July 12, 2012

49% of likely voters want "strict legal interpretation" of the Constitution.

And only 21% think that's what we're getting. 60% think the Supreme Court is giving us the so-called "living" version of the document.
Male voters are more inclined to favor strict interpretation of the Constitution, while female voters prefer more legal flexibility and tend to see it as a living document. Most voters under 40 see the Constitution as a living document; most older voters think the Constitution should be strictly interpreted.
Why are women like younger folk and men like older folk? Strict/flexible — what's that about?

What, exactly, makes some people express beliefs in the value of flexibility — or is it "living" — and others in the value of strictness? It would be simplistic to think that women (and young people) are themselves loose and flexible, while men (and old people) are strict and inflexible, because we learn perhaps only what feelings superficially attract them and how they like to think about themselves. I'm tough and neutral/I'm nuanced and merciful. So you say.

Prompted by this forum discussion at Isthmus the other day, I (and Meade) took a quickie Myers-Briggs test. Interestingly, Meade and I got the same result. But I think the test is a bit absurd. The questions test how you think about yourself, not what you really are. Even if we were to accept that there are 4 dimensions of personality and only 2 ways to go within each dimension, you couldn't know where you really are. For example, in the 3d of the 4 dimensions, you can be "thinking" or "feeling." But I suspect the folks who ended up with "thinking" were at least as emotional in response to the relevant questions as those who got pegged as "feeling." What makes a person say yes to "You trust reason rather than feeling"?

"Reason" sounds right... but what drives you to answer the way you think is right? How soberly and clearly have you analyzed where you have put your trust — really, as you live your life? Putting the question that way makes me think the more reason-based person is more likely to answer no to "You trust reason rather than feeling" than the person in the grip of impulsive emotion. Of course, I'm a reason guy! Yeah, and you believe in the strict legal interpretation of the Constitution. So you say. But can I watch you do it? Can I look into your brain, Justice Scalia, and see the reason-gears turn independently of emotion?

145 comments:

TMink said...

The Constitution is a living document. It can be amended. Otherwise it is stone cold dead and needs to be respected as a binding contract.

As if that will happen.

Trey

Matthew Sablan said...

As an INTJ, I can say I grossly dislike Myers-Briggs.

Chuck66 said...

If you don't have a strict interpretation of the constitution, then you don't have a constitution. And worse yet, you have 5 people on the SCUS that can act as dictators.

traditionalguy said...
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Ann Althouse said...

"My wife likes to say that it takes all of the personality types to make a complete person; and therefore we need each other."

I can do without that.

rhhardin said...

Lautreamont:

The feelings express happiness, make one smile. Analysis of the feelings expresses happiness, all personality aside; makes one smile. The former uplift the soul, dependent upon space, upon duration, up the conception of humanity considered as itself, in its celebrated constituents! The latter uplifts the soul, independently of duration and space, up to the conception of humanity considered in its highest expression, the will! The former are concerned with vices and virtues; the latter only with virtues. Feelings do not know their marching order. The analysis of feelings teaches how to reveal it, increases the strength of the feelings. With the former, all is uncertainty. They are the expression of happiness, grief, two extremes. With the latter, all is certainty. It is the expression of that happiness which results at a given moment from knowing how to restrain oneself in the midst of good or evil passions. It uses its calm to render the description of the passions down to a principle which flows through the pages: the non-existence of evil. The feelings weep when they must, as when they need not. Analysis of the feelings does not weep. It possesses a latent sensibility which catches one off guard, prevails over miseries, teaches how to dispense with a guide, provides a combat weapon. The feelings, sign of weakness, are not feeling! The analysis of feeling, sign of strength, generates the most magnificent feelings I know. The writer who is taken in by feelings must not be placed on a par with the writer who is taken in neither by feelings nor himself. Youth intends sentimental lucubrations. Maturity begins to reason without confusion. He was only feeling, he thinks. He used to let his sensations wander: now he gives them a pilot. If I liken humanity to a woman, I shall not expatiate upon her youth's being on the wane and the approach of her middle-age. Her mind changes for the better. Her ideal of poetry will change. Tragedies, poems, elegies will no longer take precedence. The coolness of the maxim shall prevail!

Poesies

Rose said...

It is dismaying to see the votes fall along party lines. If there is anywhere that partisanship should not rear its ugly head, it is in the Supreme Court, and in the justice's interpretation of the Constitutionality of a thing.

Disagreement is to be expected. But, Partisanship is going to be the death of us as a nation.

Sometimes, the decisions amount to sending an issue back to the legislative drawing board. But the party line votes since Bush v. Gore, while reflecting the polarization of the entire country, are deeply troubling, and lead to intense mistrust of the institution.

X said...

Melvin Udall answered this a while back

sykes.1 said...

The Constitution has been a dead letter ever since Marshall usurped the power to judge the constitutionality of legislation. That power is not in the Constitution, and no other Common Law country allowed it until very recently.

Presidents have been even more egregious in their usurpations. They now declare and wage wars without the consent of Congress; negotiate and ratify treaties without the approval of the Senate (SALT II); murder American citizens without trial, etc etc.

Then, of course, there is the original Constitution Convention. Sent to Philadelphia to modify the Articles of Confederation, the radicals threw out the Articles and draft a wholly new document. Perhaps a third of the attendees refused to sign it.

I think it is clear that most of our problems stem from the federal government itself. Every financial crisis since and including the Great Depression has its origins in federal actions. We really should abandon the Constitution and return to the Articles.

traditionalguy said...

OK, this is the right thread. I wouldn't worry about the perception of the questions and answers in a MB test being a mystery. The trick is catching trends and that comes as much from several other answers than from a single one.

The good thing is acceptance that other people can be different from us without being defective.

My wife says it takes all of the personality types together to make a complete person, and therefore we need each other. So we work at accepting othews and their talents, as iritating as some are.

My wife is an ENFJ, which makes that the best type of them all.

phx said...
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Lauderdale Vet said...

Perhaps I’m a curmudgeon, but I believe that you should abide by the laws you pass. If you don’t like them, change them. Choosing not to enforce it or reinterpreting it on the fly should not be available options.

Ken said...

Ann,

Why are women like younger folk and men like older folk? Strict/flexible — what's that about?

Women live in a fantasy world where men have wonderful, free lives and women have oppressed lives (oppressed by men of course). What is left unexplained is how working for a living is somehow fulfilling and that having the government take from those who work for a living to give to those who want to be fulfilled is any way moral or uplifting.

Women and young people let adult men deal with the real world so they don't have to. This allows them to inhabit an unreal world where food simply appears in the cupboard and electricity magically turns on lights. Women and young people inhabit a world where adult men work their ass off providing all these things. Since women and young people don't work that hard, but still get all the benefits of these things, they assume it doesn't take much effort to get these things. This is the only way to morally justify taking from providers and giving to parasites.

Anything in reality that might not jibe with this fantasy is termed "strict". Being "flexible" means ignoring the objective reality around you, while being "strict" means you understand the objective reality around you and know the calamity waiting for you if you ignore that objective reality.

Michael K said...

"Disagreement is to be expected. But, Partisanship is going to be the death of us as a nation."

Your statement assumes that the two sides are equally reasonable and objective. What is objective about an ideology that is willing to spend a nation into bankruptcy so that the political class can fool voters into keeping them in office ?

Is bankruptcy the death of a nation ? Only one side seems to be concerned about it.

Smith said...

I can do without that.

Of course.

phx said...
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X said...

When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.

phx said...
This comment has been removed by the author.
bgates said...

I think we can work out a compromise on the Constitution.

Let's read the 19th Amendment, "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 sex", as saying voting rights cannot be restricted based on the frequency with which one engages in intercourse.

Then take a clever approach to the 26th, "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age", and say that the phrase "citizens...who are eighteen years of age or older" clearly refers to those citizens who were eighteen or older on the date the Amendment was ratified, July 1 1971.

Those two nuanced and flexible interpretations would clear the way to restrict the franchise to males over the age of 30, which would herald a new Golden Age.

Bob Ellison said...

Can I look into your brain, Justice Scalia, and see the reason-gears turn independently of emotion?

See, this is where we go wrong. We try to analyze how and why people do the things they do. We have different levels of murder, hate crimes, racist intent, strategic voting, religious reasoning...

Judge not the intent, but the act. The act is specific; the intent is probably unknowable.

Balfegor said...

Yeah, and you believe in the strict legal interpretation of the Constitution. So you say. But can I watch you do it? Can I look into your brain, Justice Scalia, and see the reason-gears turn independently of emotion?

I think that's obviously impossible -- the question is whether the interpretative approach one is taking subjects one to sufficient constraint, sufficient discipline, to override private emotion and private prejudice. Textualism and originalism aren't complete constraints, obviously, but the perception is that they're more rigorous, less malleable constraints than the "living" alternative. And I think that's right. That's why we write laws down with words, after all.

Ann Althouse said...

"Judge not the intent, but the act. The act is specific; the intent is probably unknowable."

Ironic in the context of expecting judges to follow the intent of the framers.

Saint Croix said...

Strict/flexible — what's that about?

Strict is mean and flexible is nice. Women and young people vote for "flexible" because they want to be nice. The word "strict" is negative and harsh. We don't want harsh, strict, mean people in the government, telling us what our law is.

This poll question, like many poll questions, is sloppy.

For instance, you could put the question this way. "The 13th Amendment outlaws slavery. Do you think we should follow this Amendment strictly? Or do you think there are some situations where we need to be flexible about slavery?"

That question answers itself.

The way this question is phrased is like William Brennan's jurisprudence. It's full of "magnificent generalities" (a.k.a. vague shit that means whatever and whatever).

Or you could try the question this way: Do you think judges should follow what the Constitution says, even if they are unhappy with the result in a specific case? Or do you think judges should rewrite the Constitution until they get a result that seems right?

Robert said...
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Ann Althouse said...

"I think that's obviously impossible -- the question is whether the interpretative approach one is taking subjects one to sufficient constraint, sufficient discipline, to override private emotion and private prejudice. Textualism and originalism aren't complete constraints, obviously, but the perception is that they're more rigorous, less malleable constraints than the "living" alternative. And I think that's right. That's why we write laws down with words, after all."

That's the way Justice Scalia would answer. It is a constraint to believe and profess that you believe in this method, even if you know it is impossible.

If you restate what the method is so that it accommodates what a human being in fact will have to do, then you've validated the thing that you're supposed to try not to do, and your failure will be even farther off the mark.

(And I doubt even that there is a mark.)

Robert said...

