortion of course), illegality of sodomy laws, possibly even legal miscegenation (not sure that privacy was a factor in the decision)

  65. These are my thoughts on decoding the communications of others, and if you don’t like them, it’s almost certain that you aren’t correctly assigning meaning to my words. ;p
    No. The only reason you’re writing these obviouly horrible and wrongheaded things is that you don’t understand me.
    More seriously, the point wasn’t that intent never matters, rather that sometimes it matter less than at other times, perhaps to the point of occasionally not mattering much at all. And all of that is orthogonal to lack of clarity, ambiguity, self-contradiction, etc. (And all of those things are orthogonal to flexible language that allows for a range of actions or policy.)

  66. “So in the abstract, sure it’d be great to actually amend the Constitution. In reality, this isn’t going to happen anytime soon, there’s way too much stacked against it.”
    I think this seems to incorporate an assumption that the non-amendment ‘change’ process is in some sense neutral, that it isn’t playing favorites. But, of course, it isn’t neutral. Because the entire non-Article V process occurs among office holders and people they have chosen, it favors government in general over the citizen. Because it occurs entirely at the federal level, it favors the federal government over the states.
    But Article V offers multiple ways to amend the Constitution. Amendments can originate with Congress, or they can originate with a convention of the states. They can be ratified by state legislators, or they can be ratified by conventions of the people.
    So, the informal process systematically stacks the deck in favor of federal power. It is not neutral in whose oxen get gored.
    While an Article V convention originates amendments at the state level, and can be expected to favor state power over federal, and if the convention rather than legislative ratification process is chosen, that would tend to favor citizens over the government.
    This stacked nature of the informal process is why it is favored or rejected depending on one’s politics. It’s a case of process dictating outcome.

  67. I think this seems to incorporate an assumption that the non-amendment ‘change’ process is in some sense neutral, that it isn’t playing favorites.
    I don’t think so. “Ain’t gonna happen soon” neither implies nor requires neutrality. If anything “it’d be great to actually amend the Constitution” implies that there’s something (or some things) undesirable about the non-amendment process, which at least allows for a lack of neutrality.

  68. I sometimes wonder at the utility of Constitutions; they only offer as much freedom as those interpreting them choose to allow- constrained by the conscience of the voters.
    On a good day, I think a written Constitution should force a certain amount of ‘good’ behavior. On a bad day (eg when some justice uncovers an “equal majesty of the states” clause on the back on the document in invisible ink) I think we’d be better off explicitly relying on our own public judgment, since that’s all we’re really relying on anyway.

  69. This stacked nature of the informal process is why it is favored or rejected depending on one’s politics. It’s a case of process dictating outcome.
    I didn’t say that I wanted one or didn’t want one; I said that it’s practically unrealistic today IMO. Insfar as I can imagine contrary-to-fact conditions I think a convention would be great. Insofar as I feel forced to pay heed to the world as it is, I can’t imagine a convention producing anything.
    I think this seems to incorporate an assumption that the non-amendment ‘change’ process is in some sense neutral, that it isn’t playing favorites.
    I don’t see that assumption being made.
    And the deck that’s stacked against it isn’t entirely (or IMO even primarily) federal-versus-state. It’s as Harmut suggested: interest groups are not currently willing to trade certainty of interpretation for some of their favorite causes for certainty of interpretation *against* others. Everyone is convinced that the most fair or most reasonable interpretation already favors their position, and they’ve either got a majority now or imagine they can get one in the future. Accepting certain language *against* their preferred positions is a permanent concession I don’t see either side willing to make.
    Are there any concessions you’d be willing to make? And if there are, can you imagine persuading the people most invested in what you’re willing to give away forever that it’s worth the cost (eg giving away the pro-life position to get the 2nd amendment you want, or vice-versa)?

  70. Another aspect of the original intent issue is that some of the language refers to stuff that either no longer exists, or is no longer relevant.
    So, the third amendment, for example. Quartering soldiers in private homes just doesn’t come up much these days.
    Not to kick off a GUNS GUNS GUNS threadjack, but IMO part of the reason nobody pays that much attention to the first part of the 2nd is that the thing it refers to – citizen militias, as a significant if not primary defense force, operating under the direction of state or local government – no longer exists in a meaningful way, at least in the form that it did at the time the 2nd was written.
    There’s the National Guard, but I’m not sure they really have the same role that the militia had in the 18th C.
    In some cases I think we look at the language and try to apply it to the nearest analogous thing to what it was originally written about. Whether it still makes sense or not.
    So, it’s not just original intent that needs to be considered, but original intent in its historical context. Not just intent in terms of what the words were meant to say, but also in terms of what end they were intended to achieve.

  71. So, it’s not just original intent that needs to be considered, but original intent in its historical context.
    This makes too much sense, so obviously it is not meaningful.
    GUNS! GUNS! GUNS!
    I daresay, if George Washington was shown the destructive power of a fully automatic rifle back in the day, the thought of a bunch of armed and drunken Pennsylvanian loons trying to avoid liquor taxes carrying these things would have had him spit out his wooden teeth and the 2nd Amendment would have been quietly and quickly consigned to oblivion.
    Back in the day, we were a frontier society eagerly fighting the natives, suppressing slave rebellions, and a very weak power in a very warlike world. Having a gun was as common as whippings.
    Those who argue that we MUST abide by the “intent” of the WORDS when written over 200 years ago (as determined by shallow partisan driven scholarship -aka- Scaliaism) are making a categorical error. If “originalism” had such sweeping intellectual power, there never would have been a Civil War.
    We live today. WE have the right to determine the meaning of the words now and in the present.
    FREEDOM.

  72. So, it’s not just original intent that needs to be considered, but original intent in its historical context. Not just intent in terms of what the words were meant to say, but also in terms of what end they were intended to achieve.
    Weird that the common law works this out quite nicely by applying the law, case by case, and allowing the law to evolve, case by case. The “originalists” ignore the fact that the framers of the Constitution were common law lawyers: they got it that the law evolved with situations brought before courts. And, sure, there are recently passed statutes, which aren’t immediately subject to historical interpretation through common law case analysis. These are things that can be amended, fixed, on a whim by the legislature.
    As russell and bobbyp said, the Constitution would be a dead letter if it weren’t subject to common law interpretation. And that doesn’t mean ad hoc, one-off, irresponsible decrees from the bench. It means a considered, gradual, situational approach to accommodating the law to progress through a combination of stare decisis, and considered argument by lawyers seeking to extend the law.

  73. I meant: “As russell and bobbyp sort of said; or rather, as I interpreted…
    Sorry, russell and bobbyp …

  74. Let’s say instead that I was born into that situation and absolve me of the blame of initiating it 🙂

    I see now that my devious little plan has failed. But it would’ve worked if it hadn’t been for those damned kids.

  75. If “originalism” had such sweeping intellectual power, there never would have been a Civil War.

    Unless I’m TOTALLY misunderstanding you (HAH!), I disagree. The intent of the Framers was pretty clear; it’s just that their intention was to make it possible for some people to be worth less, in the eyes of the law, than others.
    Which made war pretty inevitable, I think, unless the absurdity of such a proposition would have caused the entire South to manumit their slaves out of embarrassment.
    Unlikely, I think. Anyway, to me the original intent of the Framers was to make perpetuation of slavery possible without saying so outright. If they’d said THAT outright, then their intent would have been negated from the get-go.

  76. We should not forget that at least one prominent founder would simply shake his head about our discussion because the idea that this piece of paper would last into the 21st century without a complete revision would have been absurd to him. I think few of the founders would understand our* treatment of their work as sacred and inviolate.
    *not specifically aimed at the current postership here.

  77. OTOH, he might have shaken his head at the idea that, instead of writing a new constitution every generation, people would keep the old one around unaltered, and just pretend it had meant something different.
    And thereby end up with, in truth, no constitution at all, rather than a new one.
    Personally, I’d say the Constitution does need complete revision. But just suborning judges into finding new meanings isn’t the same thing as actually revising the thing.

  78. No disagreement there from my side.
    But as has been stated, chances of that are zero. And if it would happen, both you and me would very likely hate the result (for different reasons mostly but nonetheless).

  79. So, to close out my position on this: I kind of like the idea of doing due diligence in the direction of a) achieving clarity of what the Framers intended, and b) amending suitably where we no longer agree with their intentions, or where clarity needs to be added. It might be a pipe dream, but it is my own.
    All of this goes to explain my intense dislike for wide misuse of the Commerce Clause. Some of these misuses have been For a Good Cause (TM), but they’ve opened things up for further creative interpretations that might not turn out so well.
    Just so my thinking, such as it is, is clear in this matter. I am all about not using screwdrivers as chisels, figuratively speaking.

  80. But Article V offers multiple ways to amend the Constitution. Amendments can originate with Congress, or they can originate with a convention of the states. They can be ratified by state legislators, or they can be ratified by conventions of the people.
    Brett, that would be a whole lot more persuasive if there was a single instance of anyone even making a serious attempt to amend the Constitution other than by passing something thru Congress, and then having it approved by the necessary number of state legislatures.
    Do you know of that ever happening? Anything close to a “convention of the states”? Any state where a “convention of the people” was even considered in ratifying an amendment? Because I sure don’t.

  81. Just thinking that, of course the framers themselves differed on intent (just as we would if we all came together to craft a new constitution- we’d haggle over the language while each maintaining a personal interpretation of it). Ergo, while we’d like to imagine a time when everyone agreed on the interpretation & that we’ve drifted away from that golden age to where we now no longer agree on what the terms mean… that’s probably not an accurate view of the past, and sounds more like a mythical fall from grace than a realistic depiction of human interaction.
    If we look at the period immediately after the ratification of the constitution, there is much debate about exactly what’s permitted (eg the Alien and Sedition Acts). So we know that this is not a problem that developed over time based on a flawed approach (ie ‘reading into’ the text what we wanted to be there)- it was there from the beginning.
    And, I suspect, this is unavoidable. Not that it can’t be made worse by overly-vague text or obvious departures from the text in practice.
    [Which gives me an idea- a constitution with a built-in time limit. Good for 100 years, and then you *have* to get together and write a new one from scratch. At least then you get back to a baseline where everyone kinda agrees on things & will necessarily reform the obvious practical issues]

  82. I don’t think actually changing the Constitution is as hopeless as you believe, Hartmut. As I said, Article V allows several paths to amendment, and half of them, the convention approaches, are initated on the state level, not the federal level.
    We’re quite close to having the necessary number of states calling for a convention. In 1983 we were only two states short of the necessary number, at this point not so close, but that could easily change.
    The real question, I think, is not whether the states will eventually call a convention, but how Congress will react when they do.

