For those strange fools looking for von’s theory of Constitutional interpretation, it appears after the gap — originally written as a comment to this post by Professor Bainbridge (slightly edited below).
Professor Bainbridge writes:
Conservative[*} constitutional interpretation rests on a tripod: originalism, textualism, and traditionalism.
Textualism is relatively easy to understand: it means you apply the words of the text as written, as the dictionaries and knowledgeable folks of the time would define them. Traditionalism is also fairly easy to define, having its legal roots in the common law doctrine of stare decisis, whereby even an apparently erroneous past decision is entitled to respect. (I hasten to add that "traditionalism" is rightly a broader concept, for it is not limited to the judicial branch; rather, the traditions of the executive and legislature should also not be lightly discarded.)
But originalism — meant by Bainbridge, apparently, to mean original intent — is a cacophony. Whose original intent counts? Those of the legislators who proposed the Constitution and Amendments, and who also managed to record their thoughts? Those of the legislators who passed the Constitution or Amendment, but failed to record their thoughts? Those of the people who agreed to the Constitution or Amendments largely in silence? Why prefer the first category over the other two? Why prefer only certain voices (over others) in the first category? Why ignore the voices of those who now live, and are thereby forced to live under the rules of old?
It seems that this can, and should, be made simpler. The text governs unless it is ambiguous. If ambiguous, you look to the text’s traditional interpretation. The reach to intent should only come if the first two methods fail — and, should it comes to that, I see no reason to rank the unknowable intents of those gone to the more knowable intents of those living.
This does not make me a living Constitutionalist. Words do not live; yet, nor can they die. (That is their peculiar beauty.) If the words are ambiguous and the traditions are also without form, we must remember the simple truth: the Constitution and its Amendments were not written for us, the lawyers. Nor were they written for the dead, who do not endure to take pleasure in them. The Constitution and its Amendments were written for storeclerks and farmers — who struggle, day by day, to keep this fragile society alive. In this very rare circumstance, Judges use their modern prudence to fill the gap. That is our common law.*
______________
*And thus, I find intent — in the exceedingly rare cases where it is relevant — to ultimately rest in the tradition of the English common law.
The debate is less textualists v. non-textualists than literal v. purposive reading of the text.
Not being a follower of any of the Holy Writ schools, I get to start the inquiry with a completely different question: what were they trying to accomplish. The words are obviously very important, but are not an end in themselves — they are a means to an end. A federal republic built on Enlightenment principles. With a major recasting of the nature of the compact in 1868, when states had shown themselves incapable of providing sufficient respect to the rights of the individual.
Which is why any “tie” must go in favor of the rights of the individual, as against encroachments by the power of the state.
Tell me von: under vonian principles, was Dred Scott correctly decided? If not, why not?
“the Constitution and its Amendments were not written for us, the lawyers. Nor were they written for the dead, who do not endure to take pleasure in them. The Constitution and its Amendments were written for storeclerks and farmers — who struggle, day by day, to keep this fragile society alive.”
….and yet why do so many of the actual benefits of this constitution accrue, not to the noble “storeclerks and farmers” but instead to the corperation?
Is it within the consititutional intent of the framers to require the storeclerk, or the auto worker, for that matter, to trade his families health benefits for the sake of corporate profit?
ken: it’s because Harriet Miers hasn’t been confirmed yet. Michael Berube has seen the future, and it includes this:
Does anybody know whether any of the correspondance that the more prolific “fathers” had with their often very savvy wives have appeared in Supreme Court decisions? As compared to, say, the Federalist papers?
This is a loaded question, to be sure, but I’m not quite sure in what direction it’s pointed. It’s surely relevant that most people at that time accepted the argument that women didn’t need the right to vote because they could meaningfully sway the vote of their male relatives. So then, wouldn’t it seem important to someone of the Holy Writ school how a Founder argued political matters with the one person who, without having access to a vote herself, could claim some right to persuasion on the Founder’s vote?