Here's a good explanation of why Myers-Briggs is bullshit: "every dimension is binary, not continuous and normally distributed. If this were true, we would expect to find a bimodal statistical distribution (two peaks, little overlap between the two clusters). But when we look at actual empirical data, we tend to find a normal distribution. [Myers-Briggs] chops the bell curve in two right down the middle, so people who are very close can be assigned opposite categories. Since this is true of all four categories, two people who have almost identical personalities, but happen to fall on either side of the big dividing line, can actually get opposite scores."

Paul Zrimsek said...

How did the judicial philosophy which led to Roe v Wade being set up as a litmus test ever get to be associated, in anyone's mind, with flexibility?

Saint Croix said...

Ironic in the context of expecting judges to follow the intent of the framers.

Scalia wrote an entire book on this point.

"We look for a sort of objectified intent--the intent that a reasonable person would gather from the text of a law."

You're not mind-reading, you're text-reading.

The Brennan school is notable for deconstruction, tearing words apart, which of course when judges do it, they are deconstructing our laws. This is why process is substance and person is property. Playing games with language is how fascists operate.

Rusty said...

Ann Althouse said...
"Judge not the intent, but the act. The act is specific; the intent is probably unknowable."

Ironic in the context of expecting judges to follow the intent of the framers.



Then when in doubt go with what the document says.
Shall not doesn't mean maybe.

Paco Wové said...

"an ideology that is willing to spend a nation into bankruptcy so that the political class can fool voters into keeping them in office"

The problem is that this description could apply to both major parties over the last few decades.

Valentine Smith said...

As old as War of the Sexes itself—civis vs cultus—Apollo overcomes Dionysus, civilization over the tribe, ties of oath against blood ties, the Law tames Love, Aeneas dumps Dido.

Every revolution starts as Dionysian disorder destroying the Old Law before morphing into a New Order of Appolonian Oppression. An Emma Goldman ALWAYS gives way to a Joe Stalin.

Except for the American Revolution. The US Constitution is predicated on Natural Law, i.e. God.

Women, while apparently the antithesis, always provoke the ultimate synthesis. As an example, it was actually the women of Chile who brought down Allende, not the dread Pinochet.

Saint Croix said...

How did the judicial philosophy which led to Roe v Wade being set up as a litmus test ever get to be associated, in anyone's mind, with flexibility?

Because a baby is a baby if you want her to be a baby, and she's nothing if you want her to be nothing. They are very flexible on this point.

Of course it's like being open-minded on the Nazi question.

Our society thinks that people should be open-minded and flexible. We are hostile to the close-minded and the rigid. This is quite stupid and sloppy, which is obvious as soon as we test it.

phx said...
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edutcher said...

The yoots prefer the Woody Wilson slant because that's what they got in public school.

As you get older and get screwed a few times because somebody took advantage of the loopholes, you begin to appreciate the value of an iron-clad contract.

Women and yoots think the living version can be finessed to fit the situation and that's a good thing. They don't realize that, if it can be finessed one way that helps, it can be finessed another that hurts.

Reason vs emotion.

Holmes said...

http://www.amazon.com/The-Prodigal-God-Recovering-Christian/dp/0525950796

As Tim Keller writes, there are basically two types of people: Elder Sons and Young (or Prodigal) Sons.

Elder sons are the rule-keepers. They are proud of that. (Name the party/ideological affiliation)

Younger sons are rebellious. The rule-breakers and nonconformists. (Name that party/ideological affilation)

Both are unrighteous. -libertarians/Jesus

Robert Cook said...

Who says what a (or the) "strict legal interpretation" is?

When there are arguments as to whether the 1st Amendment does or does not erect a wall of separation between church and state; whether the 2nd Amendment provided unlimited right to Americans to bear arms or whether its refernece to the need for a "well-regulate milita" provides a limit on the degree to which and the circumstances under which we may arm ourselves, (and were many consider even the requirement that purchasers of firearms register their weapons as an infringment on their freedom to bear arms); whether the 8th Amendment's prohibition against "cruel and unusual punishment" applies only to persons convicted of crimes in courts of law, (Scalia) or whether it applies to all persons held in detention by the authorities, (all sane people), how can anyone claim there is an easily discernible interpetation that stands above all others?

I don't suggest the Constitution is infinitely elastic, but only that it is simplistic to assume that the application of the Constituion's language to a myriad of latter-day legal issues can ever be straightforward, uncontroversial, or impervious to dissenting opinion.

Bender said...

Anything capable of living is capable of dying.

And it is quite clear that what we have now is a Dying Constitution, not a living one.

Fen said...

It would be simplistic to think that women (and young people) are themselves loose and flexible, while men (and old people) are strict and inflexible,

Yes, that would as simplistic as asking why single women raise boys to become thugs.

Robert Cook said...

"Your statement assumes that the two sides are equally reasonable and objective. What is objective about an ideology that is willing to spend a nation into bankruptcy so that the political class can fool voters into keeping them in office?"

Your statement assumes there is one party "willing to spend a nation into bankruptcy" and another, not.

Your assumption is erroneous.

Fen said...

When there are arguments as to whether the 1st Amendment does or does not erect a wall of separation between church and state

Those words aren't in the 1st. And it was actually meant to protect religion FROM the State.

whether the 2nd Amendment provided unlimited right to Americans to bear arms or whether its refernece to the need for a "well-regulate milita" provides a limit on the degree to which and the circumstances under which we may arm ourselves

"well-regulated" did not mean government oversight, it meant "ordered, effiecient, funtioning properly".

As for "militia", the intent was to provide self-defense against tyranny. How can you defend yourself from the National Guard if you have to be in it to possess a weapon?

Saint Croix said...

It is a constraint to believe and profess that you believe in this method, even if you know it is impossible.

Oh bullshit! I know what a person is. So do you, Althouse.

The liberals who deny what a person is--and deny their ability to define the word--can go fuck themselves. It's absolutely infuriating to hear so-called liberals deny humanity.

This is the Nazi question. This is the slavery question. If you get this question wrong, you fuck up big time.

The Supreme Court has so screwed the pooch on this, that even in Carhart, when the baby is outside the womb, and thus not only a person but a fucking citizen, those unelected assholes are still debating whether there is a constitution right to inject poison into her neck.

I have no patience for this utter dishonesty. You don't know what a person is? Oh, well, can I define Justice Breyer as a sub-human? Do I have a right to terminate him? Why or why not? Since you don't know what the word means and have no definition for us!

Saint Croix said...

Yeah, that was a little hot-tempered. Sorry.

Defining corporations as persons is atextual, too. Conservatives can and do play these legal games. But words have meanings and laws have very powerful consequences. Denying humanity is a very basic no-no, as far as I'm concerned. Stripping somebody of all rights, in order to make them disappear. There's just nothing liberal or democratic about that.

Robert Cook said...

"Those words aren't in the 1st. And it was actually meant to protect religion FROM the State."

That's your interpretation. Even assuming for discussion that was the only intent of the amendment, (and not also to protect citizens from the imposition of religious tyranny), there are those who insist that the wall of separation betwen church and state is a requirement to insure protection of religion from the state.

Michael K said...

"I think it's self-serving to say such a thing, that my side is the reasonable and objective one. Reasonable and objective people as far as I can tell dispute this."

I doubt it. Did you note that I did not describe the situation as "my side" or "the other side" ? Both parties have contributed to the political class and its pathology. The party is almost over. Which party is talking about solutions and which party is pretending that nothing will ever change ?

The party that is talking about solutions is the tea party, not the one you thought I was talking about. There is something going on that resembles a heroin addict. The addict denies there is a problem and talks about everything else. "War on women." "Gay marriage." "Social Justice."

Maybe it's time to read this again.

Never has there been so little diversity within America's upper crust. Always, in America as elsewhere, some people have been wealthier and more powerful than others. But until our own time America's upper crust was a mixture of people who had gained prominence in a variety of ways, who drew their money and status from different sources and were not predictably of one mind on any given matter. The Boston Brahmins, the New York financiers, the land barons of California, Texas, and Florida, the industrialists of Pittsburgh, the Southern aristocracy, and the hardscrabble politicians who made it big in Chicago or Memphis had little contact with one another. Few had much contact with government, and "bureaucrat" was a dirty word for all. So was "social engineering." Nor had the schools and universities that formed yesterday's upper crust imposed a single orthodoxy about the origins of man, about American history, and about how America should be governed. All that has changed.

Today's ruling class, from Boston to San Diego, was formed by an educational system that exposed them to the same ideas and gave them remarkably uniform guidance, as well as tastes and habits. These amount to a social canon of judgments about good and evil, complete with secular sacred history, sins (against minorities and the environment), and saints. Using the right words and avoiding the wrong ones when referring to such matters -- speaking the "in" language -- serves as a badge of identity. Regardless of what business or profession they are in, their road up included government channels and government money because, as government has grown, its boundary with the rest of American life has become indistinct. Many began their careers in government and leveraged their way into the private sector. Some, e.g., Secretary of the Treasury Timothy Geithner, never held a non-government job. Hence whether formally in government, out of it, or halfway, America's ruling class speaks the language and has the tastes, habits, and tools of bureaucrats. It rules uneasily over the majority of Americans not oriented to government.

The two classes have less in common culturally, dislike each other more, and embody ways of life more different from one another than did the 19th century's Northerners and Southerners -- nearly all of whom, as Lincoln reminded them, "prayed to the same God." By contrast, while most Americans pray to the God "who created and doth sustain us," our ruling class prays to itself as "saviors of the planet" and improvers of humanity. Our classes' clash is over "whose country" America is, over what way of life will prevail, over who is to defer to whom about what. The gravity of such divisions points us, as it did Lincoln, to Mark's Gospel: "if a house be divided against itself, that house cannot stand."

Robert Cook said...

"'well-regulated' did not mean government oversight, it meant 'ordered, effiecient, funtioning properly.'"

Says who? "Those words aren't in (the 2nd Amendment)."

rhhardin said...

Because a baby is a baby if you want her to be a baby, and she's nothing if you want her to be nothing. They are very flexible on this point.

That's actually true, though, applied to a fetus, which is human but not a human.

The language grew to express distinctions that were of interest.

Being a human depends on having relations to others; and if you are a wanted fetus, with nursery planned and sports equipment bought, you have those relations by way of your parents.

At birth society itself takes up relations with you.

I've always though that the argument would be easier, not harder, by way of having a soul.
Whatever theological additions are made, at bottom it expresses having relations to others, which then derivatively gets a theological use if the religion has a use for it.

A quibble with @Saint Croix on deconstruction, which originally is more respectful of the text and intention than its modern imitations. It becomes possible only with really good texts, so good that for example the implications of the text interact with its own composition.

Alan said...

"49% of likely voters want "strict legal interpretation" of the Constitution."