  83. The real question, I think, is not whether the states will eventually call a convention, but how Congress will react when they do.
    To me, the real question is what ungodly mess will come out the other end of the whole process.
    The devil you know, etc.

  84. oh please. the first noise anyone makes about a “Constitutional Convention” will be immediately seen by the opposite party as a power-grab and the partisans thereof will line-up and shout it down.
    the only way there’s a new constitution in this part of North America is if the current US government is completely overthrown or destroyed: not just some jackasses with muskets marching around DC, i’m talking a thorough conquering by an outside power than its overthrow: a blank slate start. the status quo has trillions of dollars behind it. nobody’s giving that up just because a disgruntled sliver of the population has Freedom™-coated visions of small govt Utopia.
    when the GOP eventually pushes this “govt is the problem” thing too far and the rubes get too roused, they’ll switch their marketing to something that does a better job of keeping themselves in power.

  85. wj: Any state where a “convention of the people” was even considered in ratifying an amendment? Because I sure don’t.
    State conventions were used to ratify the 21st Amendment.

  86. “The devil you know, etc.”
    But there isn’t any “devil I know”, that’s kind of the point: I can’t know what the ‘constitution’ is, because it’s living. It can ‘change’ without any convention or amendment.
    Sure, a convention could produce a product which I like less than the current written constitution that’s being ignored. That product might even manage to get ratified. But at least I’d know what it was, until the living constitutionalists had a while to work on it again.
    So, you’ve got it backwards: It’s the product of the convention that would be the devil I knew. The living constitution is the devil I don’t know, can never know until it bites me.
    “oh please. the first noise anyone makes about a “Constitutional Convention” will be immediately seen by the opposite party as a power-grab and the partisans thereof will line-up and shout it down.”
    Right, as demonstrated by the fact that we came within two states of having a convention back in the 80’s, and aren’t more than a few states away from the necessary number right now. Because it’s unthinkable.

  87. i think we’re cross-threaded. i’m not talking about a single amendment. i’m talking about the notion that it should/could be rewritten from scratch.

  88. But at least I’d know what it was, until the living constitutionalists had a while to work on it again.
    Which is, as far as I can imagine, immediately (historically, that’s what happened the first time). If there was some significant block agitating for a rewrite that also demonstrated fidelity to the text even when inconvenient, Id be more open to persuasion on the point.
    Bluntly, I dont see how “people ignore the constitution” is fixed by “let’s rewrite the constitution”. If I thought it could at least be a forum for hashing out national differences on critical points Id be lukewarm for it, but those sorts of issues are exactly the ones no one is going to want to touch with a ten-foot pole (unless one party can dominate the proceedings, which would be even worse).

  89. All of this goes to explain my intense dislike for wide misuse of the Commerce Clause.
    The clause has not be “misused”.
    Your complaint is that, under currently accepted construct–arrived at by Constitutional Means I might add, there was some kind of “process violation” leading to outcomes you (mostly?) do not like. Let me see here….Congress passes law, SC upholds law, Executive enforces law. Goodness. Where did they go wrong?
    This is not a bug. It is a feature. We, as a polity, have been having this argument since John Adams administration (Aliens and Seditions Act). It broke down in 1861. I could point to several examples that equally rub me the wrong way: “Separate but equal”; Lockner era judicial activism; using the Sherman Anti-trust Act to bust unions; “unlawful combines and the labor injunction; just about anything undertaken by George W. Bush….there are more.
    Certainly we can discuss and dispute “what the words mean”, however as currently practiced, the school of “original intent” is simply a normative based and often incoherent attempt to justify a deeply desired partisan outcome.
    Not that I am opposed to partisanship.
    As to a Constitutional Convention: It won’t happen, but bring it on. You can bet your bottom dollar that one of the first things to go would be the egregious over-representation of rural voters in the Senate.
    So who would most likely walk out when that happens?
    If you want to overturn the New Deal you’re going to have to come up with the votes.
    I deeply thank whatever god you may believe in for that.

  90. Bluntly, I dont see how “people ignore the constitution” is fixed by “let’s rewrite the constitution”.
    This is so logical that it’s funny. It’s like Mr. Spock in the Groucho Marx glasses with the nose and moustache attached.

  91. But at least I’d know what it was, until the living constitutionalists had a while to work on it again.
    Which is, as far as I can imagine, immediately (historically, that’s what happened the first time).
    Historically, it happened *in the process of writing the Constitution in the first place*.
    Then it was amended, substantially, through the Bill of Rights, virtually immediately. And, in fact, the promise of almost immediate amendment was the price of ratification of the original text.
    Moses did not ascend a mountain and descend with the US Constitution inscribed on tablets. What it says, and what it means, has always been a moving target, from before the ink was dry.

  92. You can bet your bottom dollar that one of the first things to go would be the egregious over-representation of rural voters in the Senate.
    Not, for two reasons:
    1)the Constitution specifically protects states from having their Senate votes diluted (although I can see the argument that if the Constitution is mutable then it’s mutable, they can’t reasonably make some rules super-Constitutional for the same reason legislatures can’t bind themselves to laws that they can’t overturn).
    Still, it’d definitely generate some grounds for complaint
    2)since it’s the states doing it, they’re unlikely to have majorities to get this done. The only way the major population states could maybe make this happen would be using their clout at the House and Presidential level (but that’s at best a standoff- can’t reform the Senate bc the small states own the Senate). I don’t see a coalition of big-v-small forming anytime soon, in general both parties are happy to pick up ‘cheap’ Senators (WY, RI) where they can.
    What we really need for that is a constitutional convention from the ground up, circumvent the states and have the people vote via plebiscite. But that will also gore some oxen, don’t see it in the cards.
    (It’d be totally cool if we could get to this though)

  93. There’s the National Guard, but I’m not sure they really have the same role that the militia had in the 18th C.
    Tangentially, here’s also the state defense forces, which probably could be said to be closer to the old state militias in terms of lineage, but they’re even further than the Guard in terms of modern military role.

  94. Not, for two reasons
    I was contemplating a wide open “let’s start from scratch convention”. My error. I do note, having read up on this a bit, that the language in this Article is also fraught with ambiguities.
    I should think this would reflect the Founders state of mind at the time….somewhat hazy in some respects.

  95. I have often been bemused (and less often amused) at the parallels between the “originalist” approach to the Constitution and the “literalist” approach to the Bible, both suggesting a populace bewitched by the significance of the written word. My sense is that this is a distinctly American pursuit; Europeans and others seem less obsessed by trying – vainly, of course – to pin down and enforce what a specific set of words written long ago REALLY mean.
    YMMV.
    (On literalist interpretations of the Bible, I draw both upon my own experience from many years ago and the contemporary fulminations of Slacktivist, who is always worth reading.)

  96. Thomas Jefferson, in a letter to Madison:
    “Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.–It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law has been expressly limited to 19 years only.”
    http://press-pubs.uchicago.edu/founders/documents/v1ch2s23.html
    All debts, all laws, all constitutions.
    Now, just as stock market shouter Jim Cramer has recommended every single stock at least once every year since his mug appeared, and Emeril Lagasse has recommended bamming cayenne pepper into every recipe on every show and in every cookbook he has published, so did Jefferson say everything fool thing there was to say about governance at least once.
    But there it is.

  97. “I have often been bemused (and less often amused) at the parallels between the “originalist” approach to the Constitution and the “literalist” approach to the Bible,”
    I’ve often been bemused by living constitutionalists comparing originalism to the interpretation of religious writings. In as much as religious writings have no practical means for amendment, and so the only way to change them is precisely by ‘living’ interpretation.
    So the precise truth of the matter is that originalists want people to STOP treating the Constitution as though it were a religious document, and start treating it like law, where you change the words when you want to change the meaning.

  98. “So the precise truth of the matter is …..”
    Those are words, when used to lead off any statement, that need changing.
    So there!

  99. The first sentence of the Wiki entry for “law” reads as follows: “Law is a term which does not have a universally accepted definition.”
    Now just what does that mean?

  100. In as much as religious writings have no practical means for amendment, and so the only way to change them is precisely by ‘living’ interpretation.
    Actually, the analogy is pretty apt.
    When we amend the Constitution, we don’t go back and erase the parts whose meaning or relevance we think has changed. We add new language, that supercedes the old.
    Or, as a matter of simple pragmatic real-world practice, we apply the existing language in a different way. Words are the same, our understanding of them and their application to real-life situations change.
    The process is largely the same in the religious context.
    Unless, of course, you are leaving the edge of your beard untrimmed (as a religious, rather than a hipster, practice), or refusing to combine wool and linen in the same garment.
    Which makes dr ngo’s point, I think.

  101. russell, do you think the ban on mixed fibers in clothing should be extended to cotton-polyester blends? Even though polyester wasn’t invented when the Old Testiment was written, it seems like a logical extension to the cotton-wool ban. (Although no doubt Brett would argue that nothing could be banned for religious reasons which was not invented at least 2 millenia ago….)

  102. in as much as religious writings have no practical means for amendment
    the means are even more practical than with a constitution: you just decree the changes and move on from there. if you’re lucky enough to survive being called a heretic for long enough to attract followers, maybe you too can join the ranks of Jesus, Paul, Martin Luther, Joseph Smith, Rev Moon, etc..

  103. russell, do you think the ban on mixed fibers in clothing should be extended to cotton-polyester blends? Even though polyester wasn’t invented when the Old Testiment was written, it seems like a logical extension to the cotton-wool ban.
    It’s actually a wool-linen ban, you heathen savage.
    The more serious question in my mind is if it applies to alpaca, angora, and the like, because as any real yarn crafter will tell you, those are fibers, not wools. And if we move on to the following verse, how exactly am I supposed to put tassels on the “four corners” of modern rounded garments?