(This is a curlicue on a line of jurisprudential argumentation I find problematic, in any case. If tomorrow we were to find secret diaries by Madison, Jefferson, Hamilton, and Adams, all stating inequivocably Ha-ha! With “individual rights” we conspyred to denote “protections from discontented poor people (& slaves & women &tc.) and faraway ‘sovereigns,'” the Constitution and its interpretations should not become moot overnight. I’m just curious if the above line of research into “intent” was ever pursued seriously by jurists.)
Thanks, Rilkfan. Don’t know how that happened.
Actually, most holy writ originalists agree that it’s the people who ratified the Constitution, rather than those who drafted it, whose understanding of what it means controls–it’s the ratification by a supermajority that gives it it’s legitimacy. Public debates like the Federalist Papers are more relevant to what the ratifiers thought than private correspondence. (And the actual ratifiers are too numerous, too anonymous and too dead to ask them, so….)
That the vaunted supermajority excluded most of the damn country does not escape me–I think the democratic legitimacy argument for Scalia-style originalism is one of the dumbest of a bad lot. But it is simply not something that originalists take seriously in any way.
More about what I mean about a purposive reading as well as an explanation of the Katherinan Constitution.
Von:
1) how do you know when you’ve got a term of art such that a dictionary definition is not your best recourse?
2) how far do dictionaries really get us in Constitutional cases? “Cruel”, “unusual”, “free”, “speech,””unreasonable,” “due”, “process”, “life”, “liberty”, “property”, “establishment”, “free”, “exercise”–have these really changed dictionary definitions much since 1789?
3) how do you know when the text is ambiguous? I believe it is very often ambiguous, and that Scalia and Thomas make false claims of certainty; Sebastian believes it is not ambiguous often and that Brennan and Marshall made false claims of ambiguity. “Original understanding” is a method of interpretation which leads to a conclusion that the text is almost never ambiguous, because the entire penal code etc. has been written in next to it in invisible ink in a way–if it was legal then it’s constititional now.
4) When you say “the text’s traditional interpretation” do you mean “the text’s traditional application”? If so: application involves questions of law and questions of fact. What if they came out a certain way because of factual or quasi-factual determinations but either the facts or our understanding of them have changed? What if a government-funded attorney wasn’t necessary for a fair trial then but is now? What if judges once thought that women weren’t covered by the 14th amendment not because of any arcane 1870s definition of “equal” “protection” or “persons”, but because it was contrary to the divine ordinance, but we now recognize that 1) that’s sexist crap, and 2) we don’t hire Supreme Court justices to tell us what the divine ordinance is. What if we once thought that homosexuality was a choice and now see that it is not? What amount of evidence does it take that separate is not equal, was not meant to be equal, never was and never will be equal, before we are allowed to overturn Plessy?
5) Assuming you think that looking at the debate as literal v. purposive reading actually describes our disagreement–how would you respond to the argument that the text of the Ninth Amendment mandates a purposive reading?
Word games bore me.
Odd; they interest me.
You shoulda been a lawyer, then.
frm is a prose person – no, a newspaper modulo the comics and crossword and op-eds person. I blame such people for my exile in a lab.
Thanks, Katherine, for the brief explanation.
My first draft of that comment got pedantic about etymology. For fun, here’s my remembered version of Samuel Johnson’s definition of “oats”: A Grain, that in England is fed to horses and that in Scotland is fed to people.
That one’s a staple of Freshman Composition ’round here. The moral being: the OED is beyond great, and yet consulting its accumulated wisdom makes most of us conscious of being somewhat subpar as historians. Also fun: the etymological wanderings of “hussy.”
CharlieCarp, Dred Scott was incorrectly decided on two grounds: First, the choice of Missouri law when Dred Scott was in Illinois was incorrect (I don’t have time to get into all the reasons why I think that this morning). Dred Scott became free the moment that the law made him so. Second, the Constitution of 1857 did not provide, as Taney held, that African Americans were not citizens; at most, it provided that slaves were not citizens.
Katherine & Charlie, I agree that you look to the purpose of a document in choosing among definitions. But the approach you advocate would asks judges to ignore the text in favor of their preferred purpose.
“But the approach you advocate would asks judges to ignore the text in favor of their preferred purpose.”
