March 2, 2017

"What if right-leaning jurists listened to their critics on the left, and adopted a 'living Constitution' approach instead of relying on what the Framers understood the text to mean? "

Glenn Reynolds has a go at answering a question asked by Randy Barnett.

One idea is that "the constitutional civil liberties doctrines developed by judges throughout the 20th Century" don't fit the post-9/11 conditions.

Another would be to decide that the administrative state — "a bloated bureaucracy with serious accountability problems" — violates separation of powers.

And maybe the one-person-one-vote approach to legislative apportionment would no longer be seen as an Equal Protection requirement.

And maybe the privacy rights decisions could be seen as "written against a background of hysteria about a 'population explosion'" that no longer exists.
[T]he United States — like many other countries — faces not a population explosion but a baby bust, with birth rates too low to sustain population, or to produce enough workers to fund retirement programs for the elderly. These decisions were also followed by a breakdown in family structures that continues to get worse. I can imagine a “living Constitution” conservative concluding that, whatever the logic of these decisions is, experience has shown them to be too flawed to survive.
The "living constitutionalist" liberals are mostly confident that the Constitution only grows in their direction and thus that conservatives can't get anywhere with their theory.

(That's similar to the way "progressives" feel complacently good about progress — visualizing it out there in the future as a place we want to go. How do they know we'll like it when we get there? Why don't they worry about other progressives progressing us into a place that doesn't look like what they dreamed?)

149 comments:

Earnest Prole said...

My “living constitution” is your “naked politics.” Do the ends justify the means? That's easy -- they justify my means but not yours.

Rocketeer said...

Why don't they worry about other progressives progressing us into a place that doesn't look like what they dreamed?

Well that's easy to answer - it's because all progressives dream of progressing us to the same place.

If they were smart enough individually, however, they'd realize that they wouldn't necessarily be the ones with Lada limos and summer dachas on the Black Sea.

Chuck said...

Wow, I got about five great links out of one Althouse post.

Sincere thanks to Professor Althouse for alerting me to these columns. Reason number 3,720 why I daily click on her blog.

sean said...

Those privacy decisions were also written in the context of a liberal Protestant religious hegemony that no longer exists, when it was assumed that Catholicism would eventually assimilate to the liberal Protestant ethos, that Orthodox Judaism would disappear (Reform Judaism having already conformed to liberal Protestantism, and Islam (to the extent that anyone thought about Islam) would do the same. Now we see that liberal Protestantism has in fact collapsed, that support for liberal abortion rules has not become unquestioned orthodoxy, and that the Court's past rulings have not quieted debate or created a new national consensus. So living Constitutionalism counsels revisiting those issues.

Nonapod said...

Why don't they worry about other progressives progressing us into a place that doesn't look like what they dreamed?

In my experience, Progressives lack imagination. They're convinced that they are good and righteous and therefore nothing could go wrong as long as they're in power. They refuse to see the obvious flaws with this assumption that have been borne out in plenty of historical and contemporary examples. They believe that centralizing power into the hands of a small elite cadre will work if these elites are super smart and pure enough of heart. It's basically a faith.

Rusty said...

Progressives sincerely believe that you have no idea what is good for you and that you must be forced in the direction they want you to go. Fascism is thinly disguised progressivism.
I like the vision of the founders. You make your own future. Still pretty awesome shit.

CJ said...

"Be careful what you wish for, because you just might get it" ought to be the official Democrat Party slogan.

MikeR said...

Kind of a weird idea. "Maybe a conservative judge will just make things up to go the way he wants." Who would do a thing like that?

CStanley said...

Why don't they worry about other progressives progressing us into a place that doesn't look like what they dreamed?

I think they do worry about it, perhaps subconsciously, and that is leading to ever increasing hostility toward thought crimes. They know they have to conform to one vision.

OGWiseman said...

As someone who has studied literary theory, the idea that any judge has access to the "framer's intent" is laughable to me.

As far as the specifics of that column, does Reynolds (or anyone) really support criminalizing birth control within a marriage? And in the same internet breath as LIMITING government power? Sheesh.

Michael K said...

The best comment on Insty is the one about geographic representation. Illinois and California are ruled by urban islands that wreck the rest of the state. New York could have a prosperous upstate from fracking if it was not for NYC dominating the popular vote.

traditionalguy said...

It's alive. Run!

n.n said...

The Constitution does not recognize a right to commit elective abortion (i.e. "final solution"). This is a conception of liberal judges based on their sincerely held twilight faith and normalized by a Pro-Choice Cult, and enough "go along to get along" others.