The other 51% are lawless.

Fen said...

"well-regulated" did not mean government oversight, it meant "ordered, effiecient, funtioning properly."

Cook: Says who?

Multiple dictionaries. Google it:

http://constitution.org/cons/wellregu.htm

The following are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment:

1709: "If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations."

1714: "The practice of all well-regulated courts of justice in the world."

1812: "The equation of time ... is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial."

1848: "A remissness for which I am sure every well-regulated person will blame the Mayor."

1862: "It appeared to her well-regulated mind, like a clandestine proceeding."

1894: "The newspaper, a never wanting adjunct to every well-regulated American embryo city."

The phrase "well-regulated" was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected. Establishing government oversight of the people's arms was not only not the intent in using the phrase in the 2nd amendment, it was precisely to render the government powerless to do so that the founders wrote it.

Dante said...

What does it mean to have a living constitution? I don't understand it. I thought judges were there to interpret, not make, law. I thought law was meant to come from the congress.

Fen said...

Those words aren't in the 1st. And it was actually meant to protect religion FROM the State.

Cook: "That's your interpretation."

No, its a fact that "separation of Church and State" does not appear anywhere in the 1st. Have you actually read it?

TMink said...

INFP here, and the MBTI is a fun and useful little test. It is widely used in relationships and team building. What I like about it is that it gives people some feedback about their personailty without any pathologizing.

So you guys are ENTP?

Trey

AllieOop said...

ESFJ, surprise, surprise, not.

rhhardin said...

A living Constitution is like a living bra.

You feel stirrings but get used to them.

Bender said...

I think it fairly safe to conclude that the writers and ratifiers of the Second Amendment knew that it was an act of gun control that started the Revolutionary War, and that the militia, i.e. able-bodied men, had been called out in arms in Lexington and Concord precisely to confront and stop the then-lawful government from interfering with their storage of arms.

The established government of the time may have considered such to be a criminal act and treason against King George, but the writers and ratifiers of the Constitution knew it to be their natural right to possess the means (arms) to overthrow such government.

rhhardin said...

Where does Sagittarius come out on this test.

Saint Croix said...

As deconstruction works its way through literature and law and art, like a bunch of fucking termites (how's that for dehumanization!), I ask the deconstructionists why do they bother? After all, language cannot be understood! And yet you talk, talk, talk.

Sometimes these scholars actually do not want to be understood. They write to hide their thoughts, because their thoughts are quite stupid. So they avoid clarity and go for density.

But Althouse expresses herself quite clearly. Over and over she says what she means. "Bullshit!" is a famous Althousian expression. That is quite clear, is it not? And yet a deconstructionist can play games and say "I do not know what you mean by this bullshit, why are we now discussing feces in a field?" But that is semantical bullshit. Because her meaning is clear and the deconstructionist is playing games.

Althouse is not a deconstructionist when it comes to her own work. She is quite confident that we know what she means. And she's irritable when we do not understand!

Of course it's possible that she is misunderstood--and misunderstandings are always possible, especially among lazy readers. Nonetheless she has this bizarre confidence that words will resolve it. Words! I will speak to you with words and you will understand what I say!

How bizarre for a deconstructionist who denies the very possibility of understanding to keep talking to us?

No, sorry, Althosue champions deconstruction in a particular context, the work of the Supreme Court, because she dislikes what the Constitution has to say on certain points and would rather it say something else.

Bender said...

And it was actually meant to protect religion FROM the State

Again, it is safe to conclude that the writers and ratifiers of the First Amendment knew that it was because of religious oppression by government that most of the colonies were established in the first place, that people came to these shores precisely to keep the national government from interfering with their religion.

But notice I said national government. At the time of passage of the First Amendment, there were, in fact, many state establishments of religion, and the Amendment was intended to prevent Congress, i.e. the national government, from interfering with those establishments. If a person in one state did not like the established religion there, he was always free to move to some other state that he agreed with.

Balfegor said...

Re: Althouse:

If you restate what the method is so that it accommodates what a human being in fact will have to do, then you've validated the thing that you're supposed to try not to do, and your failure will be even farther off the mark.

I don't know that it's "validating," but if I grasp your basic point correctly, I do agree that consciously acknowledging the limitations of the constraint gives a judge extra maneuvering room to navigate around the constraint entirely (even if only unconsciously). And that's a bad thing by my lights, as a citizen. But what's the solution? Stupider judges? Stupider lawyers? More mediocrities?

There might be other, better ways of constraining judges' prejudices on the bench. And there's really nothing that could practically constrain a Holmesian "bad judge" as it were, at the point of decision. Impeachment and reversal are partial constraints, but the one is political and the other just defers the problem to another judge. But I don't know of any alternative (well, other than absolute rules like all accused criminals = guilty, sentence = statutory maximum, which have their own obvious drawbacks.) To have judges embrace an ethic of restrictive textualism/originalism seems to me the best approach.

bagoh20 said...

The results of the test described me almost perfectly except for a few things INTJ. I guess it would though since they were asking me.

We also know the acts of the founders: Revolution, including committing and risking death in response to over-reaching government and taxation far short of what we have today. They too would call a penalty a tax and then also call it unconstitutional.

Simon said...

I'm with Justice Scalia—I'm not a strict constructionist and no one ought to be. The Constitution was adopted in a context, in the Anglo-American legal tradition. It should be construed as such a document should be construed in that tradition—reasonably. The tea party's fundamentalist protestant approach to the text makes no sense, and if a "strict" approach is one that is even less willing to understand the text in context, it is even stupider. What would a strict constructionist do with a case like Wilson v. Arkansas? United States v. Ramsey? The Constitution's individual provisions subsume the presuppositions that were fired into them; that which the parts contain are as binding as the parts comprising them, and the contiguous whole is as binding as the parts of which it's composed.

It seems to me that the correct approach, the one that best-comports with our legal tradition, is the one that judge Easterbrook called "legalism"—a heady brew of textualism, originalism, and legal process.

rhhardin said...

Deconstruction:

I remember an essay on an essay of Freud, Freud's essay being about a grandson who played a game with a spool on a string. He'd throw it away and say "away," and pull it back and say "here." He'd repeat this over and over.

Freud wondered what he was really doing. Freud threw out this speculation, no, threw out another speculation, no, and continued.

A deconstruction notices that Freud is unawares imitating the grandson.

That's more valuable and interesting than any of Freud's speculations, but is possible only because Freud is such a careful author, and follows the literary forces acting on him.

The forces are the deconstructionist's subject.

Far from denying meaning, but tracing something just outside the author's control.

Simon said...

Indeed, what's funny here is that many of those who claim to want a "strict" reading of the Constitution are the same people who have faulted the Chief Justice for failing to invent an atextual limit on the tax power, a doctrinal fence to limit the feds' power to do by coercion what they can't do outright. I think that should have been done, but it can't by any means be called "strict construction." These people don't have a clue what they want. They meander through a dense fog of meaningless buzzwords without the slightest idea what they mean.

Old Dad said...

Set aside the problems of epistemology--that way postmodern madness lies. Most of us agree that our language at least bears some witness to our intent, however delusional that may be. It follows, then, that only by a close reading of that language can we even hope to understand even a glimmer of the intent of the speaker. Reason, and a dedication to essential justice requires this. Elsewise, language and politics devolves into a mere contest of wills.

There are time honored methods of textual explication that can lead to somewhat repeatable results that most would agree seem reasonable and just. Note that I don't insist that they are "true."

Give me a broadly accepted sense that the court is reasonable and just any day.

Simon said...

One does not need a JD to comment meaningfully on legal issues, but one does need a reasonable familiarity with the law. The populist mood is one of the most obnoxious features of the age. Populism: The theory that your cousin Barry who sends you those stupid conspiracy theory emails about kenyan births and RFID chips is every bit as well-qualified to comment on the federal reserve as a trained economist.

bagoh20 said...

""Bullshit!" is a famous Althousian expression."

And it's received about as well by the left as it's corollary: "You lie!"

They hate when you do that. Because they know you can prove it.

If you are telling the truth, you see being called a liar as an opportunity to explain and convince.

Simon said...

Old Dad said...
"Most of us agree that our language at least bears some witness to our intent, however delusional that may be. It follows, then, that only by a close reading of that language can we even hope to understand even a glimmer of the intent of the speaker."

But we are not looking for the intent of the legislature, because no such thing exists. Justice Holmes' famous aphorism captures it well: "We ask not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used. We do not inquire what the legislature meant; we ask only what the statutes mean." And this is where the need for construction (and the futility of "strictly" construing texts) becomes apparent, because the original intent (should it exist) is likely to be significantly more precise than the original meaning, which may be significantly more open to interpretation.

bagoh20 said...

"The theory that your cousin Barry who sends you those stupid conspiracy theory emails about kenyan births and RFID chips is every bit as well-qualified to comment on the federal reserve as a trained economist."

Yes, thank god we have the smart guys in there. Great job.

Cousin Barry, might talk a lot, but when it comes down to doing things, he generally knows the limits of his abilities better than the well-educated. He might be wise enough to actually admit it's over his head.

Synova said...

"Why are women like younger folk and men like older folk? Strict/flexible — what's that about?"

What strikes me the most is that in order to prefer the "living" version, you've got to somehow believe that you'll always be, as they say, on the right side of History.

Maybe men and old people have a better imagination when it comes to what could go wrong.

Or maybe it's an optimism/pessimism thing where one group sees the Constitution as designed to give you stuff (your rights, etc.,) and the other sees it as a guard against having what you were born with (inalienable rights) taken away by the will of a capricious majority.

As optimistic as I am, and I am, I still understand that I'm not and never will be the majority.

Simon said...

bagoh20, if someone receives an email that makes a shocking and amazing claim and their first thought is to forward it to everyone they know (rather than, say, to snopes it), I wouldn't say that they know the limits of their abilities terribly well.

bagoh20 said...

Populism is not the problem. The fact that many people hold some idea true does not make it false, unless your an elitist, and then you use a lot of words to try and do make it so.

Sometimes the masses are right and sometimes they are wrong. I think the populism of the Tea Party is a case where they are more right than they have been for decades. Unfortunately, it may be too late.

Old Dad said...

Justice Holmes employs a clever dodge that seeks to avoid one epistemological dead end, but he falls into it all the same. It's logocentrism, either way, which I applaud. If the search for meaning aside from authorial intent seems more reasonable and just, then I applaud it. In both cases, the assumption is that language contains content that can be shaped by the speaker and understood by the reader. Meaning is the other side of the same coin as intent.

Simon said...