“Ignore” is a little strong, isn’t it. You list three, why can’t a range of tools be used in interpretation?
I thought Katherine’s 1st comment was succinct.
I would like to add a variant to traditionalism or purposive. I don’t understand why the Court and interpretation has to be entirely apolitical, and why a consensus of informed (or even uninformed) interpretation cannot be taken into account, if not dominant.
I think this would more often act as a restraint on outlandish or impractical originalist or textualist interpretations than it would allow destabilizing purposive ones. It has the effect of providing legitimacy when and from where it actually counts. And where there is no consensus, it becomes irrelevant. There was, at best, a weak consensus on Roe.
There are way too many crazed “slippery slope” arguments floating around the Constitutional Theory community.
I agree with a lot of this basic statement for applying the constitution, but where it’s off somewhat is in its pretense that the statement actually provides much guidance for the knottier constitutional issues.
Of course you start with the language and rely on it when it provides the answer. The second point, original intent, is most often a restatement of the first point — view the words in context of how they were meant to be used, if that intent is discernible (which, as von notes, can be a weird problem in its own right). And stare decisis is fundamentally a political principle about the political aspect of judging, and a wise one. It doesn’t provide much help otherwise — consider this; what is the proper doctrine for when to ignore stare decisis? The principle fails to provide any guidance for this most important question, and the bottom line is that political or common sense notions most often affect when judges diverge from stare decisis.
But what makes Bainbridge’s analysis shallow is best revealed by this statement:
In this very rare circumstance [words are ambiguous and the traditions are also without form], Judges use their modern prudence to fill the gap.
Except that its not a very rare circumstance. The words themselves in so many important passages were intentionally vague. The US Supreme Court does not bother with the easy cases which don’t require “modern prudence to fill the gap.”
That’s why the guts of modern constitutional theory has to address this doctrinal question — Bainbridge seems to cease thinking with the phrase “modern prudence.” But that is typically when the problem first begins.
Myomyopedia:
originalism
original intent
n.
1. The actual aim or purpose esp. of the framers of the U.S. Constitution
2. Before the decision I dislike
I don’t know how to answer your critiques of my position when they’re that vague and you don’t answer my questions about yours…everyone does a purposive reading sometimes; you often have to to avoid nonsense, or when the literal reading just doesn’t get you anywhere. Purposive readings and “emanations and penumbras” are almost universally accepted in first amendment law for instance. Implied powers and powers “inherent in sovereignty” are also non-controversial. Chief Justice John Marshall certaintly did purposive reading; do you think Marbury and McCulloch were incorrectly decided? And as I said, I think much of the sentence-diagramming-and-1789-statute-books-and-dictionaries school of interpretation violates the Ninth Amendment.
I’m not asking a judge to ignore text, or to substitute his/her preferred purpose.
I’ll be interested in why you think a Missouri federal court asked to rule on whether a returned slave is free should not have looked at the law of Missouri. (For those of you who haven’t read the case recently, Scott had first pursued his claims in the courts of Missouri, losing in the Supreme Court of that state, which decided that, as a matter of Missouri law, Scott was a slave.) That Scott had been a couple of years in Illinois a decade before his suit was filed in Missouri resolves the choice of law issue for you?
What about the Fugitive Slave Acts? What about Article IV section 2 of the Constitution? Don’t both presuppose that a slave’s arrival on free soil didn’t irrevocably change his status?
(Of course, this wasn’t an issue in Indiana, because the 1851 constitution of that state barred African-Americans from setting foot in the state.)
(note also that one of the things you need to do is defend your idea about what the purpose in a clear way with clear evidence from a particular part or parts of the text. I don’t think you should do it at too high a level of generality, like “the purpose of the Constitution is to protect individual rights.”)
The 1816 constitution of Indiana did not bar African-Americans from setting foot in Indiana, but did deny them the right to vote. African-Americans, not slaves. In both the 1816 and 1851 constitutions (of which the latter was much more explicit).
The Supreme Court, and any other court, manages to do its worst, not when it is trying to balance the issues at hand, but when it is thinking about “Big Things” and leaves reason at the door.