  104. All of this goes to explain my intense dislike for wide misuse of the Commerce Clause.
    For an interesting exercise, imagine yourself in my place and propose a constitutional amendment that corrects this ‘misuse’ that meets your sensibilities for clarity of understanding and use, but matches my policy preferences.
    As for the “you” in “If you want to overturn the New Deal” above that was not meant to be construed as you specifically. That was the royal you of ‘yous guys’.
    This could be a problem with my slipshod writing, or with our language.

  105. BobbyP:
    I think you could meet the policy preferences of most liberals in regard to the commerce clause with an amendment that reads as follows:
    “Congress shall have power to regulate.”
    All the rest of the commerce clause has been rendered without effect by current doctrine, anyway.

  106. Slarti: It’s not the outcomes I object to; it’s how we got there.
    Governance is like hopscotch, in that a careful observance of The Rules is the whole point of the exercise. Governance is also NOT like hopscotch, in that it’s not a game.
    Can you give an example of an “outcome” you don’t object to, but that was arrived at by a process you DO object to?
    I ask because it’s much easier to discuss specific cases than to trade pithy generalities about outcome-versus-process or governance-as-hopscotch.
    –TP

  107. Sure, Tony. I think that it should be illegal to serve or not serve people based purely on race or other factor, as in Heart of Atlanta Motel v. United States. But I think the Commerce Clause was misused in this instance, much like you’d perhaps misuse a screwdriver because you couldn’t find your chisel.
    Using the Commerce Clause to regulate anything that touches (second- or even third-hand) interstate commerce means that there isn’t much the Commerce Clause cannot do.
    The question of how you’d address that particular problem without using your screwdriver as a chisel is not one that I have an answer for, as IANAL. It may be that something else was needed, and still is.
    Question answered?

  108. Slarti,
    Yes, question answered.
    Now, is your objection that Congress justified its action by citing the Commerce Clause, or that the Supreme Court upheld that justification?
    I mean, how much more adherence to constitutional principles do you want? If an act of Congress, signed by the President, and upheld by the Supreme Court, is still a screwdriver …
    –TP

  109. That’s like asking, is your objection that the bank robber robbed the bank, or that the security guard just watched him do it without lifting a finger? Both, obviously.
    And what you cited isn’t adherence to constitutional principles. Would you call it adherence to “traffic principles” if someone drove 100mph in a residential zone, but took care to keep their engine running at all times, and arranged in advance that the traffic cop would be their cousin?
    Not exercising powers you weren’t granted is a basic constitutional principle.
    Enforcing constitutional limits on power is a basic constitutional principle.
    Passing something in both houses, getting a President to sign it, and then suborning the Supreme court into approving it, even though it violates the two principles above, is just “going through the correct motions”, not adhering to the principles.
    Now, unlike Slart, I don’t view compelling people in the private sector to refrain from racial discrimination as something that needs to be done. Ought they to so refrain? Sure. But they should not be compelled to. Slart, keep in mind that screwdriver/chisel isn’t being used on wood. It’s being used on people.
    As I’ve said before, freedom is the space between what we should do, and can be forced to do, what we shouldn’t do, and can be forced to refrain from. I don’t want people to be forced to live somebody else’s idea of a life of perfection, I want people to be FREE.
    If they’re free, some of them won’t live up to my idea of the good life, that’s true. I’d be content if they refrain from actively causing others harm. Only a slave is compelled to provide others benefits.
    I’ve remarked before, we went from a system where discrimination was mandated, to a system where discrimination was prohibited, without ever giving freedom a chance.
    We went from a system where a black man could be forced to labor for somebody who presumed to own him, to a system where a photographer could be forced to photograph an event she abhorred. Sure, the latter isn’t quite as bad. Yet. Give it time, the dragon hunters are only partway through their transformation into dragons at this point. And they haven’t yet obtained enough power to craft their goal: The “all that’s not forbidden is mandatory” dystopia which seems to have become the left’s holy grail.
    Now, if we were to enact and ratify an amendment to the 14th amendment, extending it’s reach to private actions, THAT would be adherence to constitutional principles. I’d still think it a mistake, but I’d never claim it was a constitutional violation.
    Because, unlike living constitutionalists, originalists actually draw a distinction between “good idea” and “constitutional”, and recognize that a lot of really bad ideas can be legal to implement.

  110. I’ve remarked before, we went from a system where discrimination was mandated, to a system where discrimination was prohibited, without ever giving freedom a chance.
    Freedom™ got about 100 years. the Jim Crow era was a time when law enforcement looked the other way (at best) as citizens enjoyed their Freedom™ to discriminate against minorities – discriminate them right out of their mortal coils, in fact.
    a system where you have the Freedom™ to discriminate as much as you want means a system where people will discriminate as much as their consciences allow – and some people have pretty rotten consciences.

  111. what is the “suborning the SCOTUS” stuff all about?
    Sure, the latter isn’t quite as bad.
    Good point, that.
    I’d be content if they refrain from actively causing others harm.
    So would we all.
    Only a slave is compelled to provide others benefits.
    Get used to your shackles, they’re not going away.
    The ideal you aspire to does not exist, has never existed, and will not exist. Perhaps you might consider that it’s not reality that is deficient, but your dream.

  112. Now, is your objection that Congress justified its action by citing the Commerce Clause, orand that the Supreme Court upheld that justification?

    Yes.

    Ought they to so refrain? Sure. But they should not be compelled to. Slart, keep in mind that screwdriver/chisel isn’t being used on wood. It’s being used on people.

    Yes, on people. People who would, in a better and more sensible world, have had the living crap kicked out of them a number of times before it ever got to the point where they’d be of age to deny service to someone on the basis of race.
    But we can’t do that, so we have to resort to other means.
    See, the people on the other side of that denied transaction are people.
    I’m not so much about people being compelled to transact business with others as I am about people being strongly encouraged to not be assholes, until such time as being that particular kind of asshole doesn’t even occur to them.

  113. I’ve remarked before, we went from a system where discrimination was mandated, to a system where discrimination was prohibited, without ever giving freedom a chance.
    slarti and cleek have already addressed this more than adequately, but what the hell, i’ll pile on.
    first, if you have a problem with a system where discrimination prohibited, then the problem is you, not the system.
    second, as has been amply noted, one man’s freedom to discriminate comes at the cost of somebody else’s freedom to live as *they* wish.
    it’s freaking childish to think you can live in a world full of other people and never have any limits placed on what you can and cannot do. if that’s what libertarians are about, they need to be held back in kindergarten for another year, until they can learn to play well with others.

  114. This all goes back a long ways to the Reconstruction, where the Republicans were doing just fine for a while, then decided to throw over everything Lincoln wanted in order to ensure that they got to keep the White House.
    Screwing over Southern blacks for the next century, nearly, in the process. I shouldn’t need to explain just what that involved, but in case I do, here’s a quick reference. I don’t normally even bother to follow links to Kos, but that one was actually a cool perspective piece.
    Setting that business aright, or more aright, is (or was) a necessity. Nobody but Congress could do that, I think. But it was never, ever about interstate commerce.

  115. No use bringing a screw driver or a chisel to an ax handle fight.
    Now, a Molotov cocktail sometimes works.
    Or a writ.
    Rock, paper, scissors.

  116. thanks for the link slarti.
    what i would add here is this:
    i agree that chisels should not be used as screwdrivers, and vice versa.
    i also note that tools are often used for purposes other than that originally intended when (1) something needs doing, and (2) the correct tool is not available. or, at least, when the shortest path to getting (1) done is to use the tool that *is* at hand.
    i’m not saying it’s good or bad, it’s just what actually happens.
    what this is not, is evidence of is some kind of weird will to power, or desire to enslave the mass of humanity.
    we live in a complicated society. things often happen in whatever way is available, as opposed to whatever way is best.

  117. what this is not, is evidence of is some kind of weird will to power, or desire to enslave the mass of humanity.

    I’m not arguing that.
    My dad’s neighbor noticed recently that one of the previous residents had installed a fence along the property line, but rather than putting it on the line, which wasn’t really convenient, he moved it over about eight feet. Just to make it official, he dug up the surveyor’s stake and put it where the corner fencepost was placed.
    Now it’s on the property appraiser’s page as part of Dad’s property. This can likely be undone, but it will take some work.
    That’s expediency for you, sometimes.

  118. And so dies liberty, bit by bit, at the hands of people who think it’s more awful to be an “asshole” than to deprive people of their liberty. So long as they get to define “asshole”.

  119. “But it was never, ever about interstate commerce.”
    This may be true in some pure sense regarding the specificities of the Atlanta motel case, (and I’m happy to defer to our legal beagles on this), but it seems to me the entire history of slavery/discrimination case law came to rest in the Interstate Commerce Clause, first, by Congress’ inability and refusal to use the Clause to regulate slavery across state lines, despite and except for the Fugitive Slave Act, and later (too late for many) by the accretion of legal precedent which made the Clause a home for anti-discrimination case law.
    Turns out we can blame the Founders for this, too, if this article (there are many) is correct (the piece isn’t complete), because they provided such crappy tools in the toolbox, a primitive chisel, a screwdriver of sorts, and they had no idea what a Sawzall was, though John Brown seemed to have the drift of it.
    http://muse.jhu.edu/login?auth=0&type=summary&url=/journals/civil_war_history/v054/54.1morrison.pdf
    Having those discriminated against cooling their heels further by the long process of ratifying (after several rejections over many more decades, I’m quite sure) additional language in the 14th Amendment regarding discrimination in the private sector, per Brett’s preference, was, let us say, unrealistic.
    A legal nuclear option was required to head off a nuclear standoff in the streets, some of which we experienced, but the mystery of American history is why all of us weren’t murdered in our beds some time between 1776 and 1965, while the legal machinery clanked along.
    THAT was restraint for which assholes (even those who are merely 3/5ths of an asshole) everywhere should be thankful.
    It would have taken a village of assholes of a different color to define “asshole”.
    I would add that adding that language via amendment today to hasten anti-discrimination progress in the area of gay rights would be too little way too late as well. It wouldn’t pass nationally now or in the near future (the private sector, for slippery slope reasons, amplified by the usual suspects, would squash such a move like a bug) and thus the process proceeds peacefully but piecemeal with funky legal maneuvering.