Likewise, on legal issues. When someone demands conservative judges and is then outraged when their conservative judges behave like conservative judges, this tells me that the person hasn't the slightest clue what they're talking about. The "conservative" reaction to the Indiana Supreme Court's decision in Barnes v. Indiana, for example, which I wrote about in this, was absolutely mind-bogglingly stupid. Here was a ruling that could have come from Justice Rehnquist's pen, and the so-called conservative grassroots turn into a bunch of fucking Brennanites!

Robert Cook said...

"'Those words aren't in the 1st. And it was actually meant to protect religion FROM the State.'

"Cook: "'That's your interpretation.'"

"No, its a fact that 'separation of Church and State' does not appear anywhere in the 1st. Have you actually read it?"
?

Oy vey! The debate has never been whether those specific words appear in the 1st, the debate has to do with what those words mean, what the 1st Amendment is intended to do.

You assert the amendement is intended only to "protect religion FROM the state." But what, really, does that mean? And what about those who assert it is also to protect the people from religious tyranny? Do you think this is a figment of their imagination? Do you not imagine that religion backed by the imprimatur of the state can become a tyranny over the people, or that it cannot injure those who do not hold to religious orthodoxy, as defined by the state majority?

Rusty said...

Bob. Can I call you Bob? Bob.
Since there were religious states in the nascent united states,(Pennsylvania, Maryland it only made sense that it was to protect the states.

"Congress shall make no law respecting an establishment of religion, or respecting the free exercise thereof;"

Congress. Not the states.

Simon said...

Bagoh, I don't agree that it isn't a problem. So long as we don't live in a democracy, populism is a limited problem, but to the extent that our system has democratic elements, it is a problem. I have a complex relationship with the tea party. I welcome the energy they bring to the right, and I'm delighted that they have thrust discussion of constitutional issues back to the fore. I am dismayed, however, with the unbearably coarse tone of politics today, for which they (along with the loony left of the Bush administration era) are partially responsible, and disappointed in how shallow, idiosyncratic, blithe, ahistoric, unconservative, and protestant their understanding of the constitution is.

bagoh20 said...

Simon, The elites have email too, and unfortunately nearly all the power. When they skip Snopes, really bad shit happens.

The mistake is believing that any amount of education or status somehow makes you able to jump the chasm between what is manageable and what is not. At least the rubes don't try to jump it. They say: it's beyond me, just leave it alone. Getting in there will just screw things up.

In a way, it's genius.

Simon said...

Old Dad said...
"In both cases, the assumption is that language contains content that can be shaped by the speaker and understood by the reader. Meaning is the other side of the same coin as intent."

Yes, and that assumption is correct when speaker and listener are intelligent and educated people in the same tradition. The framers were not the ancient sumatrans, and we, despite the left's best efforts, remain connected to them by an organic tradition.

Simon said...

bagoh20 said...
"Simon, The elites have email too, and unfortunately nearly all the power. When they skip Snopes, really bad shit happens."

I have never received such an email from a law professor, judge, or attorney.

"At least the rubes don't try to jump it. They say: it's beyond me, just leave it alone. Getting in there will just screw things up."

No, that's the problem with populism—populism is when the people who reject the fact that there is a chasm try to lead society across it. Are there well-trained people who try to play pied piper, leading the people into the chasm deliberately? Sure. There are wilfull judges. There are stupid economists. I'm not saying that they're necessarily less dangerous.

Synova said...

"Being a human depends on having relations to others; and if you are a wanted fetus, with nursery planned and sports equipment bought, you have those relations by way of your parents."

This is horrific.

Turn it around and look at the back side of it.

"At birth society itself takes up relations with you."

What if it doesn't WANT to? What if your parent doesn't WANT to?

Nothing about birth creates this supposed human defining relationship. If society rejects you are you magically not a person?

People are very very good at defining which others are not-people. We're experts at this. The child of my enemy should have it's head bashed on a wall. Nits make lice. Does it matter to me that the slut with her bastard child starves?

Why, in what fantasy world, can we look at the relationship to *society* and agree that it is a right and good definition of personhood?

Gawd.

Saint Croix said...

That's actually true, though, applied to a fetus, which is human but not a human.

This "human but not a human" rhetoric is full blown in Carhart, as the baby is halfway outside the birth canal.

She's property. No, she's a person! She's a baby. No, she's a fetus! It's murder. No, it's a constitutional right!

Move her six inches and you're a murderer. Wonderful, rhardin. Hope you're right and it's okay to murder half a baby.

Being a human depends on having relations to others

So a dog is human? Thanks for clearing that up. Glad that dogs have constitutional rights now. You liberals are so nice!

Come to think of it, dogs, whales, fish and trees all have more legal protections than an unborn human baby. Liberals are humanizing the non-human while they dehumanize the human. And you defend this by saying that you can't understand fucking language. Awesome. And you claim to be the party of science. Hilarious.

bagoh20 said...

I doubt the founders would understand even 1/10th of the legal scholarship regarding their own writing.

It's wasn't intended to be difficult, it was intended to be accessible. They were were quite conscious of the kind insulating obfuscation the elites did with law and knowledge in the past, and they wanted none of that with this document.

I know this because Tom Cruise told me I was a spittoon washer during the Constitutional Convention.

Simon said...

Rusty said...
’Congress shall make no law respecting an establishment of religion, or respecting the free exercise thereof;’ Congress. Not the states.

This is a great example of the problems I've mentioned above. You're starting from a fundamentalist reading of the text rather than trying to understand what the original understanding of the text did and how subsequent changes in the law might bear on it. Sure, you're right: It says “Congress,” and it says “establishment.” Are you willing to accept, then, that neither the executive branch nor the courts can violate the establishment clause? Does establishment mean nothing more than expressly declaring a federal religion? Maybe. But you must think about those things. And what is the operation of the fourteenth amendment on the first? Does it matter whether one understands incorporation as happening by way of the privileges or immunities clause, as it actually does, or substantive due process, as the courts have held? Generations of very smart lawyers have been trying to understand this stuff for two centuries, but my goodness, here cometh the tea party, ready to swoop in and cut the gordion knot by the unprecedented innovation of reading the bloody text aloud and adding emphasis!

Thank goodness for amateurs! How could the bench and bar have been so confused all these years!

Palladian said...

The tea party's fundamentalist protestant approach to the text makes no sense

A Roman Catholic approach to the text doesn't make much sense either.

Simon said...

Bagoh, there's a George Burns roast joke in there, isn't there? :p

Robert Cook said...

"Since there were religious states in the nascent united states,(Pennsylvania, Maryland it only made sense that it was to protect the states."

This is your interpretation. Others differ.

So, who determines which is the "strict legal interpretation?"

Erika said...

I'm an INTJ (especially strong in thinking/judging), I'm 32 years old, I'm a woman, and I'm strongly disposed toward strict interpretation and rule of law. I stand out like a sore thumb among my friends of the same age/sex/educational level who are always wringing their hands about the oppressed and base their entire social/political paradigm on that notion. (Too much Howard Zinn in their formative years is my diagnosis.)

I tend to take the long view when it comes to the best solutions that humanity has come up with to address the questions of living among each other. I suppose that's why I converted to the Catholic church (two thousand years of the finest minds in Christendom was irresistible to me), why I am addicted to reading about history, why I believe that the Constitution was conceived by men formed by fine classical educations and well versed in the cream of political thought during the golden age of same. The Constitution as written is an extraordinary, exemplary, almost miraculous document, and I trust it (strictly interpreted) far more than I do the political thinking of modern baby boomers who spent their adolescent years smoking dope as opposed to reading Livy in Latin.

Put another way: I trust that the best minds in Western civilization have been working diligently to explore these political philosophy concepts of freedom, liberty, governance, and so on for the last two thousand years, culminating in our very own Constitution. I think we peaked, and now in our current age we have people attempting to redefine and reinterpret who are woefully unprepared to do so compared to their forebears. And they are unprepared both because their educations were inferior and because it is currently fashionable to emote rather than to think.

Simon said...

Palladian, what I mean by a "protestant" approach is one in which, for example, the text, the four corners of the text, are the only place one may look (except when it isn't); subsequent doctrinal exposition and context have absolutely no authority (except when they do); individual pieces of text must be taken freestanding (except when they may not be). In other words, I'm charging that the tea party reads the constitution in much the same way that protestants read the bible, not that it is skewed toward a theologically protestant bias. They believe that the text is perspicuous and can be interpreted without any reference to the tradition in which it was given and has subsequently been read. (From an epistemological perspctive, in effect, they create precisely the disjunction to which OldDad alluded earlier.)

Simon said...

bagoh20, what the founders did was to create law. That is Marbury's central point—the Constitution is real law. (If it wasn't, then absent a "judicial review" clause, there would be no judicial review.) And law is complex in its fine grained detail. It may be easy to state in the broad level of generality in which the Constitution is written, but as I said above, the whole comprises parts and presuppositions; that is why constitutional law is so much more complex than the constitution alone. One you unpack everything and rehydrate it, so to speak, there is an awful lot in there, and it is significantly more complex than the broad terms in which it presents itself.

rhhardin said...

This "human but not a human" rhetoric is full blown in Carhart, as the baby is halfway outside the birth canal.

She's property. No, she's a person! She's a baby. No, she's a fetus! It's murder. No, it's a constitutional right!

Move her six inches and you're a murderer. Wonderful, rhardin. Hope you're right and it's okay to murder half a baby.

Being a human depends on having relations to others

So a dog is human? Thanks for clearing that up. Glad that dogs have constitutional rights now. You liberals are so nice!

Come to think of it, dogs, whales, fish and trees all have more legal protections than an unborn human baby. Liberals are humanizing the non-human while they dehumanize the human. And you defend this by saying that you can't understand fucking language. Awesome. And you claim to be the party of science. Hilarious.


Nothing much changes from before birth to after birth, except society's interest in the matter replacing the parents'.

The best anti-abortion rhetoric relies on showing the fetus as cute, which more or less proves my point about having a relation being critical to the human versus a human status.

Dogs have the same fetus-puppy track, say you're puppy-proofing your house for a dog not yet on the ground, as thay say for the canine unborn; there's a wanted dog with relations.

That doesn't make them human, but the same events happen.

If you've ever raised a baby bird from featherless eyes-closed, it takes a couple of weeks before it develops what you'd call a personality. That's when it recognizes you across the room instead of just opening to vibration. Personality comes with relation.

Language follows that trajectory.

Marge Piercy has the abortion side, which is what you'd have to overcome in the public policy contest, taking the first google hit of the text.

I agree that it's no business of SCOTUS but of the states.

Synova said...

I think there is much to recommend a Protestant approach. Strictly! Not the emotional and thus "flexible" sort.