Liberalism is a divergent ideology.
Progressivism is monotonic change.
Conservatism is a conservation of state.
Principles matter.

Rocketeer said...

As someone who has studied literary theory, the idea that any judge has access to the "framer's intent" is laughable to me

Well Publius is laughing right back at you, so it's all cool

n.n said...

Why don't they worry about other progressives progressing us into a place that doesn't look like what they dreamed?

Because "progress" has a positive denotation, where in fact it is actually unqualified, monotonic change. The journey as much as the destination are significant.

mockturtle said...

One thing is certain: When the drafters of the Bill of Rights included freedom of worship, they didn't have Muslims in mind. Or Satanists. I don't think there is anything wrong with the intent behind our Constitution. Only with some of the poor decisions that have distorted it.

C Stanley said...

@OGWiseman, you are a literary scholar but you didn't understand that Reynolds was not advocating for the ideas he presented?

buster said...

@OGWiseman, it's "original public meaning," not "framers' intent."

rcocean said...

Sorry, I want a conservative activist on Court. I see Republicans are playing the same loser game they always do. The Democrats appoint left-wing activists, and the Republicans appoint "originalists". The Democrats appoint hard-care leftists who always vote as a bloc and always with the Left. The Republicans appoint leftists, moderates, and conservatives, and pat themselves on the back for doing so. What a bunch of losers.

And here's another clue. Like Roberts, Souter, and Kennedy, the fact that all the moderates and some leftist Democrats think Trump's current nominee is great and that he will sail through, isn't a good thing if you want another Scalia on the court.

Sigivald said...

The belief in Historicism is a weird sort of Communist (literally!) straggler.

I find it hilarious that the same people always trumpet an alleged commitment to "science", which supports no such beliefs.

(Of course, as widely noted, in that use "science" refers only to using scientific credibility to buttress beliefs they like, and as an attack on the Other. Whenever "science" differs from the decree of history, it suddenly stops being ... science".)

Larry J said...

OGWiseman said...
As someone who has studied literary theory, the idea that any judge has access to the "framer's intent" is laughable to me.


Yeah, it's not like anyone back then actually wrote down what they were thinking when they wrote the Constitution, did they? Imagine how useful a collection of papers on the various aspects of federalism would be. /s

My name goes here. said...

Nothing wrong with saying "the Constitution is not a living document but the court is a living institution and has made rulings inconsistent with the Constitution and we need to be active in applying rulings that are consistent with our founding documents. And, where necessary undoing previous Supreme Court rulings."

Angel-Dyne said...

OGWiseman: As someone who has studied literary theory, the idea that any judge has access to the "framer's intent" is laughable to me.

As "someone who has studied literary theory", your insight into discerning intent is significantly inferior to that of a student of history, but maybe a little better than a newt's. (Where on that spectrum any judge falls varies by judge.)


C Stanley: @OGWiseman, you are a literary scholar...

Well, "someone who has studied" "literary theory".

...but you didn't understand that Reynolds was not advocating for the ideas he presented?

"Can't read" has never been a disqualification for being a student of literary theory.

Rocketeer said...

Imagine how useful a collection of papers on the various aspects of federalism would be.

I want credit for a "Publius" reference above, dammit!

rcocean said...

What would an 'Activist" conservative judge do?

- Declare the fetus a "person" under the 14th Amendment
- Reverse prior SCOTUS decisions giving rights to illegal aliens
- Declare Affirmative Action unconstitutional
- Undo the doctrine that States have to elect Senators using one man, one vote.
-

Angel-Dyne said...

Rocketeer: I want credit for a "Publius" reference above, dammit!

Fear not, I read and rejoiced and credited, Rock!

(Maybe we need some kind of "upvote" widget so commenters don't feel sad and unappreciated just 'cause nobody had anything to add...)

C Stanley said...

My Name Goes Here is completely correct, of course, but it's equally obvious that any justice who operates under that philosophy will be pilloried by the left for conservative activism and people who express agreement with his or her rulings will be called hypocrites.

Triangle Man said...

They might even interpret the first amendment so broadly that it permits foreign influence in US elections through corporate funded electioneering communications.

buwaya said...

Its all, always, a bunch of legal ritual dressing up a plain exercise of power.

A judge isn't simply a judge, and can't change anything with a decision, no matter how pretty his reasoning. This has to be upheld and enforced by a great number of other people who know on which side their bread is buttered. I.e., the "deep state" indeed.

Reynolds' conservative judges will get as activist as they like and will unveil all sorts of clever novelties, if they feel free to do so and if they calculate their decisions will stick.

buwaya said...