  120. It’s just awful to temporarily kick the ass of some assholes so that an entire segment of the population can stop being oppressed.
    That’s the sound of liberty dying, right there.

  121. I’m not arguing that.
    Understood.
    The argument has, however, been made by other parties.
    And so dies liberty, bit by bit
    “I’d like a cup of coffee and a sandwich.”
    “We don’t serve niggers. Now get out before we kick the shit out of you.”
    No “bit by bit” there, seems like more of a whole-hog thing to me. And not “dying”, but stomped to death.
    And for “niggers” feel free to substitute “Jews”, “Japs”, “Irish”, “fags”, or any of the 1,000 other demographics that have, at some point, been subject to that kind of horseshit.
    Seriously Brett, are you pranking us?
    It’s amazing to me the hills that people choose to die on.

  122. I am sad to inform you that there’s nothing in the spam trap.
    Crap.
    It was something along these lines:
    I don’t view compelling people in the private sector to refrain from racial discrimination as something that needs to be done. Ought they to so refrain? Sure. But they should not be compelled to. Slart, keep in mind that screwdriver/chisel isn’t being used on wood. It’s being used on people.
    If we don’t have certain, enumerated *basic* limits on our lesser inclinations, then I want to move.
    This is precisely the type of statement that draws Cleek’s rather hyperbolic response and justifies progressives everywhere in indulging in their own lesser inclinations.
    Libertarians would have no limits on ‘economic freedom’–well, perhaps the 13th amendment is ok, but why slavery shouldn’t be allowed, if it was consensual, is a mystery. Progressives, OTOH, often argue, as a matter of principle, that accepting any limits on economic freedom (or any need for gov’t regulation) is inconsistent with objecting to other limits on economic freedom or gov’t regulation. This line of argument, in one form or another, has been advance here more times than I can count.
    Where freedom of association/religion clash at the micro level, progressives endorse a litigious gay couple suing a private caterer for not wishing to cater a gay wedding. Where the same freedoms clash with any “right” labeled by the left to fall under the rubric of Women’s Health, those freedoms fall, despite their being grounded in the constitution.

  123. I have thought for some time that Brett’s definition of “freedom” is like Euclid’s 5th Axiom. There’s no point arguing whether it’s “true”.
    Accept Euclid’s 5th Axiom, and you get a self-consistent geometry — a magnificent edifice of theorems derived by strict logic from the axioms. Your geometry is perfect — on a flat earth.
    –TP

  124. why slavery shouldn’t be allowed, if it was consensual, is a mystery.
    this is actually a position Nozick takes in “Anarchy, State, and Utopia”. so, not a hypothetical, and not a fringe libertarian position.
    as far as the issue of “private” behavior, what I’d submit is that commercial activity isn’t private. if you’re buying and selling, you’re no longer in the realm of private behavior, and your druthers are no longer paramount.
    the limitation on regulation at the federal level has to do with the proper scope of federal vs. not-federal regulation – i.e., if it doesn’t cross state lines, it doesn’t fall in the purview of the feds – rather than what can or can’t be regulated by government at all.
    i note mck’s criticism here:
    “accepting any limits on economic freedom (or any need for gov’t regulation) is inconsistent with objecting to other limits on economic freedom or gov’t regulation”
    but IMO the argument is not that *some* kinds regulation of commercial activity is OK but other kinds are not OK, but rather than some is useful and some is not.
    so, if the feds wanted to rule that any pack of gum sold across state lines would have to include at least 5 sticks, IMO that would be constitutionally valid, but also unnecessary and stupid.

  125. Here’s a link to McKT’s reference to the case of the private caterer, along with the Colorado case of the wedding cake purveyor refusing to bake a cake for a gay couple.
    http://www.christianpost.com/news/calif-caterer-refuses-to-do-gay-wedding-based-on-christian-beliefs-i-hope-you-appreciate-my-honesty-112281/
    McKT’s seems to be trying to establish some middle ground between our lesser inclinations, and their inconsistencies, though I’m a little confused by his distinctions.
    In the matters of the Christian cake purveyor and the Christian caterer refusing services to gay couples, I will note the small, but ironic phenomenon of Hollywood’s movie typecasting all wedding cake purveyors and wedding caterers as gay who seem to be willing to take on all comers, so to speak.
    I’m with George Carlin. This takes the cake. Where? Where do you take a cake? Down to the bakery to visit the other cakes?
    I didn’t know there were straight cakes and gay cakes.
    Though jailbirds like a cake with a chisel, a screwdriver, and a hacksaw baked in to preserve their liberty.
    Who brought it into the prison makes little difference.

  126. So the precise truth of the matter is that originalists want people to STOP treating the Constitution as though it were a religious document, and start treating it like law, where you change the words when you want to change the meaning.
    We’ve been down this road before, you and I- you think that (similar to the pope) when it comes to Constitutional interpretation you are inerrant. That this strikes some as a quasi-religious stance isn’t surprising, but at the same time I can see why pointing that out bothers you so much.
    fyi, second amendment *still* has a dependant clause at the front.
    As I’ve said before, freedom is the space between what we should do, and can be forced to do, what we shouldn’t do, and can be forced to refrain from. I don’t want people to be forced to live somebody else’s idea of a life of perfection, I want people to be FREE.
    And I wholeheartedly endorse this position. With the caveat that, being the practical person that I am, I don’t care whether their freedom is being restricted by a govenment, a union, a corporate person, a religious organization, or a pack of ^$*#ing ferrets. Praising freedom in the abstract while ignoring it in practice is- well, kinda quasi-religious again.
    If freedom means black people can be denied an education, a decent job, a home in a decent neighborhood, access to good medical care, legal advice, etc- as long as it’s done by private actors and not the government- then that’s not freedom as I recognize it. The freedom to buy any home anywhere- but no realtor will sell you a house in neighborhood X, and neighborhood Y has a covenant against black people, and neighborhood Z’s private toll road operator refuses to allow blacks to traverse their streets… that’s not freedom.
    In the final analysis (and as libertarians are fond of pointing out), government is just people. Churches are just people, corporations are just people, neighborhoods are just people. Singling out one group’s activities and restricting them in the name of freedom while allowing all of the others to run rampant- to very bad effect- isn’t supporting freedom. It’s fetishishtic, and could only be embraced by peope who haven’t suffered discrimination or other societal oppression. Those for whom the ‘heavy hand of government’ is already pretty light, but heavier than any other tool of social conformity arrayed against them.
    Only a slave is compelled to provide others benefits.
    If we’re talking about taxes, then you’re saying that everyone who has every lived under a government was a slave? Are we really going down the taxation-is-theft-but-sometimes-it’s-Ok-for-stuff-Brett-wants road? nb this is probably not the conversation where you want to use the excuse ‘sometimes you need to accept a small wrong in order to make things work properly’ as I imagine russell et al would be happy to apply that useful rule to eg racial discrimination.
    And so dies liberty, bit by bit, at the hands of people who think it’s more awful to be an “asshole” than to deprive people of their liberty.
    russell already said it but apparently you’re still on the soapbox- that state never existed. Bemoaning its passing is a little on the drama queen side I think.

  127. Where freedom of association/religion clash at the micro level, progressives endorse a litigious gay couple suing a private caterer for not wishing to cater a gay wedding. Where the same freedoms clash with any “right” labeled by the left to fall under the rubric of Women’s Health, those freedoms fall, despite their being grounded in the constitution.
    I can’t even tell what specific hypocrisy you’re trying to call out here; rhetorical flourish has won out over clarity I think. I *think* you’re suggesting that the freedom of speech means the freedom to speak to specific people even when they don’t want to talk to you (and also to pose a threat to them and intimidate them under the guise of speaking). But you might also be talking about eg dispensing medications.

  128. “In the final analysis (and as libertarians are fond of pointing out), government is just people”
    So’s the mafia, but that doesn’t mean I have to like Guido setting fire to somebody’s business if they don’t pay for ‘insurance’.

  129. what I’d submit is that commercial activity isn’t private.
    And I disagree: subject to limitations that emanate from our constitution, back when I had my own shop, I hired who I wanted and chose carefully who I would have as a partner. I still retain the right to reject representation of another for any reason or for no reason.
    Your deal with your employer is a private matter of contract.
    Race is a constitutionally protected class. Religion is a constitutionally protected subject. Some aspects of religion are not rational to outsiders, even if they make perfectly good sense to practitioners.
    Choosing to make a living as a self employed entity rather than as someone else’s employee does not waive every right you might otherwise have to follow your religion. Neither gender nor orientation are expressly constitutionally protected.
    There are going to be limited areas of friction between one person’s rights and those of another. Requiring Christians to cater gay weddings is oppressive. It is not as if there weren’t more than adequate avenues elsewhere. This is, plain and simple, two private citizens using gov’t to coerce another’s private economic behavior that is also constitutionally protected.
    There was a thing this weekend where a Hispanic actress in CA got fired by a lefty theater production because she was in an ad with a Tea Party Republican. She was expressly fired for her political views. Should she have a right to be reinstated by gov’t force?
    I don’t think religious objection to gay civil marriage is reasonable, because we are talking about civil, not sacramental, marriage. Regardless of how I classify religious opposition to gay marriage, I respect the right to oppose gay marriage for religious reasons, i.e. I am respecting the right to oppose, not the substance of the opposition.
    Gay marriage, as opposed to a gay person buying groceries or gasoline, is freighted with issues for Christians, Muslims and some Jews. Could an atheist baker be compelled to cater to a fundamentalist Christian wedding?
    Could an expressly Muslim dating site be required to offer match making services to Jews?
    In the US, we allow religions to isolate themselves without necessarily violating others’ rights or the law.
    Selling groceries or gasoline is a purely secular activity. Marriage is not. A bakery is secular, wedding cakes being an adjunct to weddings, may or may not be, but when they are not secular, the Christian or Muslim baker is entitled to deference–for weddings.
    Progressives worry very little about constitutional principle, by and large, when a value they cherish clashes with another’s religious or property interests.