In any case, the fundamental Protestant idea is that every person is directly and individually responsible to God and individually dependent on the grace available through Christ.

Perhaps it's even a sort of spiritual selfishness, when it comes down to it. Arrogance, after a fashion. But if I have direct, personal, access to God, how can I even *conceive* myself a mere subject to a mere man? If each believer is a Saint, how can each person not be a king?

These assumptions change behavior and expectations. If I work, I expect to be secure in what I've produced and built. I do not expect or accept that someone else has first dibs on my labor.

Do you think there may be a reason that, economically, Protestant colonies in the New World ended up prosperous and Catholic colonies tended to end up poverty wracked sh*tholes?

bagoh20 said...

" it is significantly more complex than the broad terms in which it presents itself."

It is now, but that was created - some needed, but much not. Weather or not that serves us is the question, and by extension, the question of is continued adding of complexity an improvement.

The Tea Party and a lot of conservatives and libertarians are saying "no". It's creating law that the vast majority cannot decipher and that even the "experts" can't agree upon. Things like Marbury may be necessary basic decision that needed made, but my biggest problem with the ACA opinion by Roberts was that, in my opinion, it only further confused the issue and made people less sure of what the law is. That's an unmitigated bad thing to me. I think the primary purpose of the
SCOTUS is to clarify, not confuse.

The people don't need protection from their electoral choices, but they do need protection from them becoming indecipherable. They need to know what they are voting for.

If you think the rubes don't know what they are voting for, then we can either make it clearer or not let them vote.

Simon said...

Synova, again, my description is not to suggest that they read the text with a theologically protestant bias, but to say that they treat the text in the manner in which protestants treat scripture, and they read the text in the manner in which protestants—and especially fundamentalist protestants—read scripture. The contrast would be to the Catholic approach (which obviously I think is correct as applied to either text, and, indeed, to any authoritative text), which reads scripture as a contiguous whole, seeks the original and contextual, meaning of the text, understands it as part of an organic tradition subject to authoritative exposition by an institution in organic traditional connection to it, and so forth.

We can talk about the religious stuff and the religious overspill of the point if you'd like (it would, of course, be an odd Catholic who embraced a protestant approach to legal texts and vice versa), but that wasn't what I was driving at.

I realize that there is a popular thesis that holds that North America prospered because it was protestant and South America rotted because it was Catholic. I don't accept that thesis. I think that the english colonies prospered because they were english and contiguous and organic parts of the Anglo tradition, and the spanish and portuguese colonies foundered because they were iberian and were fundamentally treated as property.

Peter said...

"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choos it to mean -- neither more nor less."

"The question is," said Alice, "whether you *can* make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master --
that's all."

Lewis Carroll, "Through the Looking Glass"

Synova said...

"If you've ever raised a baby bird from featherless eyes-closed, it takes a couple of weeks before it develops what you'd call a personality. That's when it recognizes you across the room instead of just opening to vibration. Personality comes with relation."

This is why Singer claims something like the age of two years for human babies.

Others (and maybe Singer) also put the idea of, oh, 12 years out there, since that's when the brain supposedly becomes mature enough to understand the abstract.

And of course humans with mental disabilities may never become people at all.

I think that the first time any of my babies looked at me and I thought "person!" they were somewhere around three weeks. Rationally, did they just arrive in their bodies and become a person, or did they finally manage the purely physical act of focusing? Did this act of focusing change anything about them at all or simply trigger an involuntary biological/chemical reaction in me?

Would a blind child then never become a person?

Speaking of birds that look at you with recognition... have you ever handled a preying mantis? Freaky thing. They turn their heads and *look* at you. They also look forward, which triggers weird frissions in the human brain, like fish with hands. Reason says that a preying mantis is still a bug and a fish with hands is still a fish, but unreason, for the briefest moment, says something quite different.

You're suggesting that we define a person by the same chemical reactions in our brain that react to bugs turning their heads or fish with fingers.

bagoh20 said...

If you were writing the constitution for a new nation, would you write the particular words and phrases to mean what they say in a Protestant type fashion or would you you be more contextual and hope your decedents got your meaning. I think there is a reason the Catholic church with a Pope looks so different from what their founder in rags and sandals did.

Now, you may think the Pope has it better than Jesus did, but in the long run, who really goes on to Hollywood?

TMink said...

Meade, really, what code are you?

Trey

Balfegor said...

Re: Robert Cook:

[responding to Rusty pointing out that the first amendment says: "Congress shall make no law"]

This is your interpretation. Others differ.

I . . . don't think they really do. First amendment's language is not ambiguous and most people commenting on it are able to read. The question isn't whether the First Amendment applies to the states (it obviously doesn't), but whether the protections of the first amendment are incorporated against the states through the Fourteenth Amendment.

Synova said...

Simon, you're suggesting by "non theological" approach, that faith traditions are related to nothing else. That the Anglo and north European tradition that lead to prosperity is severed in all significant ways from the individualistic character of the Protestant reformation and that the Iberian view of authority has naught whatsoever to do with a Catholic tradition of worldly authority.

You don't *like* the traditional Protestant inflexiblity; it makes you uncomfortable.

But Protestant inflexibility, individuality, direct personal responsibility, and adherence (at least in theory) to the text, IS what works when applied to government and economic systems.

Simon said...

bagoh20 said...
It is now [significantly more complex than the broad terms in which it presents itself], but that was created - some needed, but much not.

It is more complex now in part because it has been unpacked. Many things could be left as simple then because they were taken for granted or simply not considered. Moreover, as you concede, some doctrinal complexity is needed; to an extent, as Judge Bork put it in Ollman v. Evans, “doctrine is merely the judge-made superstructure that implements basic constitutional principles.” 750 F.2d 970 (D.C. Cir. 1984) (Bork, J., concurring). If Congress may regulate commerce, and courts are to enforce that provision, the courts must have a standard or test for discerning whether a regulated activity is “commerce,” and cases applying it; the sum of these things is called doctrine. If Congress may regulate commerce and enact laws “necessary and proper” to carry that regulation into effect, the problem doubles, because then the courts must have standards, tests, and cases discerning what “necessary” and “proper” mean separately and in relation to one another, and discerning whether a give statute is permissible. All of this adds complexity to the unadorned text. Seen this way, complexity is simply the bow shock of law travelling through time.

While I think Roberts got it wrong I find the suggestion that Roberts’ ACA opinion made the law more confused puzzling. In what way?

Simon said...

bagoh20 said...
If you were writing the constitution for a new nation, would you write the particular words and phrases to mean what they say in a Protestant type fashion or would you you be more contextual and hope your decedents got your meaning[?]

I can’t step out of my own skin. I would inevitably write as part of the Anglo-American legal tradition, and as such would write at the level of generality appropriate to a constitution, using words and phrases in the sense that our civilization has traditionally understood them. For example, when I granted a branch “legislative” power, I would presuppose an understanding of that term that is grounded in our tradition—the term does not mean whatever a subsequent generation would like it to mean. In the same way, as Justice Frankfurter observed in at least two cases, when the founders gave the courts “judicial” power, they were granting the courts the ambit familiar to the framers as that of the judges of the courts at Westminster and the colonial courts. If I speak about “due process of law,” I mean the process that Anglo-American society has traditionally understood as being due for a certain kind of action. And so on.

I think there is a reason the Catholic church with a Pope looks so different from what their founder in rags and sandals did.

It doesn’t. Not in any essential part. Jesus proclaimed the gospel and healed the sick; He pointed to the Father and called all people to himself; he taught the faithful and converted the doubtful; he made salvation available to all through the offering of his body and blood in expiation for our sin. He does so today still, through His church, as he said he would. Christ came as priest, prophet, and king; today, he discharges those offices through the Church that He founded on the Rock of Peter and which He sent as the Father sent him.

Eesh, we’re getting into religion now.

Oso Negro said...

Did Meade and Althouse say they were ENTPs?

Saint Croix said...

I agree that it's no business of SCOTUS but of the states.

That's Scalia's view. That's not my view. I don't think a state can allow an abortion if it's a homicide under state law. Nor do I think that states can kill newborns or the "incompetent elderly." I think Scalia's abortion dissents have been incompetent, actually, at least from any sort of pro-life point of view. I also think his abortion dissents are an embarrassment to his textualism. He doesn't know what a person is, either.

The entire Supreme Court has been horrible in this regard, just horrible.

Thank goodness for amateurs! How could the bench and bar have been so confused all these years!

Simon is being sarcastic, but I think the pro-life movement has been right on the big issue (babies have died as a result of Roe v. Wade), and our best and brightest have been the moral equivalent of vicious sociopaths. At this point the majority is playing "see no evil" while the minority just wants the issue to go away. They've embarrassed themselves and their robes, from Blackmun's "arbitrary" memo to Ginsburg's discussion of the merits of eugenics to the horror show that are the Carhart opinions.

bagoh20 said...

As with the founders of our nation, I doubt Jesus would understand even 10% of what's been done or written in his name.

I'm not saying anything about either Americans or Catholics as people with beliefs and laws, but rather how they are interpreted by the elites who claim to rule and interpret for them.

Bender said...

I don't know a single person who advocates a sola scriptura approach to constitutional interpretation.

But there is a lot to be learned and gained by considering the Catholic exegesis model, which not only recognizes the existence of truth, it also recognizes the need for reading the words of the text in context.

Saint Croix said...

"The question is," said Humpty Dumpty, "which is to be master --
that's all."


Yes, that's very good.

We are indeed the master of words. We create them and give them meaning.

If we are unsure what a word means, we look it up in a dictionary. That way we get the common understanding.

If you look up "person" in a dictionary, we discover that a person is a live human being. I read that and I go, that's right. A live human being is a person, and a person is a live human being. I agree with that. I agree with our society's definition of what a person is. And I am unhappy with attempts to negate or diminish this word. I am unhappy with attempts to dehumanize what is, in fact, human.

What Humpty Dumpty is saying is that he's a dictator. "When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean."

And that's fine in the area of art. We can turn words around and create new words and use words in funny ways. You can play god with words in art, just like you can kill people in art.

But you can't do that in law. Words have a specific meaning for our people. If you give words new meaning, if you deconstruct a word and turn it around so it means the opposite, you are no longer a good democrat who is following the law of our people. No, you are now a dictator who can't resist the urge to play god.

Simon said...

Synova, if your point was that Protestantism influenced the character of English society, and thus England’s American colonies, I could happily agree with that. I do not agree, though, that the uniqueness of those colonies was a direct consequence of Protestantism; if it was, why did every other colony founded later, after still-protestant England had moved a degree or two closer to the heat death of civilization, followed a different course? Why has England herself? I can’t accept that. There was something about the culture of England in that age that came across the Atlantic and the relationship that the colonies developed to the tradition that spawned them. It's something that England and her later colonies, sad to say, have lost. We remain, as keepers of the flame.