Every one of us is a hypocrite and a sinner and a con-man.
Some of us need to fool ourselves about our nature to get through the day.
Legal reasoning seems to me just a way to rationalize what the judge figures is the correct outcome, arrived at, most likely, unconsciously.

Guildofcannonballs said...

Trick question, if thought about in the terms of those of the mega-damnable such as Kennedy defined Bork to the nation abusing.

I say we

1) piss all over Senators being elected by statewide vote vs. State Senators being held accountable to more diversely interested groups in their duty in electing US Senators.

2) light on fire after soaking in soggy feces anything mentioning the Interstate Commerce Clause.

3) demand all official members of the press submit their dignity and pride when performing regulatory dances such as progs make gun owners hop/trudge/mope through within this age's spirit.

Jack Wayne said...

The argument over a Living Document and Originalism is a false argument. LD insists that any argument over the meaning of the words in the Constitution must be resolved in favor of the current meaning. This is Humpty Dumpty's argument. Originalism says that we can resolve arguments over the meaning of words in the Constitution by discovering the original meaning of the words. Except that even a cursory reading of the Anti-Federalist Papers reveals that there was no agreement over the meaning of the words. So Originalism is Humpty Dumpty also. This false argument exposes one of the serious flaws in the Constitution: the lack of a list of definitions and examples for words and phrases that are used in the Constitution.

One thing that Reynolds brings up is the one man, one vote ruling by SCOTUS. It's pretty clear that SCOTUS erred by mandating that state senates must also conform to this rule. What's sauce for the goose is not necessarily sauce for the gander. And in my view the real problem with one man one vote is that the Constitution has another fatal flaw: it doesn't really differentiate between People and Citizens. During reapportionment, at the federal or state level, cities naturally get more representation than they should because they have more People. If apportionment was done by Citizens, then there could be no complaint. Reynolds is a little bit off in his argument.

Balfegor said...

Right to life for unborn persons found in expansive interpretation of the equal protection clause.

Isn't that the big one?

Chuck said...

buwaya said...
Every one of us is a hypocrite and a sinner and a con-man.
Some of us need to fool ourselves about our nature to get through the day.
Legal reasoning seems to me just a way to rationalize what the judge figures is the correct outcome, arrived at, most likely, unconsciously.


I can think of a couple of good examples that put the lie to what you say.

Justice Thomas, in his Lawrence dissent, called the Texas anti-sodomy law "uncommonly silly." He said that if he were a legislator, he'd have voted to repeal it. He drew that "uncommonly silly" phrase from Justice Stewart's opinion in Griswold v Connecticut, where the notoriously common-sense justice thought much the same of the Connecticut contraceptive law.

In both cases, the judges thought that silly laws were not violative of the Constitution. Stewart wrote, "But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do."


mockturtle said...

And Chuckles offers up another non sequitur.

Hagar said...

I do not understand Reynold's argument as it looks to me like every example of SCOTUS interpretations he mentions are examples of contemporary "living document" interpretations and no kind of "originalist."

Bay Area Guy said...

Here's an example of the right-wing equivalent of what the Left's judicial scholars have done:

1. "Persons" in the 14th Amendment, includes unborn babies. Therefore, state laws allowing abortion of these "Persons" violates their rights, and are unconstitutional.

2. "Persons" in the 14th Amendment, definitely includes minor children. Minor children have a constitutional right to life, liberty and the pursuit of happiness. Numerous academic studies show that divorced families, lead to great pathologies, and, worse, impingement on the minors' rights to pursue happiness. Therefore, state laws permitting divorce violate the penumbras of the 14th Amendment, and are unconstitutional.

Stuff like that.

buwaya said...

"Justice Thomas, in his Lawrence dissent, "

Its a dissent. He gets to write whatever he likes, and it doesn't matter, or not to anyone but a legal hobbyist.

Sebastian said...
This comment has been removed by the author.
Sebastian said...

"Another would be to decide that the administrative state — "a bloated bureaucracy with serious accountability problems" — violates separation of powers." Why do we need a "living" Constitution" to decide that?

Some more living constitutional slate-clearing I'd like to see: strike down substantive due process (and any use of due process that isn't about legal process), the unequal equal protection doctrine, the incorporation doctrine, all post-Wickard commerce-clausism, any precedent that mentions "privacy," and last but not least, any notion, explicit or implied, that the Supreme Court has the last and only word on the meaning of the Constitution short of formal Amendment.

Sebastian said...
This comment has been removed by the author.
Sebastian said...