  130. I can’t even tell what specific hypocrisy you’re trying to call out here; rhetorical flourish has won out over clarity I think. I *think* you’re suggesting that the freedom of speech means the freedom to speak to specific people even when they don’t want to talk to you (and also to pose a threat to them and intimidate them under the guise of speaking). But you might also be talking about eg dispensing medications.
    Fair point, it was a bit vague. No, I was not addressing the abortion protesters. *That* is a clear clash of two conflicting constitutional rights and my leaning is that the protester’s right to be heard does not trump the woman’s right to not have to listen. I’m pro life, but I don’t see this as a Roe-related issue. If protesters want to stand on the other side of the street and wave signs, fine. But I see no right to compel another to listen.
    You correctly inferred that I was alluding to BC and religious conviction. I think BC is fine and my wife and I have redundantly and permanently practiced BC. I would leave conscientious objectors on this topic along. I certainly wouldn’t go out of my way to knock the chip off of their shoulder.

  131. McKT’s seems to be trying to establish some middle ground between our lesser inclinations, and their inconsistencies, though I’m a little confused by his distinctions.
    I was referring to the Oregon case in which the baker went out of business under the combined weight of an state investigation and an organized boycott of her business.
    The problem with that kind of incivility is that it cuts both ways. High minded group action that is oppressive is repugnant.
    As I said above, weddings are different. For the religious, they are an expressly and unavoidably sacramental activity. One aspect of the marriage rights campaign is the representation, the inducement, that there is no intent or desire to compel others to violate their own religious principles–well, maybe that is like that insurance policy that if you like it, you get to keep it. Many of us who support marriage rights do not and will not support imposing one group’s rights on another’s.

  132. Your deal with your employer is a private matter of contract.
    And, is subject to a broad range of regulations.
    Requiring Christians to cater gay weddings is oppressive
    In the case you cited, the caterer didn’t just refuse to take the business, she wrote to the couple and stated explicitly that she would not take the business because they were gay.
    She, herself, through her need to make a great big stinking point about it, took the situation from a simple matter of her not wanting the business, to her potentially violating the civil rights of the couple.
    As it turns out, she wasn’t required to cater the wedding, and is not liable to any legal action because she’s a “service” not a “business”, whatever that means.
    In any case, this is not a fight that the gay couple picked, nor was it a matter of “progressives” looking for “christians” to oppress.
    Progressives worry very little about constitutional principle, by and large, when a value they cherish clashes with another’s religious or property interests.
    Perhaps you should consider that progressives are quite often motivated by their own religious convictions and interests.
    If you want to make stuff like this a pissing match about whose god is better, have at it, but don’t assume you’re working from any kind of moral higher ground.

  133. I understand, but do not necessarily agree with the legal, constitutionally-phrased logic behind the baker’s religious objections, but I wonder, would it be legal for a Christian gas station owner to refuse to sell gasoline to a gay couple who are trying to get to the church on time?
    I don’t understand what is exclusively secular about owning a gas station or just about any profession, as opposed to baking cakes, if religious objection to gay marriage is the hill they decide to defend.

  134. the history of letting people discriminate against whoever they want is well documented. and we know exactly the kind of society it created. likewise, we know exactly why the anti-discrimination laws were put into place and what they accomplished.
    those saying we should go back to a system where a department store should be free to refuse to serve blacks, or to make them use separate (and decidedly unequal) facilities, should demonstrate to the rest of us that the value of their Freedom™ is so great that it outweighs the evils of segregation.
    i suppose it’s hyperbolic to point this out.
    that this conversation take place on MLK Day seems sad.

  135. There was a thing this weekend where a Hispanic actress in CA got fired by a lefty theater production because she was in an ad with a Tea Party Republican. She was expressly fired for her political views. Should she have a right to be reinstated by gov’t force?
    If it was up to me and there is no extra factor at play here*, my answer would be ‘yes’ or there should be some kind of compensation. Firing for views that do not directly interfere with work should not be legal cause for firing**.
    *e.g. if the ad explicitly attacked her employer, there’d be cause.
    **not renewing a time limited contract on the other hand would be OK

  136. I agree, the actress should not have been fired for her views as expressed.
    After all, she had agreed to appear in “The Vagina Monologues”, a role that will (would have) come back to haunt her if she was ever up for consideration as a Tea Party political candidate herself, since vaginas are to be neither seen nor heard, but may quarter troops and shut up and listen, with that set of people.

  137. “that this conversation take place on MLK Day seems sad.”
    If not for Martin Luther King and anti-discrimination laws, no matter the funky legal justification, we would be celebrating Malcolm X Day and Stokely Carmichael Week under a whole different set of assumptions.
    The Black Panthers would be the largest gun rights organization in the country, not the NRA.
    Those campers unhappy because of legal process quibbles with the largely peaceful process under which things turned out would be having a tough time even finding a campsite.

  138. She, herself, through her need to make a great big stinking point about it, took the situation from a simple matter of her not wanting the business, to her potentially violating the civil rights of the couple.
    Yes, but that wasn’t the person who went out of business, as I note upthread somewhere. The very end of the link notes the person in Oregon.
    Perhaps you should consider that progressives are quite often motivated by their own religious convictions and interests.
    If you want to make stuff like this a pissing match about whose god is better, have at it, but don’t assume you’re working from any kind of moral higher ground.

    I agree some progressives are also religious. Many are not and I’d hazard a guess that most here are not. I’m not sure where you got the ‘whose god is better’ thing–that’s the last conversation I’d have with anyone. I’m fairly confident a careful read of what I’ve said would indicate as much.
    I do stand by my quote: progressives generally hold that others’ religious and property rights should give way to progressive views. There is nothing theological about that position. I am treating religious rights as I would any other constitutionally secured right.
    I understand, but do not necessarily agree with the legal, constitutionally-phrased logic behind the baker’s religious objections, but I wonder, would it be legal for a Christian gas station owner to refuse to sell gasoline to a gay couple who are trying to get to the church on time?
    Assuming this is not some vestige of a the late J Thullen ghosting in and pulling my leg, no matter how you slice or dice it, selling gas isn’t participating in any legally significant sense in a marriage, an affair, a trip to the drugstore or in a mission to carry out a terrorist attack. Every day life is full of banal, ordinary, consequence-free acts that play the rare causal role in some noteworthy event. Commerce is the same way and until the commercial activity imposes on another’s conscience, e.g. compelling doctors to perform abortions or euthanasia, should it ever come to that, there is no basis for refusing to deal with someone.
    i suppose it’s hyperbolic to point this out.
    It is, as well as being one of the bigger straw men raised in this thread. Do you really think there is anyone outside of some bizarre outlier who is looking to dial back the the 14th Amendment jurisprudence post 1954?

  139. According to some polls (after Obama became POTUS) I have seen there are several states in the union where anti-miscegenation laws would still have majority support, i.e. a majority of those polled told pollsters that in their opinion it should be illegal for people from different races to marry in their state. Iirc the question was not ‘would you vote for it?’ but about the opinion what the law should be (which is a huge difference).
    I strongly assume that a significant part of these people would love to see a return of Jim Crow.
    Iirc Mississippi formally struck slavery from their books only in 1988 (i.e. slavery would have been legal instantly had Mississippi left the Union or the federal ban had been removed). OK, the UK used its century old laws against witchcraft the last time during WW2 to go after fraudulent media (spiritists) spilling military secrets after more than a century without any witch trial, so old laws staying on the books do not necessarily mean anything.

  140. According to some polls (after Obama became POTUS) I have seen there are several states in the union where anti-miscegenation laws would still have majority support, i.e. a majority of those polled told pollsters that in their opinion it should be illegal for people from different races to marry in their state.
    Could you provide a link to that? I sincerely doubt that statement. There is a lot of racism around. But even the “rednecks” I know (and I use that as a disparaging term for people who put Confederate flag bumper stickers on their car, etc.) would not oppose interracial marriage (even though they don’t, maybe, like African-Americans generally). There are just too many interracial couples who meet at church.

  141. I do stand by my quote: progressives generally hold that others’ religious and property rights should give way to progressive views. There is nothing theological about that position.
    “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s.”
    It’s definitely possible to make a theological case for something like this, especially given that this is stated in the context of tax resistance; i.e., the refusal to provide passive and indirect support of something considered objectionable.

  142. Living just south of Greenville, I encounter a lot of “rednecks”, Confederate flag, AK-47 in the trunk, and all. I can confirm that, if they harbor any racial animosity, or opposition to inter-racial marriage, they’re pretty darned good at hiding it. And you’d think I would notice, given my own marriage.
    Inter-racial couples are an everyday sight here in the South.

  143. “Inter-racial couples are an everyday sight here in the South.”
    Strom Thurmound was a pioneer of sorts.

  144. Strom Thurmound was a pioneer of sorts.
    Not really. He was just continuing in a certain Southern tradition.
    That said, I don’t think it’s true that most people in the South reject interracial marriage. As much racism still exists in the South, there are “exceptions” and people, for the most part, realize that good people find good people with whom they are happy.
    I would like to see Hartmut’s poll that indicates otherwise, or I won’t be convinced.

  145. I’m not sure where you got the ‘whose god is better’ thing
    on one side is someone with a conservative understanding of what’s right, rooted in their religious convictions.
    on the other is someone with a progressive understanding of what’s right, rooted in their religious convictions.
    the two understandings conflict, as regards some aspect of public life.
    you can try to resolve it by insisting that no-one should be required, in any context public or private, to do anything that conflicts with their religious convictions.
    the result of that will be a pissing match about whose god is better.
    in general, those are lose-lose propositions. IMO it’s better to just leave your Very Strong Religious Principles out of the discussion.
    or at least acknowledge that they may very well exist on both sides, and see if you can’t find some least-bad compromise, so we can all sort of get along.
    “i’m right, because god says i’m right!”. not a good opening position for sorting things out.
    I’d hazard a guess that most here are not
    i don’t think we’ve ever had a show of hands, so i couldn’t tell you. my guess is that you are more wrong than right.
    conservative religious people tend to be more evangelical, and therefore more inclined to think it’s their responsibility to convince everyone else of their rightness. i think the difference is there, rather than in the actual prevalence of religious faith or conviction.
    my opinion, and worth both pennies.
    progressives generally hold that others’ religious and property rights should give way to progressive views.
    substitute “conservative” for “progressive” and it’s equally so.
    seriously, conservatives frequently argue that they aren’t interested in imposing their values on other people, only liberals do that.
    that is, frankly, and with all due respect, crap.
    to be honest, i’m actually not that bothered by people who don’t want to do business with other people for any of a variety of personal reasons, or who want to offer their services to only a subset of the population. especially if the same good or service can be had elsewhere.
    if muslims want to start a muslim only dating service, i have no problem. frankly, if a caterer doesn’t want to cater gay weddings, for whatever reason, i don’t really have a problem.
    when you reply to a request for your services by saying “no, and to be honest it’s because my religion tells me your getting married is an abomination and i can’t bring myself to support that – hope you appreciate my honesty!”, you can probably expect the person who simply wanted to hire you to object. and if your scruple – and your loud-and-clear, finger-poke-in-the-eye expression of your scruple – happens to take you over a legal line, you can probably expect to hear from an attorney.
    “no, thanks” will get it done. there’s no need to be a jerk.