Scott v. Sanford is one such case, deciding that people are property, even if it is illegal for them to be property in that state. The bookend is SANTA CLARA COUNTY v. SOUTHERN PAC. R. CO., 118 U.S. 394 (1886), which said that property can be people. It gave corporations, inventions of the state already, all of the rights of natural humans, and, as we learned from Plessey, more than African-Americans.
BTW, Chas Fried has a pretty good op ed in the Globe today.
He should only have added that unlike the lower courts, the S. Ct. chooses the cases it takes in order to explain the results and so guide the lower courts.
Where’s Sebastian on this Constitutional debate?
Here’s Sebastian, over at DeLong.
Wow, that is the first time I’ve ever gone into DeLong’s comments (unless he’s talking about Homer). Regardless of my disagreement with Seb on any number of issues, I don’t think calling a commenter out in a post is a very civil thing to do, regardless of provocation and the commenters certainly follow the lead. This is not calling out Anderson or Katherine (as usual, I agree with the points of their comments there), just suggesting that this, more than anything that takes place here, is piling on.
Wow, that is the first time I’ve ever gone into DeLong’s comments (unless he’s talking about Homer). Regardless of my disagreement with Seb on any number of issues, I don’t think calling a commenter out in a post is a very civil thing to do, regardless of provocation and the commenters certainly follow the lead. This is not calling out Anderson or Katherine (as usual, I agree with the points of their comments there), just suggesting that this, more than anything that takes place here, is piling on.
Wow, that is the first time I’ve ever gone into DeLong’s comments (unless he’s talking about Homer). Regardless of my disagreement with Seb on any number of issues, I don’t think calling a commenter out in a post is a very civil thing to do, regardless of provocation and the commenters certainly follow the lead. This is not calling out Anderson or Katherine (as usual, I agree with the points of their comments there), just suggesting that this, more than anything that takes place here, is piling on.
DeLong can be unnecessarily sharp, & Sebastian’s a good sport to play along.
ObWi: the Voice of Moderation. Really!
this, more than anything that takes place here, is piling on
LJ, I have no idea how the Delong thread could be construed as “piling on” Sebastian more than any of a dozen threads here have piled on Bird Dog. Now, I’ve agreed with those who did the piling on in nearly every instance, and I’m not really sure what complaint is being voiced here – if you say something in a public forum, you’re responsible for it, and you can be called on it, and called to defend it, at any time. If you can’t take the heat, you should probably stop setting the kitchen on fire.
ObWi: the Voice of Moderation. Really!
Was this meant ironically?
Moderation just isn’t what it was. In fact, it never was what it was.
I have no idea how the Delong thread could be construed as “piling on”
Well, I don’t think that extracting a comment from a thread and making it the topic of a post is, well, very nice. And I would suggest that people in the comments take their lead from the post, so when you see someone bringing up their long ago Drezner moderated bet about the term imminent, you are in ad hom territory. This is not to say that I agree with Sebastian’s arguments, and disparate arguments can be linked to one another, but what you have there is the gang picking on Sebastian, regardless how prickly his original comment may have been.
I admit to having a relatively bright line separating what goes on in the blog post with what people write in the comments, in that impulse control should be a bit more evident in the post, so I understand that YMMV. I also think that Chas has been piled on here as well, though I have argued that the responsibility is spread out much more widely than “those wacky liberals at ObWi”, and others have correctly pointed out that Chas (and to a lesser extent, the other Musketeers) provides an easy substitute target for those of us who are genuinely offended by actions of this administration.
At any rate, despite my high regard for DeLong, I think he is bullying here. I think calling out a commentor on the front page is perhaps acceptable if they have really made a nuisance of themselves, but on the basis of one comment is a bit of a hair trigger.
LJ, you’re right to a point, and if Sebastian didn’t want to bother with the post, he’d be perfectly right. And there would be a lot fewer comments I suspect, at least a lot fewer directed to him.
But he did participate, and he did advance positions that seemed to other commenters (& to me, tho I *think* I was a little more politic) to be ignoring criticisms in favor of simple repetition.