Oh, and I forgot: strike down the notion that illegals are "persons under the jurisdiction" of the U.S. and therefore entitled to goodies like pubic education.

Balfegor said...

Re: Bay Area Guy:

I follow the logic of the first (it would be not so much state laws allowing abortion as the failure to apply laws against murder to the killing of unborn persons thereby denying them equal protection of the laws, i.e. a constitutional violation as applied).

For the second, I think that is harder, no? I don't think the Declaration of Independence creates legally recognised "rights", for purposes of the 14th Amendment, does it? I suppose with a "living Constitution" anything goes, but I think one ought to lay out the specific rhetorical path to the shadow and then the penumbra. Or is it the shadow of the penumbra? Haha.

Achilles said...

Meh.

Progressives are absurd hypocrites.

News at 11.

Rick said...

Why don't they worry about other progressives progressing us into a place that doesn't look like what they dreamed?

Why would they worry about it? They made the effort to march through the institutions and as a result they control the institutional certifications necessary to reach policy setting positions. By discriminating against non-leftists they ensure the overwhelming majority of those implementing policy favor their preferences. this was the entire point.

Personnel is policy.

Fernandinande said...

OGWiseman said...
As someone who has studied literary theory, the idea that any judge has access to the "framer's intent" is laughable to me.


Is your approach informed by various strands of Continental philosophy and sociology?

Article: During the New Deal era, the Supreme Court — after being threatened with “court packing” by FDR — endorsed a massive expansion of governmental power on the ground that it would lead to greater efficiency in the economy.

Those decisions should be overturned and the unconstitutional New Deal stuff finally done away with because the decisions were made under the influence of extortion.

Big Mike said...

During the last election the Democrats were pretty blasé about the repercussions of overturning Citizens United. Why shouldn't Roe v Wade be equally vulnerable? Sauce for the goose, don't you know?

C Stanley said...

2. "Persons" in the 14th Amendment, definitely includes minor children. Minor children have a constitutional right to life, liberty and the pursuit of happiness. Numerous academic studies show that divorced families, lead to great pathologies, and, worse, impingement on the minors' rights to pursue happiness. Therefore, state laws permitting divorce violate the penumbras of the 14th Amendment, and are unconstitutional.

Better still would be to frame it something like this:
Full time co-parenting responds to the universal fear that a lonely child might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both parents still live in the home there will be someone to care for the child.

Bay Area Guy said...

@Michael K,

The best comment on Insty is the one about geographic representation. Illinois and California are ruled by urban islands that wreck the rest of the state. New York could have a prosperous upstate from fracking if it was not for NYC dominating the popular vote.

All true. And, with the "one man, one vote" sloganeering, you move away from geographical representation to duplicative bicameralism.

In California, why do we need an Assembly and the Senate when they do exactly the same thing? (albeit with a bigger membership in the Assembly, 80 members representing 465,000 each, as opposed to the Senate, 40 members representing 931,000 each.)

It would be like converting the United States Senate into the House, and having two Houses.

Abolish bicameralism at the State Level, I say.

Bruce Hayden said...

@rcocean

- I agree about the possibility of including unborn, esp in the 2nd and esp 3rd trimester as deserving protection under the 14th Amit.

- ditto for giving more than rudimentary rights to illegals. Except that, outside the renegade 9th Circuit, they really don't have much in the way of Due Process rights right now.

- Affirmative Action would be easy. Justice O'Conner essentially set an arbitrary 25 year limitation on AA. Let Justice Thomas write the opinion - it would likely be short, sweet, and explicit: AA is discrimination based on race, and is therefore violative of Equal Protection. And throw in that any arbitrary time limit has now outlived its usefulness.

- Allowing states to geographically elect one chamber of their legislatures is more problematic. We can quibble about what "one man" means in "one man, one vote", but this is pretty basic Equal Protection. Weakening it here would likely have negative consequences down the road - for example justifying AA, or requiring federal oversight over half century old reappointment problems. My view is that we want pretty strong Equal Protection jurisprudence to rein in much of what the left/Dems have imposed over the last half century or so - much of their power is based on rewarding special interest groups, and that is vulnerable to EP attack.

exiledonmainstreet said...

"Can't read" has never been a disqualification for being a student of literary theory."

That's because anybody who has actually tried to read literary theory ends up like Renfield in "Dracula," sitting in a corner eating flies.

Left Bank of the Charles said...

What if? The so-called originalists are already doing just that.

Rick said...

OGWiseman said...
As someone who has studied literary theory, the idea that any judge has access to the "framer's intent" is laughable to me.