  146. and another thing, he said, because this whole ‘progressives are stepping on the tender feelings of the religious community’ thing is kinda pissing me off.
    the same scriptures that tell the caterer that she shouldn’t be involved with a gay wedding will tell her that she shouldn’t be involved in a marriage where either party is divorced.
    or where one party is a believer and the other is not.
    is the caterer turning down gigs for divorced couples, or interfaith (or only-party-has-faith-at-all) couples?
    if not then her issue is less religion, and more the terrible ickiness of teh ghey. says i.
    which is fine, whatever floats your boat, but she shouldn’t be using her religion as an excuse.
    what i see lately is lots of self-proclaimed religious people provoking fights with other people, and then claiming to be persecuted when those folks object.
    they should knock it off, they are giving their faith a bad name.
    once again, my opinion, take it FWIW.

  147. McTx: progressives generally hold that others’ religious and property rights should give way to progressive views.
    True or not, this sentence is at least ill-structured. “Rights” and “views” make a poor juxtaposition. As written, the sentence seems to imply that “progressives” have no particular reason for their “views” except a desire to restrict the rights of others.
    The progressive “view” is that EVERYBODY has rights, and we have to cope somehow with the unfortunate fact that one individual’s rights can sometimes conflict with another individual’s rights.
    Conflicts of rights can be resolved in many ways, the least objectionable way being the filing of lawsuits, the adjudication of lawsuits, the appeal of the lawsuits, and ultimately — because the framers of the Constitution made the selection of Supreme Court justices an explicitly political process — the will of the electorate. By “ultimately”, I mean “in the long run”, which can be very long. Short term, everybody has the right to file a lawsuit.
    We can easily imagine a different conflict of rights involving wedding cakes: gay couple orders cake; baker refuses order on religious grounds; bakery owner fires baker. Should owner’s property rights trump baker’s religion rights? I imagine that McKinney would support the owner’s right to fire the baker. I even have a sneaking suspicion that the ACLU would file suit against the owner, on behalf of the baker. Balancing rights is a complicated business, which is why lawyers get paid well.
    That even black people, even female people, even gay people, even (god help us) poor people, have rights is a “progressive” view because it was not a widely-held view in what you might call pre-progressive times. Rich, straight (more or less), male, white people have always had rights — and got used to not having to reconcile them with the rights of those other people. So it naturally annoys them when progressives come along and say: “You know, everybody has rights, not just you.”
    –TP

  148. Julian, thanks for the links. They don’t show that a majority of people in any jurisdiction think that miscegenation should be legal. Sure, it shows that a disturbing number of Republicans still think that way, but not a “majority”.

  149. Sure, it shows that a disturbing number of Republicans still think that way, but not a “majority”
    Excuse me, not a “majority of people.”

  150. I should not trust my own memory. I thought I remembered a number slightly north of 50% for Mississippi citizens not just Republicans (on the other hand, are there any Dems in Mississippi? 😉 ). I also thought the polls were from Obama’s first or second year in office not 2011/2012. Plus I obviously confused plurality (46:40) and majority.
    Google exclusion search by using ‘-‘ seems not to work properly with numbers (despite -2012 -2011 -46 I got drowned in links to that 46% poll).
    Looks like the only thing I was not at least partially wrong about was the question.
    Note to self (put on top of stack of identical notes): first google, then post (or only refer to printed sources that you know the readers cannot check)

  151. ” So it naturally annoys them when progressives come along and say: “You know, everybody has rights, not just you.””
    From the new, progressive language of the proposed voting rights act:
    “‘‘(B) The term ‘minority’ means persons
    18 who identify themselves as being—
    19 ‘‘(i) of Hispanic or Latino origin;
    20 ‘‘(ii) of a race other than white; or
    21 ‘‘(iii) of 2 or more races.
    22 ‘‘(C) The term ‘‘nonminority’’ means per-
    23 sons who identify themselves as being—
    24 ‘‘(i) not of Hispanic or Latino origin;
    25 ‘‘(ii) white; and
    1 ‘‘(iii) not of any other race”
    Get that? Whites are, by definition, and utterly irrespective of actual numbers, never to be considered a minority. Anywhere. But progressives are all about everyone having equal rights.
    It’s just that some animals are less equal than others, I guess.
    “Google exclusion search by using ‘-‘ seems not to work properly with numbers”
    Oh, yes, I recall reading recently that Google recently broke its search syntax, on purpose, because it’s trying to cater to morons. A shame, really.

  152. Just finished reading Origins of the Bill of Rights by Leonard W. Levy. It is a short, but interesting read. My takeaway:
    Liberals tend to be ninthers.
    Conservatives tend to be tenthers.
    The Founders occasionally pulled sh*t out of their ass using a similar process that Slarti finds so objectionable.
    Something for everyone.

  153. Whites are, by definition, and utterly irrespective of actual numbers, never to be considered a minority.
    you’ll probably shocked to learn that the definition there is essentially the same as the one used by the federal government for all kinds of things. Mr Sensenbrenner didn’t just pull that one out of his ass.
    the CDC:

    Racial and ethnic minority populations are defined as:
    Asian American,
    Black or African American,
    Hispanic or Latino,
    Native Hawaiian and Other Pacific Islander,
    American Indian and Alaska Native.

    http://www.cdc.gov/minorityhealth/populations/REMP/definitions.html
    def’n of “minority owned biz”:
    http://definitions.uslegal.com/m/minority-owned-businesses/
    etc..

  154. The progressive “view” is that EVERYBODY has rights, and we have to cope somehow with the unfortunate fact that one individual’s rights can sometimes conflict with another individual’s rights.
    Perfectly said, thanks Tony P.

  155. I’d probably not be shocked by that: Orwellian doublespeak is my default expectation from the government these days.
    It is, none the less, offensive to define “minority” in a way which doesn’t have anything to do with relative numbers. It reduces the meaning of the word to, “Favored client group”.
    Tell me, why should whites support a civil rights law they are explicitly excluded from benefiting from? “Let’s treat everyone fairly.” is a powerful demand. “Let’s treat everyone but you fairly.” lacks a certain persuasiveness in comparison.

  156. It is, none the less, offensive to define “minority” in a way which doesn’t have anything to do with relative numbers.
    “white” is still more than 70% of the US. no other group comes close. someday, when “white” is an actual minority, i’m sure the non-white majority lawmakers will revise the offending definitions accordingly.
    Tell me, why should whites support a civil rights law they are explicitly excluded from benefiting from?
    whites are already benefiting from the status quo. these laws are attempts to compensate for the fact that the status quo also works against minorities.

  157. Could an atheist baker be compelled to cater to a fundamentalist Christian wedding?
    Should fundamentalist Christians be eating baked atheists at their weddings?
    (Sorry, just trying to lighten things up a bit.)
    Brett, just how long do you think it’s been that non-Hispanic whites haven’t constituted a majority in the United States?

  158. I thought I remembered a number slightly north of 50% for Mississippi citizens not just Republicans (on the other hand, are there any Dems in Mississippi? 😉 ).
    Thirty-eight percent of Mississippians are Democrats. Over a third of the population of Mississippi is African-American.

  159. “”white” is still more than 70% of the US.”
    Nobody lives “in the US”. People live in specific places in the US, where whites are perfectly capable of being local minorities.

  160. “Tell me, why should whites support a civil rights law they are explicitly excluded from benefiting from?”
    Orwellian, that sentence, but not like you think.
    Because they had the Constitution and the Bill of Rights sewn up from the get-go?
    By the way, catering to morons has never been a losing strategy in the free market. They are, after all, a majority.
    Sarah Death Palin has a right to a search engine, too, ya know.
    Besides, I think Google is trying to avoid being accused of “elitism”, “ivory-tower thinking” and all of the other Orwellian terms self-styled victims use to describe their dyspeptic large-bowel complaints.
    Capitalism’s Newspeak.
    Ask Roger Ailes.
    Thank you for the leavening agent, Hartmut.
    Actually, atheists, when baked into a meat pie, lend a certain bitterness to a catered affair. Best to a serve with a strident wine choice.
    Kingsley Amis claimed he was an atheist, but when pressed, he said it’s not that he doesn’t believe in God, it’s that he hates Him. He, Amis, drank many strident wines over his lifetime, though his fiction is hilarious.
    Now, your agnostic is a good chicken substitute, tender and easy on the digestion.
    Especially the sweetbreads.

  161. Nobody lives “in the US”.
    Nobody lives on Planet Earth, either, I guess. You’re a real hoot sometimes, Brett. This is the basis on which you accuse the government of double-speak.

  162. Nobody lives “in the US”. People live in specific places in the US, where whites are perfectly capable of being local minorities.
    Federal laws apply to the US as a whole.
    Tell me, why should whites support a civil rights law they are explicitly excluded from benefiting from?
    Some people are motivated by things other than what’s in it for them.
    That’s apparently not you, but not everyone is like you.

  163. When women gained sufferage, as if they needed more suffering, many men wanted compensatory damages in the form of TWO votes per guy to make things equal again.