On the other point, if we really must get into religion, it’s not a question of what I like. To the contrary, I had every incentive in this world to be a protestant. I had every earthly reason to stack the deck and sit tight. For a number of reasons, it was the path of least resistance. Its only disabling fault was that it’s not true in any of its distinctive propositions. Christ founded the Church; its structure and praxis is reasonably clear in scripture alone and crystal clear when seen though the light of the Church in the ensuing centuries. Pope Clement I wrote, within the lifetime of the Apostle John, that Christ having been sent by God, and he having sent the apostles, “they went forth proclaiming that the kingdom of God was at hand, and thus preaching through countries and cities, they appointed the first fruits, having first proved them by the Spirit, to be bishops and deacons of those who should afterwards believe. … Our apostles also knew, through our Lord Jesus Christ, that there would be strife on account of the office of the episcopate. For this reason, therefore, inasmuch as they had obtained a perfect fore-knowledge of this, they appointed those [ministers] already mentioned, and afterwards gave instructions, that when these should fall asleep, other approved men should succeed them in their ministry.” It is only by wrenching scripture from its foundations and rejecting everything that the Church—to whom the assistance of the spirit was promised, against which the gates of hell it was promised would not prevail, and the faith of whose chief shepherd would not fail—that Protestantism can make even a prima facie case for plausibility. The Catholic Church, whether I like it or not, “is the one Church of Christ which in the Creed is professed as one, holy, catholic and apostolic, which our Savior, after His Resurrection, commissioned Peter to shepherd, and him and the other apostles to extend and direct with authority, which He erected for all ages as ‘the pillar and mainstay of the truth.’ [1 Tim 4.] This Church constituted and organized in the world as a society, [still today] subsists in the Catholic Church, governed by the successor of Peter and by the Bishops in communion with him….” (LG8 (footnotes deleted)). Every other church that has come since has been founded by men on the lights on their own reason, centuries after Christ departed the earth. I adhere—I can only adhere—to the one founded by Him, on the rock of Peter, and which has since continued the ministry of Christ continuously, in every subsequent age, shepherded by the Apostles and their successors in communion with Peter and his successors. There are things about the Catholic Church that drive me absolutely up the wall. There are teachings that were and/or are exceedingly hard for me to accept. But once one realizes that what a forthcoming work will call "the Catholic proposition" is true, one is stuck with her.

Simon said...

Saint Croix, the problem with your reference to Roe is that bench, bar, and academy have been highly critical of Roe. That is simply not a case in which the amateurs have kept the flame while the professionals have gotten it wrong.

bagoh20 said...
As with the founders of our nation, I doubt Jesus would understand even 10% of what's been done or written in his name.

Doubtless. Look at the Joel Osteens of the world—if you will follow Jesus, he will make you happy and prosperous! Yeah! Right! Tell that to the original twelve apostles, all but one of whom met a grizzly end. Tell that to the men who accepted episcopacies and papacies in the early centuries, all of whom were well aware that they were signing up to be martyrs! Look at the liberal christians of the world—“everyone will be saved, Jesus doesn’t want you to change!”

Bender said...
I don't know a single person who advocates a sola scriptura approach to constitutional interpretation.

That is exactly what people who advocate a “strict construction” are doing, and it is exactly what many of the tea party people are doing whether they realize it or not. Although it is, I suppose, better than the liberal approach to the Constitution which is effectively to deny that words have any meaning at all, still less power to constrain, except when it suits them.

But there is a lot to be learned and gained by considering the Catholic exegesis model, which not only recognizes the existence of truth, it also recognizes the need for reading the words of the text in context.

Right, exactly. And of seeing that the tradition in which that text exists does not run chronologically something like this “text is handed down – nothing of interest or value happens for many years – today.” That is not a conservative approach; it isn’t even a coherent approach insofar as the original understanding of the judicial power certainly contemplated authoritative judicial exposition of the law, and the original understanding of law certainly held custom to be almost as good as law.

Simon said...

But who's to say that Osteen is wrong! I mean, it's not as if Jesus founded a Church or anything, which would have authority to correct misinterpretations of the faith based on misreadings of texts that would not be determined to be scripture by that non-existent Church for more than four centuries after Christ didn't found a Church...

bagoh20 said...

"I find the suggestion that Roberts’ ACA opinion made the law more confused puzzling. In what way?"

Well, do think it's settled? Do the people who's law this is have clarity about it enough to vote intelligently? It should have gone back to congress to be written without the lies, or confusion where the same payment is a tax for one purpose and a penalty for another.

The idea that we steer our ship based on positioning data from a court that essentially tosses a coin - albeit with great scholarly circumstance -, is not the best we can do, I think.

Strict adherence to text is certainly insufficient, but our acceptance that the other extreme is superior is undemocratic.

I think that even a court that was adamantly following the text, would still end up with a lot of waves off the bow by necessity, so I think that bias is far preferable, if we want to be able at all to recognize the document in our law eventually.

The populist impulse is good if it is calling for this. The people are saying stop stealing our law, rewriting it and feeding back to us. It's getting like the long list of ingredients on a modern form of a food your grandmother could make with three items. Now you don't know what your eating, but the experts do, so just trust them. That's not acceptable to me.

bagoh20 said...

The reason the law is getting so complex is that government is into so much of our lives and our society, that all kinds of new equipment is built on to address the incursions. Then, the government uses that retrofitting to make new inroads, and on it goes symbiotically growing.

The Tea Party idea of less government goes with less law about that government. They see it as all related, which it is. Smaller Government is what the Tea Party is about, and that means all three branches.

Simon said...

Bagoh20 said...
"[Simon asked in what manner Roberts’ ACA opinion made the law more confused puzzling.] Well, do think it's settled? Do the people who's law this is have clarity about it enough to vote intelligently?"

So far as the questions presented? Yes. There were two questions presented, in effect: Is the individual mandate within the power of Congress to enact? The answer is quite unambiguously yes. May Congress blackmail the states into accepting the expansion of certain joint programs on pain of losing all their funding rather than just the fnudnig for the expansion? The answer is quite unambiguously no. What's the confusion?

"It should have gone back to congress to be written without the lies, or confusion where the same payment is a tax for one purpose and a penalty for another."

It should have been struck down, in whole or part, because the tax power should not be construed to allow Congress to do through coercion what it can't do by fiat. But that is just my opinion, and there are some problems with my opinion. My opinion would force me to confront the extraordinarily messy question of severability, a nettle which I have simply refused to grasp. My opinion requires me to forge a new doctrinal fence in the heat of partisan battle, in order to strike down an act of Congress, and quite possibly to overrule several long-established cases, none of which it could be argued, is very conservative, and some of which, some would argue, is at odds with what has previously been understood to be judicial conservatism. I have answers on all those points, but they are all arguable propositions. Meanwhile, far from being the wild-eyed absurdity that some would brand it, the Roberts opinion applies a traditional canon of construction (indeed, a traditional canon shorn of modern accretions, no less!) in order to do what many people would argue is precisely what conservative judges ought to do.

And now the ball is back in Congress' court. It may repeal or modify the ACA as it pleases.

Simon said...

bagoh20 said...
"The reason the law is getting so complex is that government is into so much of our lives and our society, that all kinds of new equipment is built on to address the incursions. Then, the government uses that retrofitting to make new inroads, and on it goes symbiotically growing. ¶ The Tea Party idea of less government goes with less law about that government. They see it as all related, which it is. Smaller Government is what the Tea Party is about, and that means all three branches."

I can agree with all of that. I basically agree with the tea party so far as policy is concerned.

Robert Cook said...

Balfegor, said, in response to my statement to Rusty that people's opinions on the meaning of the 1st Amendment differ:

I . . . don't think they really do."

So you don't think there is a conflict of interpretation between those who believe the 1st Amendment erects a wall of separation between church and state and those deny this is the amendment's intent?

How, then, to explain the conflict?

Synova said...

"A wall of separation" is a metaphor.

As a metaphor it's an inexact, though hopefully illustrative, representation of what the intended meaning is.

As the metaphor is used more and more to demand that there is actually a requirement to "prohibit the free exercise" of religion, purposefully and actively favoring a religion free secularization of anything any citizen is compelled by the State to participate with, we see more and more the shortcoming of that metaphor.

Bender said...

That is exactly what people who advocate a “strict construction” are doing, and it is exactly what many of the tea party people are doing whether they realize it or not.

Again, I don't see that as an accurate characterization. Rather, the Tea Party people for the most part advocate for an "original intent" reading. Some of them might think that "strict constructionist" and "original intent" are the same thing, but that is because they have better things to do with their time than to argue the differences between them. To be sure, the very fact that they take their name from a founding event would indicate that they want the Constitution to be have the same meaning today that it had 200 years ago.

Col Mustard said...

INTP here. Missed INTJ by that much.

More than a few of those questions can be honestly anwered 'yes' or 'no' - You readily help people while expecting nothing in return Friends, family, co-workers; yes. Strangers; not so much.

The test is badly in need of an update to reflect use of the internet, smart phones, etc. with regard to sociability and introvert/extrovert.

Is surfing the web the same as staying home and reading a book? Are you an extrovert if you post on a forum like this or really an introvert who's avoiding 3D interaction at a pub or a party?

I love reading online or off but I crave being around interesting people so, many nights,I go out to a familiar bar. Used to be everyone at the bar was ripe for conversation - now, about half stare at their phones for hours texting, surfing, playing games...

Perhaps electronics has created an entirely new personality type.

george said...

You can have a living Constitution or you can have a government with legitimacy. You can't have both, which is precisely out problem now.

Roberts thought he would play politics and win back those who think the Constitution can be made to mean anything they like and in doing so he proved just that... the Constitution can mean anything they like. That being the case, what is the use of having a constitution at all?

We are ruled by low men of little character... as always.

Synova said...

After all... there is a wall.

On one side is the State and on the other side is Religion.

Citizens do not have a choice about being on the State side of that wall.

Unknown said...

For the same reason that men trend more conservative: They have a stronger sense of financial responsibility. That's the way they're wired, to be heroes. For the fiscally responsible, conservative government and strict interpretation of the constitution fit hand in glove.

Synova said...

I ended up INTJ (by slight and moderate preferences) which is what I think I usually end up at.

I wonder if they asked "How dumb do you think these questions are?" They'd get interesting answers from the TJ people. I took a test once to see how empathetic I was. That was a stupid test, too, even though I aced it as super empathetic (not having any virtue points to put into proving I was honest about being a poopy-head with the additional virtue points for trying to be better).