DeLong jumps into other commenters’ comments with his own bracketed remarks, and I wished Sebastian would’ve addressed DeLong’s citation of the Lord Mansfield decision outlawing slavery: judicial activism? permissible only in the absence of a written constitution? or just how the common law is supposed to work?
Anyway, if DeLong was being a jerk, the proper response is to quit commenting at DeLong’s. Certainly I’ve never been taken seriously over there—it’s a bit over my head most of the time (economics … numbers … wooooooh …).
Three thoughts:
1. I’m not ignoring your critiques, but I’ve been away on a Godawful business trip and now have more work than I can possibly accomplish in front of me. My apologies.
2. Katherine, you set forth a very general set of “purposeful” ideas, assert that my method of interpretation violates the 9th Amendment (huh?), and then accuse me of responding only in generalities. I provided the roadmap by which I try to read the Constitution. Is my roadmap perfect? No. Does it pretend to be all-inclusive? No. But it’s a far cry better than what you’ve provided: e.g., for starters, why not tell us where you intend to look to find the “purpose” of a particular Constitutional Amendment or clause.
3. Charlie, (a) assuming that the fugitive slave law was consitutional and applicable here, it’s not relevant (it was passed, IIRC, in 1850, after the period of Dredd’s residence in Wisconsin and Illinois). (b) The choice of law provision that I’m getting at is that which is set forth in the Missouri compromise (i.e., I’m not arguing exclusively for a restatement analysis). (c) Article IV Sec. 2 actually supports my position (note how it doesn’t distinguish based on race but based on status); (b) Incidentally, my arguments carried the day in the Missouri state courts.
All I have time for today. Sorry.
LJ, you’re right to a point, and if Sebastian didn’t want to bother with the post, he’d be perfectly right.
Kinda tough to ignore it when your name is posted on the front page. And when it is picked up by others (not saying that rilkefan is picking on Sebastian, just didn’t want him to get Farberesque on me)
DeLong jumps into other commenters’ comments with his own bracketed remarks
Yeah, does he often do that? I know fisking is a tried and true technique, but am I the only one who thinks that this is a bit like Chevy Chase making faces behind Jane Curtin on Weekend Update? (which is unfortunate, because I think they were good questions, and I suspect Seb ignored them because of the fisking aspect)
Anyway, if DeLong was being a jerk, the proper response is to quit commenting at DeLong’s.
Nah, everyone is a jerk at some point or other and everyone has their tender spots. That Seb apparently stung DeLong with his comment is pretty apparent (I don’t remember DeLong ever pulling a contrary comment and front paging it, though he does do that to other people’s blog posts. I do remember a previous post here, but this one is the way that I think a comment should be highlighted). You may be right, this might be light hearted banter, and it won’t be the first time I’ve tried to break up a fight where one wasn’t there. One never really knows, I guess.
BTW, anderson, surplusage is a very interesting word ;^)
Yeah, does he often do that?
That looked very weird to me. Substantively, I’m all with DeLong against SH on this argument, but inserting editorializing into someone else’s comments (especially given that they weren’t all that clearly set off from SH’s words) seems mindbogglingly rude to me. If I had any reputational presence in DeLong’s comments to cash in, I’d be commenting on it — as it is, I’m just going to think moderately ill of him.
(Pulling a comment up to the front page for rebuttal, on the other hand, doesn’t bother me at all. That looks to me like a respectful way of engaging an argument.)
I take this the same way, LB. Lt. Smash does approximately the same in his comments, where he inserts replies that are not central to the topic into the comments of others, only clearly set aside and signed. But these are all things Sebastian can take up with him, if Sebastian has objections.
BTW, anderson, surplusage is a very interesting word ;^)
Don’t scare me like that, LJ, I thought I used the wrong word or something. I take it you mean it exemplifies what it describes?
You sent me flying to Garner on legal usage:
“Surplusage” is a needless variant in all senses but the primarily legal one: “an excess or superabundance of words; a word, clause, or statement in an indictment, plea, or legal instrument that is not necessary to its adequacy, or in a statute that is merely redundant and insignificant.”