  164. So, you’d agree that it’s perfectly logical to treat whites as a minority group everywhere in the US, because whites are a minority world-wide?
    Look, this is nothing but rationalization for people who don’t want the guarantee of equal treatment under the law to ever benefit whites. Whites are perfectly capable of being the minority in a particular locale, happens all the time in the US, and are perfectly capable of being discriminated against as such minorities.
    You can persuade people that everybody has a right not to be subject to racial discrimination. Persuading them that everybody but themselves has that right is, properly, a hard sell.
    I can’t think why anybody but a racist would even attempt that sell.

  165. So, you’d agree that it’s perfectly logical to treat whites as a minority group everywhere in the US, because whites are a minority world-wide?
    No. We’re talking about laws applying to the United States, where whites are a majority. When we acheive the progressive dream of one-world government, then we can treat whites as a minority (but not an oppressed one!).
    Frankly, I have no problem with protecting the voting rights of white people. I also have no problem recongnizing the history of voter suppression in this country, as it actually existed and continues to exist. Even where whites are a local minority, there generally is and has been a white-dominated power structure in place.
    But if you think I’m okay with, say, black people preventing white people from voting, you’re even more paranoid than I thought.

  166. Nobody lives “in the US”. People live in specific places in the US, where whites are perfectly capable of being local minorities.
    oh for fuck’s sake. it’s a federal law. it applies to the entire US.

  167. Whites are perfectly capable of being the minority in a particular locale, happens all the time in the US, and are perfectly capable of being discriminated against as such minorities.
    I mean, look at the wording here. Whites are “perfectly capable of being discriminated against as such minorities.” Whites have a passive-voice, hypothetical potential for oppressed-minority status. How do they endure this terrible burden?

  168. This catering to morons that is spoken of …
    Are these gay morons? Is there cake involved?
    Is the complaint that two morons are marrying each other, or is it that we’re facing a mixed marriage … a moron marrying a non-moron, for want of a better word.
    From my experience, I’ve found that folks in both the South and the North have no particular problem with either arrangement, which speaks to the fact that we probably don’t require any further language finagling in the supreme documents.
    Except in Rick Perry’s case. Especially when he crosses state lines.
    That’s interstate commerce.

  169. … a moron marrying a non-moron, for want of a better word.
    My non-moron wife is reasonably happy in her mixed marriage, I’ll have you know.

  170. Whites are perfectly capable of being the minority in a particular locale, happens all the time in the US, and are perfectly capable of being discriminated against as such minorities.
    That’s true.
    However, “capable of” is not the same as “have been”.
    The law in question is intended to address specific historical instances of voter suppression, which targeted people who weren’t white. Hence, the desire to measure voting turnout for people who *aren’t white*.
    The law also does include language to address discrimination in the area of voting rights *on the basis of race or color* – any race or color – so as far as establishing the legal right of whites to vote, we’re all good.
    Non-whites are called out here for purposes of measuring turnout, because *those are the people whose actual access to voting was suppressed*. Not hypothetically, but actually, and systematically, for years.
    If it ain’t broke don’t fix it, right? Isn’t that the mantra.
    White access to the vote ain’t broke. That’s why whites are not called out, specifically, for attention when measuring voter turnout.
    This comment is sort of a pro forma exercise, of course, because the folks who need this explained to them are not actually open to hearing it, and the folks who might actually be open to hearing and receiving it don’t need it explained to them.
    So, consider it a box checked.
    Feel free to sift through what I’ve said here for evidence of my sekrit racism, though.

  171. I mean, look at the wording here.
    …in which Brett admits minorities are discriminated against while wondering what anti-discrimination laws are for.

  172. “In the final analysis (and as libertarians are fond of pointing out), government is just people”

    So’s the mafia, but that doesn’t mean I have to like Guido setting fire to somebody’s business if they don’t pay for ‘insurance’.

    That was *precisely* my point- whether or not freedom is being curtailed isn’t entirely dependent on whether the curtail-er is called ‘government’ or not. It’s a practical effect. Practically, I think that the ‘freedom’ to corner the market on a good and then charge an exorbitant rate does more harm to everyones’ freedom than it’s worth.
    I think that even non-anarchist libertarians get that, insofar as they understand that we could be *totally* free of government, but then practically the strong would prey upon the weak. Yet they feel it necessary to limit the powers of that government dogmatically to certain areas- not on practical grounds, but on some ideological point that stopping certain types of pratical freedom-reducing activity is actually counterproductive to ‘freedom’ in an abstract sense.
    Get that? Whites are, by definition, and utterly irrespective of actual numbers, never to be considered a minority. Anywhere. But progressives are all about everyone having equal rights.
    This feels like one of those conversations from the 80s where a conservative points out that white people are “minorities” in South Africa and therefore they should be getting the “special treatment”. Ha ha.
    Seriously, if white people are getting screwed over by redistrciting, manipulation of polling places, etc, then Im 110% for fixing it. Enthusiastically. With vigor.
    But it just isn’t happening. Why did they exclude whites? If I had to guess, it’s to prevent nuisance lawsuits by racist and racist-friendly groups trying to tie up the system. But that’s just an off-the-cuff guess.
    Nobody lives “in the US”. People live in specific places in the US, where whites are perfectly capable of being local minorities.
    And they’re capable of being oppressed in those areas. Frankly, it’s possible for a minority of people to oppress a majority, so all this discussion of the dictionary definion of minority versus the legal definition for these purposes seems to me quite the red herring. We’ve called them ‘minorities’ and ‘minority rights’ for a while in the US, to the point that these terms acquired a secondary meaning. Maybe someday Hispanics will be in the majority and this will be entirely archaic.
    One is either opposed to voting rights or not. Objecting to practical solutions to the supression of voting rights on flimsy theoretical grounds suggests to me a certain amount of comfort with their supression.
    I actually find that hilarious- you go ranting about freedom this, and freedom than, but when someone proposes a law to stop the use of government in supressing minority voters, all of a sudden you’re:
    1)on the side of not limiting government
    2)obfuscating the heck out of the matter
    That is, practically you’re one of the least sympathetic people on the board to freedom.
    Look, this is nothing but rationalization for people who don’t want the guarantee of equal treatment under the law to ever benefit whites…. I can’t think why anybody but a racist would even attempt that sell.
    Nice preemptive strike. Yes, the people trying to protect minorities from voter supression are the real racists here.
    Personally, I don’t think you have to be a racist to oppose voting rights- you can also be an amoral Republican who sees the potential impact on voting rates, and likes it. Or merely in political alliance with either of those groups. Or just someone who has a knee-jerk opposition to everything proposed by the left- the sort of person who views politics as one would a sporting event.
    But the idea that someone would oppose voting rights because they’re standing up for the oppressed white man (some one has to, right?)- no, I doubt that very much.

  173. “Yes, the people trying to protect minorities from voter supression are the real racists here.”
    The people defining “minorities” in terms which have nothing to do with who happens to be a minority, so that one particular race will not get treated as a “minority” even if it happens to be one.
    You write or defend a law which explicitly discriminates between groups on the basis of race, expect to be called a racist.

  174. You write or defend a law which explicitly discriminates between groups on the basis of race, expect to be called a racist.
    How do you write a law that addresses racial discrimination without addressing race?
    And by whom should we expect to be called racists? You?

  175. The people defining “minorities” in terms which have nothing to do with who happens to be a minority,
    if the jurisdiction is the US, as it is with federal law, “white” is the majority. period.

  176. By not writing it so that it assumes who is committing the discrimination, and who is suffering from it, without any reference to the facts of any particular case?

  177. By not writing it so that it assumes who is committing the discrimination, and who is suffering from it, without any reference to the facts of any particular case?
    That would be the 15th Amendment.
    See? No worries white man, we got your back.
    Regarding the Voting Rights Act of 1965, and subsequent legislation renewing that act, including Sensenbrenner’s proposed bill, there was and is no assumption made about who was committing the discrimination, and who was suffering from it. No assumption was made because none was needed.

  178. The people defining “minorities” in terms which have nothing to do with who happens to be a minority, so that one particular race will not get treated as a “minority” even if it happens to be one.
    I thought that Id answered that here:
    Frankly, it’s possible for a minority of people to oppress a majority, so all this discussion of the dictionary definion of minority versus the legal definition for these purposes seems to me quite the red herring. We’ve called them ‘minorities’ and ‘minority rights’ for a while in the US, to the point that these terms acquired a secondary meaning. Maybe someday Hispanics will be in the majority and this will be entirely archaic.
    Getting hung up on the use of the word “minorities” to describe non-whites seems like a pretty transparent ploy to me.
    But hey, Ill play along if you will. Let’s try this one: what percentage of voter suppression do you think is aimed at whites in America? Just a guess, no need for cites. Im curious to know how big you think the white voter suppression problem is.
    You write or defend a law which explicitly discriminates between groups on the basis of race, expect to be called a racist.
    Let me ask you this as well while we’re at it: is voter suppression a bad thing? Are eg the laws recently passed in North Carolina bad?

  179. Tell me, why should whites support a civil rights law they are explicitly excluded from benefiting from?
    There seems to be an implicit assumption here, that “benefit” can only mean either an economic gain or a political one. That is, there is, under this assumption, no benefit to, for example, living in a country where people are treated equitably. But I would argue that there is a actually a benefit to me, as a male Caucasian, in the civil rights laws and their enforcement. (But then, I have actual memories of how things really were before the civil rights act.)

  180. “Im curious to know how big you think the white voter suppression problem is.”
    Just guessing here, but I’d say… >0. So that defining it as 0 in the law is inappropriate.
    Seriously, what’s the justification for writing the law so that whites can’t be legally considered “minorities” for purposes of voting law, even where they are the minority? And such that all other races must always be considered “minorities” for purposes of voting law, even where they are the majority?
    Is the theory that racial discrimination by whites 50 years ago somehow implies that blacks can’t commit racial discrimination today in places where they’re the majority?

  181. Just guessing here
    Yes, you are just guessing.
    Seriously, what’s the justification…
    Because the specific cases the law is intended to address are cases of white people preventing non-white people from voting.
    Is the theory that racial discrimination by whites 50 years ago…
    No.
    The theory is that the same white folks who discriminated against non-white folks 50 years are prone to doing it again, now.
    This may seem horribly unfair to you, but it’s not a particularly far-fetched concept.
    As has been demonstrated since Shelby County v. Holder.