The questions seem to assume that if one *feels* that the feelings dictate application. Do I feel for the poor and downtrodden? Do I then jump into causes that touch my emotions? Or do I favor thinking and judging?

I've said it before... until the first person is actually, materially, helped, all the emotional right-thinking is masturbation. How can it be better to care more if the people you supposedly care about stay miserable? Why don't we demand that social programs (and schools) prove they work, prove they don't weaken social structures, prove that generations later people aren't worse off? Why do we care more about a "good cause" than we care about good results?

Bleh.

rhhardin said...

This is why Singer claims something like the age of two years for human babies.

Others (and maybe Singer) also put the idea of, oh, 12 years out there, since that's when the brain supposedly becomes mature enough to understand the abstract.

And of course humans with mental disabilities may never become people at all.


The criterion, though, is where the words go, like "a person", and to follow them, because they follow our interests. It's not something you decide in advance. Systems run best if designed to run downhill.

At the moment the words line up with born and not born.

A lot of rhetorical effort is given to changing that notbornwise but that's a theological interest, mostly, and not likely to move the words.

It isn't something objective about the baby/fetus but something subjective about social relationships.

Cavell has a nice paragraph on it, I wonder if I can find and link it...

yes, here

cubanbob said...

Simon said...
bagoh20, if someone receives an email that makes a shocking and amazing claim and their first thought is to forward it to everyone they know (rather than, say, to snopes it), I wouldn't say that they know the limits of their abilities terribly well.

7/12/12 1:50 PM

You summed up pretty well the emails I get from the DNC and Obama Campaign.

As for the outcomes of British North America vs. Latin America, it's all in the initial goal of the colonization. The Latin's were looking for El Dorado, the quick buck, but wound up staying for four hundred years. The British started with the colonies being New England, an extension of the mother country. Therein lies the difference in culture and governance.

You have made some interesting points although I can't say I am in agreement with all of them. However you and Robert Cook whether by intent or not have hit the nail on the head. That being that the Constitution needs a housekeeping amendment, one that defines terms as terms of the art with fixed specific meaning and included in that amendment that laws passed by law making bodies always apply to those bodies and all laws and ordinances must cite where the authority for it originates from and define what is the basic organic law of the United States and what if any are the limiting factors that apply to the US and the various States and their subdivisions. Now let the fun and games begin. Frankly if the Republican's had any sense this is something they would push for now for the upcoming elections, state and federal.

Synova said...
This comment has been removed by the author.
bagoh20 said...

" That being that the Constitution needs a housekeeping amendment, one that defines terms as terms of the art with fixed specific meaning ...

Frankly if the Republican's had any sense this is something they would push for now for the upcoming elections, state and federal."


That would be great, as well as popular, and it would either be bipartisan or an excellent wedge issue for conservatives. Let's argue about who wants the law to be clear, and who doesn't.

cubanbob said...

rhhardin said...

There is a guy name Scott Peterson sitting in Ca's death row precisely because he killed his unborn fetus.Murdering his wife alone apparently wasn't sufficient under California law to warrant the death penalty. The penalty was predicated on the aggravating circumstance of his killing the unborn fetus, thus making the fetus in this instance sufficiently human for the purposes of handing Peterson the death penalty. Yet another example of The Theory Of Quantum Law.


Simon the fundamental flaw the Roberts made is that he didn't go far enough; saying the the mandate was a tax but then not ruling that the ACA mandate ruling should then be set aside until someone paid it and then challenged it. Calling something a tax doesn't define what kind of a tax it is. While his ruling states to some degree what kind of a tax it is not, it doesn't state what kind of a tax it is. It would have better all the way around had he punted it that way and let the tax courts deal with the definition of what kind of a tax it is and whether or not it falls under the permissible taxes Congress can enact.

Now that Congress is engaging like the Court in Quantum Law the ACA mandate is beginning to look a lot like the mirror image of a land tax.

Synova said...

"Systems run best if designed to run downhill."

Depends what's on the bottom of the hill.

Libertarians are big into working with instead of against human nature, but it's not an absolute thing, it's tempered by self-interest.

If I'm free to murder my neighbor, my neighbor is free to murder me.

If I'm free to steal from my neighbor, my neighbor is free to steal from me.

I can assert that liberty is best maximized but it is not a right for one person to violate another person's self or property. At this point the only question that remains is who counts as a person.

The "downhill" on this one isn't a mud slide in History, it's a blood slide.

It justifies genocide, slavery, and eugenics. 

I'll look at the link, but can not imagine how a definition of relationship conferring value to life is anything other than, as so many other arguments, a matter of "at conception" (in either sense of the word) or "whenever I damn well please."

Synova said...

AAAHhh... okay.

What that looked like to me was an argument in favor of abortion on the basis of an absence of utility.

Slavery and all those other things I said, being, at some time, justified socially as serving a purpose, while abortion serves no purpose.

Thus as a mere choice, it can't be compared to bad things on purpose.

Gawd.

cubanbob said...

Synova said...
"Systems run best if designed to run downhill."

Depends what's on the bottom of the hill.

Libertarians are big into working with instead of against human nature, but it's not an absolute thing, it's tempered by self-interest.

You make a good reason for using the Hebraic Principle of The Golden Rule as the beginning point of a legal system and legal reasoning:

"Do not do unto others as you would not have them do unto you."

The Founder's understood this when they created the Constitution since at it's core all of the rights enumerated or presumed to the individual are negative rights.

Fen said...

Cook: Oy vey! The debate has never been whether those specific words appear in the 1st, the debate has to do with what those words mean, what the 1st Amendment is intended to do.

Uhm... as a qualifier, the debate should be over meanings of words that actually APPEAR in the 1st, as opposed to those you want to make up.

You might as well argue: the debate has never been whether "possum" appears in the 1st, but how "possum" applies to 1st Amendment"

Its a non-starter.

Saint Croix said...

Saint Croix, the problem with your reference to Roe is that bench, bar, and academy have been highly critical of Roe. That is simply not a case in which the amateurs have kept the flame while the professionals have gotten it wrong.

The bench, bar, and acadmey have criticized Roe as a legal opinion. They've criticized the argument and the lack of legitimacy. Yes, yes, abortion is not in the Constituton. Neither is soccer. So what? As a legal criticism that is decidedly lame. Is abortion is just like birth control or living with your grandmother?

Your so-called elites have utterly missed the boat in regard to infanticide, which lots of non-lawyers seemed to have grasped intuitively. And this despite the fact that we actually have laws on the books in regard to when people die.

I can't tell you how bad the conservatives on the Supreme Court have been. For instance, in the second most brutal judicial opinion I have ever read, Carhart II, Scalia and Thomas concur separately. Because they want to protect the baby's right to life? No, no, to point out that maybe partial-birth abortion is intrastate commerce.

They can go fuck themselves. Scalia has compared abortion to slavery, and now he's saying, well, it's intrastate commerce. Am I supposed to believe he's fucking anguished like one of the judges in Justice Accused? Ha!

He and the rest of the conservatives dance around the issue of infanticide. They avoid talking, thinking or writing about it, if they can. They just want it to go away! Half of Scalia's Casey dissent involves whining about his institution and talking about Justice Taney's sad protrait. Some of us think the legal issues involved in slavery are more important than Justice Taney and his sad fucking portrait. When I look up "navel-gazing" in the dictionary there's a picture of Justice Scalia and his big, fat, hairy belly button. I don't give a fuck about your portrait, Justice Scalia! Your institution can shove its head up its institutional ass!

rhhardin said...

Possum means Yes We Can in Latin.

Pogo said...

Some great and learned comments here.

Mine is neither.
Given Kelo and the ACA decisions, I have no faith in the law or judges or in our government anymore.
It's all malleable, rules meant for power.
The Constitution is now rendered meaningless.

So I will from now on respond in kind.
SCOTUS is just one more bullshit machine. I can work to change it, but until then, they are no more to be trusted than former writers of SNL turned US Senator.

Fuck it, I say.

Simon said...

Bender said...
"Again, I don't see that as an accurate characterization. Rather, the Tea Party people for the most part advocate for an 'original intent' reading."

They advocate a strict interpretation of the constitution according to the "original intent," yes. Which is wonderful, because it means they are demanding that we take something that forty years of conservative legal scholarship has decisively shown to not exist (and which would not be binding if it did) and construe it in the manner that forty years of conservative legal scholarship has rejected. Swell!

cubanbob said...
"As for the outcomes of British North America vs. Latin America, it's all in the initial goal of the colonization. The Latin's were looking for El Dorado, the quick buck, but wound up staying for four hundred years. The British started with the colonies being New England, an extension of the mother country. Therein lies the difference in culture and governance. "

Right, right. That was one of the points toward which I was fumbling above, but you said it much better. It's not just that Iberian culture was different, the Iberian conquest was just that--they came to conquer and strip-mine. The British came to colonize. There's a massive difference in the psychology. When you come to build a civilization, you export your civilization. When you come to exploit, you keep your culture tightly-held around you.

"[T]he Constitution needs a housekeeping amendment, one that defines terms as terms of the art with fixed specific meaning and included in that amendment that laws passed by law making bodies always apply to those bodies and all laws and ordinances must cite where the authority for it originates from and define what is the basic organic law of the United States and what if any are the limiting factors that apply to the US and the various States and their subdivisions."

I don't see any need for that and I find the idea terrifying.

Rusty said...

Simon I think the Federalist Papers and some of the founders personal writings-Jefferson and Adams for example-would bear me out on this. Thier fear was a state religion like the Anglican church and its influence,not on parlament, but on the King. In our case influening federal policy.
If it were to control the influence of religion on the states the religions of the religious colonies would have been outlawed. So the welfare liberal interpretation doesn't scan.
Whether Skokie puts a menorah in the village square or the Salt Lake City puts a statue of an angel blowing a trumpet in theirs is none of Washington DCs business.
As I've said before There are 10 protestant churches, five catholic churches, two synagogs, a mosque, and a hindu temple within five miles of me and I don't have to go to a goddamn one of them. And if you are so intimidated by a cross on the village green, or the mention of jesus at a graduation ceremony, you have more problems than just religious symbolism.

Simon said...

rhhardin has left a new comment on "Possum means Yes We Can in Latin."

It means I can, or I am able to.... The plural for which you are reaching is possumus.

Saint croix said...
"The bench, bar, and acadmey have criticized Roe as a legal opinion."

Fancy!

"abortion is not in the Constituton. Neither is soccer. So what?

If it's not in the constitution as a right, that means that government may choose to ban it, subject to all the other restrictions and caveats.