  182. Yes, but can you do this?
    http://www.youtube.com/watch?v=uzDStcltWLc
    Seems like the current voter suppression laws being passed around the country are designed to make sure that minorities in the minority nationally remain in the minority locally for voting purposes, even though those minorities in the minority nationally are in the majority locally when it comes to voting.
    Put another way, voter suppression, as currently being practiced, is a way of making sure white conservatives who may be in the minority locally, for voting purposes, ascend by hook and crook to the majority locally and nationally, for voting purposes, so that, even if they are in the minority nationally, they may take the majority of seats in state houses and Congress and maybe even accomplish a majority in the Electoral college.
    Now, for my next trick, I will attempt to disappear completely up George Orwell’s backside, if it’s not already too crowded all up in there.

  183. Yes, you are just guessing.
    In fairness, that’s more or less what I asked him to do. Seems kinda pile-on to bust his balls for it. 🙂

  184. Just guessing here, but I’d say… >0. So that defining it as 0 in the law is inappropriate.
    Ballpark though, what’s you’re guess? Id guess no more than a couple of %, and wouldn’t be surprised if it was an order of magnitude smaller. Frankly, I wouldnt be surprised if there wasn’t a single modern case of white people’s vote being intentionally watered down or interfered with by the government.
    Why did they exclude white people? I had one guess above. Upon reflection, another might be that there are a lot of decisions about voting made every year. And with no history of white people being denied the vote or having their right interfered with, is it a good idea to subject every decision to extensive Big Government scrutiny? Should we not try to limit this scrutiny and intervention to those cases where it has actually been an issue in the past? And then, if we actually do have an outbreak of white-voter suppression, we can deal with that with heightened scrutiny as needed?
    I mean- as a Big Government Liberal, Im ok with the Feds having more say in local elections. Seems like you would be against that. And, actually, Im wondering now if we can get you to say whether you’re actually opposed to eg the recent North Carolina laws; ie are you so passionate about voting rights in the abstract that you’ll object to a law protecting them because it doesn’t go far enough, but also not opposed to actual attacks on voting rights?
    Seriously, what’s the justification for writing the law so that whites can’t be legally considered “minorities” for purposes of voting law, even where they are the minority? And such that all other races must always be considered “minorities” for purposes of voting law, even where they are the majority?
    Do I need to ask again why you’re getting caught up on the definition of minority versus the secondary meaning it’s acquired in American English. If I say “apparently they wanted to hire a minority” do you *actually* not understand the statement and wonder ‘a minority in what context? Maybe there were three Native American applicants and the new guy is a white guy.’ Or do you actually understand this and feign misunderstanding? This is not complicated.

  185. Seems kinda pile-on to bust his balls for it.
    Actually, I’d say the burden was on him to demonstrate that there’s any point to his comments.
    Allow me:
    Ike Brown, Noxubee County MS
    Samir Shabazz, Philadelphia PA
    That’s all I could find. Systematic suppression of white votes was found in the Brown case. Total population of Noxubee is about 12k, whites are about 30% of that, so maybe a couple of thousand people were affected.
    The case against Shabazz was, IIRC, dismissed. Total impact there was some small number of voters declining to vote because Shabazz was palpably weird and hostile to them, and was carrying a club and so presented a threatening aspect.
    Notably, the successful case against Brown was pursued under the Voting Rights Act.

  186. russell- nice catch on the Noxubee case, never heard of that.
    Also, just noticed your 10:33am post: The law also does include language to address discrimination in the area of voting rights *on the basis of race or color* – any race or color – so as far as establishing the legal right of whites to vote, we’re all good.
    You mean that Brett’s objection is *entirely* based on their recognition of the secondary meaning of the word “minority”, and the law doesn’t actually carve out an exception specifically so white people can be discriminated against?
    And here I was thinking Brett had some sort of principled objection. Silly me.

  187. It is funny that Brett thinks white people have no redress under the law because the Voting Rights Act doesn’t define them as a minority. And that the actual history of voter suppression provides no context as to why a law prohibiting voter suppression was written the way it was. So he can feel oppressed.

  188. You mean that Brett’s objection is *entirely* based on their recognition of the secondary meaning of the word “minority”, and the law doesn’t actually carve out an exception specifically so white people can be discriminated against?
    I’m hard pressed to speak for Brett.
    As best I can make out, Sensenbrenner’s bill is trying to establish better metrics for determining if voter suppression is going on in a given locale.
    That’s relevant because section 4 of the original Voting Rights Act gave certain formulas for identifying problem locales, and those criteria were found deficient by the SCOTUS in Shelby County v Holder.
    Brett is correct that Sensenbrenner’s language looks for less-than-expected voter turnouts for non-white populations (characterized, not necessarily accurately as you note, as “minorities”), rather than *any* population which can be defined by race or skin color.
    So, if there was a history of widespread and systematic suppression of white voters in some area, based on their race, Brett’s concern might have some merit in the real world.
    So far we’ve identified one, in one county of MS, comprising as many as a couple of thousand white voters. Unclear what the duration of the suppression effort was.
    The reason Sensenbrenner’s bill looks for under-representation of non-whites is because those are the folks who have, historically, been harmed.
    And, they – along with other demographics who tend to vote (D) – are the ones being harmed by the new and improved voter suppression bullcrap that is being trotted out in the wake of Shelby County.

  189. It is funny that Brett thinks white people have no redress under the law
    Brett needs to read the 15th Amendment, it will put his mind at ease.

  190. 15th Amendment? Isn’t that

    A well regulated Militia, being necessary to the security of a free State, the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

    I can never remember which one it is that has that useless ‘militia’ bit on the front that doesn’t mean anything at all.
    I keed, I keed.

  191. Shelby County v Holder
    I, for one, would appreciate one of our conservative commenters explaining to the peanut gallery how this decision, crafted by a Republican majority on the Court comports in any way with “originalism”, and if not, to provide us with spirited defense of its “process”.
    I’d ask the same about Bush v. Gore, but apparently that one was a one-off to which the tradition of stare decisis does not apply.
    I appreciate Carlton’s map above, and have sent my usual 6 votes to be cast by proxy by an illegal alien in Texas in hopes that the actual racial majority will express its political power at the ballot box.

  192. “Because the specific cases the law is intended to address are cases of white people preventing non-white people from voting.”
    If the law is only intended to address voting rights violations against non-whites, and not whites, if it is going to treat whites differently from every other race, (And it explicitly does.) then I say, screw it. Let it die a well deserved death.

  193. “Because the specific cases the law is intended to address are cases of white people preventing non-white people from voting.”

    If the law is only intended to address voting rights violations against non-whites, and not whites…
    Well, the law *protects* everyone. The law *exists* because of the history of voter suppression against non-whites. Im not sure if you’re asking that this history be ignored or made to not exist…
    Although I suspect that you could find an endless series of ‘concerns’ about such a law, regardless of how it was amended. I mean, you made quite the fuss over the word “minority” as if you didn’t understand its meaning, that just screams “I really want to endorse this law”.
    …then I say, screw it. Let it die a well deserved death.
    Yes, Im sure that you were chomping at the bit to support such a law, and are *so* sad that you’ve been forced to pray for it to die. Because you love freedom and civil rights so very much, I don’t see how anyone could doubt your commitment to them.
    So much more than us liberals, who only want to sully the name of freedom by making sure everyone gets to vote. Even people voting for Democrats! And that’s anti-freedom, so protecting their right to vote is basically totalitarian.

  194. “Tell me, why should whites support a civil rights law they are explicitly excluded from benefiting from?” – Brett B
    “Injustice anywhere is a threat to justice everywhere.” -MLK

  195. … a moron marrying a non-moron, for want of a better word.
    My non-moron wife is reasonably happy in her mixed marriage, I’ll have you know.

    …you’d have to be a moron to believe that.

  196. “Injustice anywhere is a threat to justice everywhere.” -MLK
    Pretty nervy quote from somebody defending the law explicitly turning a blind eye to injustice somewhere, just because they figure there’s more injustice someplace else.

  197. Pretty nervy quote from somebody defending the law explicitly turning a blind eye to injustice somewhere, just because they figure there’s more injustice someplace else.
    You keep saying that the law does that, but the only evidence you’ve offered is that they define “minority” in one of the ways that everyone- including you- understand it.
    Could you maybe quote the part of the new proposal that ‘explicitly turns a blind eye to injustice’?
    [btw, totally love how “I figure” that non-white voter suppression is a bigger problem than white voter suppression, like it’s a speculation I just pulled out of my ass; but don’t get distracted, the question at hand is ‘where does the law explicitly turn a blind eye to discrimination against whites’].

  198. Also, just thinking that ironically, if Brett did come up with a genuinely discriminatory part of the law Id be all for fixing it and passing it. And Id hazard to guess that he would continue to find grounds for opposition. That is, he’s arguing a point that I think is incorrect, but if it were correct *Id* be the one wanting it fixed.
    So Ill add a second question for Brett if he’s interested: if you can find a part of the law that you think is discriminatory, how would you fix it, and would you support it wholeheartedly after your proposed fix?

  199. there’s a law called the American Indian Religious Freedom Act.
    It protects various aspects of traditional native American religious practice.
    It specifically calls out who can, and can not, be considered an “American Indian”. If you’re not in the club, the law doesn’t apply to you. You can’t, for instance, eat some peyote buttons without breaking the law.
    Clearly, this law is racist.

  200. One thing that came to mind on this issue is that back when the Senate usually had a short session and went away for a chunk of the year given transportation and other reasons, there was not the current opening for the Senate to continuously block appointments. They left town, was clearly in recess & if they weren’t filled, the President had a means to fill them.
    Now, the Recess Clause might seem obsolete because the original need seems not to be here any more. But, a charm of the Constitution is that we have a text that can adapt to new situations. And, use of ‘pro forma’ (fake) sessions is a new form of de facto recess and the clause rightly imho was used — with a quite bit of restraint I might add — for one of the same PURPOSES — when the Senate leaves, it serves as a check on a total blockage of the advise and consent power.
    Use of modern means to change the balance of power while claiming past history “compels” the President not to have a check … when the text very well can be interpreted to allow it (as competing briefs show, the text can be applied in more than one way reasonably enough — politics provides an appropriate means to see what way wins) … is too rich for me.

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