"Your so-called elites have utterly missed the boat in regard to infanticide, which lots of non-lawyers seemed to have grasped intuitively. And this despite the fact that we actually have laws on the books in regard to when people die. "

No, the liberal elites have missed the boat. Most conservatives are well aware of it.

"I can't tell you how bad the conservatives on the Supreme Court have been. For instance, in the second most brutal judicial opinion I have ever read, Carhart II, Scalia and Thomas concur separately. Because they want to protect the baby's right to life? No, no, to point out that maybe partial-birth abortion is intrastate commerce. "

Uh huh. They were right to do so. It is not immediately clear why the federal government has any authority to regulate abortion, although Althouse has made such an argument in the past presupposing extant commerce clause doctrine. Not buying it. The fact that you and I regard abortion as murder does not change the Constitution--that is a desperately fallacious notion, the idea that whatever you think is important, the Constitution serves your preferred outcome. It doesn't. The states may, but should not, allow abortion. The federal government may, and should, ban abortion to the extent that it can ban murder.

Saint Croix said...

It is not immediately clear why the federal government has any authority to regulate abortion

Same rational for why the federal government can regulate slavery. The 14th Amednment gives Congress authority to ensure that nobody is being dehumanized as a matter of state law. Thus if Massachusets decides to start killing babies, Congress can put a stop to it.

Of course Massachusetts can define when people die as a matter of state law. But the point of equal protection is that said rule must apply to all people in the state, including babies or the very old.

Jurists like Scalia have spoken of the baby's life like it's theoretical or possible. They have accepted the postulates and theories of Justice Blackmun in this regard. It's incompetent, truly. They have not attacked the dehumanization of human beings, which is the core holding of Roe. No, that's a given. Scalia and the dissenters dehumanize the baby and then calmly discuss whether or not there is a constitutional right to abort a pregnancy, as if no baby is involved.

Abortion is controversial with millions of Americans precisely because we deem it homicidal. For everyone on the Supreme Court to skip over this argument is insane. Indeed, the opinions in Carhart are almost laughable in that everyone on the Court is upset, everyone is discussing how ghoulish their work is, they're grossed out by their own rules, and yet none of them step up and suggest that we apply our death and homicide statutes to the issue.

Scalia gets credit for not joining any baby-killing opinions. But he and the rest of the dissenters are hardly defenders of a baby's right to life. Indeed I daresay they scoff at such an idea. The baby is weak and vulnerable, she can't vote or talk, she can't pick up a gun and she can't feed herself. Her inferiority is assumed.

They've resolved it like Nazis or slaveowners would. Blackmun himself cites the pagan Plato for his viability and autonomy theories--theories Plato used to murder newborns.

No, sorry, I'll take my chances with common people who fear God. And judges who look up tough words like "person" in the dictionary. If Carhart is any indication, newborns might not be people, either. And Scalia would apparently expand that list of sub-humans to include the "incompetent elderly."

Eric said...

Even assuming for discussion that was the only intent of the amendment, (and not also to protect citizens from the imposition of religious tyranny), there are those who insist that the wall of separation betwen church and state is a requirement to insure protection of religion from the state.

There were states with state religions decades after the constitution was ratified. Surely if the intent had been to erect a wall between church and state that wouldn't have been the case?

Simon said...

Saint Croix said...
"Same rational for why the federal government can regulate slavery. The 14th Amednment...."

The Fourteenth Amendment protects "persons" as that term was understood at the time it was ratified. Children in utero were not then considered people. We know better now, but we didn't then. As then-Justice Rehnquist's Roe dissent explains, abortion was illegal, which is fatal to the liberals' theory that the Constitution protects abortion, but the child in utero was not considered a person. If you have some startling new evidence to the contrary, please share it, because I can imagine few things that would please me more than being able to outlaw abortion throughout the country tomorrow, but it's just not there.

Simon said...

Rusty, the more that learn about Jefferson, the less I like him or find him credible as a writer with anything much to say about the thought of his age. Anyway, the purpose of the establishment clause, it's absolutely clear, was to prevent the establishment of a federal religion, or the displacement of a state's established religion. ("Religion" here is beyond doubt a synonym for "flavor of christianity"; I know of no reason to suppose that it was itended to have any application to non-Christian religions.) The core of that protection is in no doubt: A law stating that "the religion of these United States is the Anglican faith, and the bishops of that church shall be ex officio members of the Senate." But what else does it do, either by itself or when augmented by the fourteenth amendment? That is by no means clear from the text alone.

Robert Cook said...

"Cook: 'Oy vey! The debate has never been whether those specific words appear in the 1st, the debate has to do with what those words mean, what the 1st Amendment is intended to do.'

"Uhm... as a qualifier, the debate should be over meanings of words that actually APPEAR in the 1st, as opposed to those you want to make up."


Well, perhaps my phrasing wasn't as clear as it should have been, but that's exactly my meaning: the debate is not whether the words "separation of church and state" appear in the 1st Amendment--no one has ever said they do--but about what the words actually in the 1st amendment mean.

Some interpret the wording of the 1st amendment to mean the there should be a separation of church and state; others reach different interpretations.

Is that more clear?

Saint Croix said...

The Fourteenth Amendment protects "persons" as that term was understood at the time it was ratified. Children in utero were not then considered people.

And you know this because abortion was legal in 1865? Oh, wait, you mean it was illegal across the land? Almost like people thought abortion was bad?

The Texas statute at issue in Roe v. Wade outlawed abortion since 1854, Simon. Not just outlawed it, but defined it as a violent crime akin to manslaughter.

Blackmun argues that Texas did not define it as murder, thus the laws were discriminating against the baby. Fine. But that merely means the discrimination is illegal! You strike the statute and tell Texas to bring it's abortion, death and homicide statutes into alignment. If Texas thinks it's a homicide, they need to define it as such.

Instead Blackmun, like an ass, like an idiot, concluded that defining abortion as mansalughter "proved" that babies aren't people.

If you're going to define babies as property you're going to have to do a better job than cite Blackmun's slipshod analysis in Roe v. Wade. Or, for that matter, Rehnquist's incompetent dissent. As Justice Rehnquist was the author of this atrocity, I feel safe in concluding that Rehnquist wouldn't recognize a homicide if the bodies were piled up in his office.

If you have some startling new evidence to the contrary, please share it...

Why do I need startling new evidence that a baby is a person? Please give me some evidence that she's property. That definition is so appalling that no liberal dare use it, for fear of making the slavery comparisons obvious. But of course that's what they're saying. She's not a person, ergo she's property who belongs to the mother. And since she's legally sub-human, she can be ripped into pieces. And you say the Constitution requires that possibility? For fuck's sake.

I can imagine few things that would please me more than being able to outlaw abortion throughout the country tomorrow, but it's just not there.

I'm not saying the Supreme Court should "outlaw abortion throughout the country." They clearly do not have that authority. All the Supreme Court can do is ensure that a state's laws are applied to all the people in the state. That's what equal protection is all about.

What I'm saying is that when the Supreme Court sends abortion back to the states, a state cannot allow an abortion that would be a homicide under the state's own death statutes. A state has to follow its own laws!

Are you familiar with our death statutes? We have laws in place in regard to when people die. This is an obvious and overlooked law that the Supreme Court has failed to apply to the abortion controversy precisely because they have defined a baby in the uterus as property. I have nothing "new" in regard to why defining babies as property is a shitty idea. It seems fairly obvious to me. Dehumanizing people leads to vicious crimes against the people dehumanized (see Carhart. And it seems to me the Framers of the 14th were interested in protecting humanity, not denying it. But please tell me why a corporation is a person a baby is property!

Simon said...

Saint croix said...
"Why do I need startling new evidence that a baby is a person?

I asked you for no such thing. An unborn child is a person; you know it, I know it, even the pro-abortion people know it deep down. What we know in 2012, however, is irrelevant; what is relevant, and what I asked you for, is some reason to think that in 1868, an unborn child was considered to be a person. Do you have an answer to that?

Saint Croix said...

what I asked you for, is some reason to think that in 1868, an unborn child was considered to be a person. Do you have an answer to that?

Baby = person is the natural and common sense reading of that phrase. Do you have some evidence that the abolitionists who voted for the equal protection clause actually wanted to define babies are property? It's an absurdity!

As for historical arguments that people in the 19th century viewed abortion as murder, it was outlawed in numerous states and feminists like Susan B. Anthony and Elizabeth Cady Stanton were quite vocal on the subject, referring to abortion as "child murder."

And what's your evidence that the Framers of the 14th Amendment intended to protect corporations? If a corporation can be construed as a legal person, surely a baby can. Why so liberal with the word when it comes to a legal construct but so dismissive when it comes to an actual human infant?

Simon said...

Saint croix, this is precisely the kind of amateur's error that I faulted above. You take an old text and read it with modern assumptions; you see the word "person" and you read it the way that we would today. In 2012, a child in utero is a person; there is little serious doubt about that, and the number of pro-abortion absolutists who profess to adhere to it is dwindling rapidly. But in 1868, that was not the understanding. To my knowledge, no one has even tried to show otherwise, and when I invited you to do so, you offered nothing substantial. If you have evidence for your position, I, and Justice Scalia, want to know about it, because if you can prove the point, then you are right: The fourteenth amendment would, in practical terms, forbid abortion. Until you establish that novel and dubious point, however, viz. that the original understanding of "person" included the unborn, you're engaging in a well-intended tilting at windmills.

I appreciate your zeal and I share your view that abortion is the preeminent national sin, having claimed millions of lives; it must be stopped. But that doesn't create a Constitutional power to do so.

As to corporations, legal persons were known in 1868, 1788, and before. Blackstone's treatment is, as with much of his work, fairly enlightening. But methinks that you are missing the point if what you have in mind is a case like Citizens United. That case did not hold, as its critics charge, that "corporations" have a right to free speech, but rather that you and I do not lose our right to free speech simply because we organize in a corporate form. The vicar of St. Whatever parish—Blackstone's eyebow-raising example of a corporation—has first amendment rights notwithstanding his corporate identity. If Ann Althouse formed an LLC in order to protect herself from liability, and the Althouse blog was therefore a publication of Althouse LLC rather than Ann Althouse as an individual, she would not lose the protections of the first amendment quoad publication. That's what Citizens teaches.

Rusty said...

("Religion" here is beyond doubt a synonym for "flavor of christianity"; I know of no reason to suppose that it was itended to have any application to non-Christian religions.)


I was under the impression that there were Jewish communities in a least some of the largest cities in the colonies -Boston, New York, and Philidelphia and at least one Jew signed the declaration of independence. I don't think your above assumption is necessarily the correct one.