Framer's "intent" is not the standard. The standard is "original public meaning" as quoted in the article! We should all be laughing that some people are so determined to misunderstand they cannot even follow the basics.

As far as the specifics of that column, does Reynolds (or anyone) really support criminalizing birth control within a marriage? And in the same internet breath as LIMITING government power? Sheesh.

I've always found it amusing left wingers view themselves as defenders of freedom. We used to have freedoms based on the general limitation on government. But the left wrote that out of the constitution because it conflicted with their financial goals, substituting privacy to save the 2% of our former freedom they cared about. Bizarrely they conclude those against this substitution are believe government should be unconstrained.

Mythology is dangerous.

buwaya said...

"That's because anybody who has actually tried to read literary theory ends up like Renfield in "Dracula," sitting in a corner eating flies."

That is very, very good. I will tell my daughter. She has similar opinions.

EDH said...

As I just commented about the new Obama Bunker, Obama's choice of his post-presidency Obama-Bunker in the suburbs is another example revealing that the left think that street protests, like judicial activism, are one way streets always running in their favor.

They still don't understand that Trump is the Disrupter.

mockturtle said...

"That's because anybody who has actually tried to read literary theory ends up like Renfield in "Dracula," sitting in a corner eating flies."

And spiders. Don't forget spiders! [Shudder]

Gahrie said...

Kind of a weird idea. "Maybe a conservative judge will just make things up to go the way he wants." Who would do a thing like that?

Exactly...Conservative judges by definition are not activist judges, and it is activist judges who insist on twisting the meaning of words and the intentions of the writers in order to achieve a desired outcome.

Michael K said...

In California, why do we need an Assembly and the Senate when they do exactly the same thing? (albeit with a bigger membership in the Assembly, 80 members representing 465,000 each, as opposed to the Senate, 40 members representing 931,000 each.)

BAG, I agree. I assume the original plan was to make Senators represent counties, like US Senators represent states.

The US Senator was to be elected by the legislature, which makes good sense as the best embodiment of the state.

The Counties have supervisors but these are mostly jobs for life unless they aspire, like Barbara Boxer, to higher office.

The 17th Amendment was a Progressive issue sort of like Prohibition was. At least we repealed Prohibition.

Gahrie said...

As someone who has studied literary theory, the idea that any judge has access to the "framer's intent" is laughable to me.

Well the idea that judicial opinions should be subject to literary interpretation and theory is laughable to me.

Marty Keller said...

Steven Hayward examines this matter in a very thoughtful and useful way in his new book Patriotism Is Not Enough. He uses the disagreements between Harry Jaffa and Walter Berns on the meanings of "equality" and "liberty" to focus us on potential method by which to find concurrence in the light of all the "progressive" depredations against constitutional rule. Hence, patriotism is not enough.

Unknown said...

Can you add a "nothing" tag to this post? Seems apt.

Larry J said...

Rocketeer said...
Imagine how useful a collection of papers on the various aspects of federalism would be.

I want credit for a "Publius" reference above, dammit!


I got it but it might've been too subtle for a literary theory student.

Balfegor said...

I think we're being a little unfair to OGWiseman -- I don't disagree that, in an absolute sense, the intent of the framer's is unknowable. But law is dependent on a host of little fictions, without which it becomes mere arbitrary brigandage.

Ours is a representative democracy. We elect our legislators, and they draft and approve, on our behalf, written formulations of rules which we consider to be "laws." And of course, this rests on the fiction that our legislators know what rules they are seeking to implement through these imperfect, fuzzy words. We know that's not actually true -- firstly, that a lot of them don't read what they're signing anyhow, and secondly that the language itself is often fuzzy and imprecise. But let us pass over these difficulties.

If the written form of the law is subject to changing interpretation and reinterpretation as the years draw on -- in other words, if the written formulations no longer correspond to the rules our representatives approved in the first place -- then why did we bother reducing them to writing?

Fairness, no?

So that people can know what the rules are, and can adjust their conduct so as not to violate the law. And again, modern American law doesn't really live up to this ideal -- people sort of have to guess what is legal and illegal by drawing inferences from this judicial opinion and that, or by cryptic pronouncements from high bureaucratic functionaries, or just based on rumours about the whims and predilections of the particular men who have been given the power to prosecute and adjudicate. After all, there's so many things that are technically illegal that the government has made a deliberate decision not to enforce. But let us pass over these difficulties.

So where does that leave us? Our whole law depends on these fictions, for it to be something other than the cruel exercise of arbitrary power leavened by an absurdist exercise in holding up legal gibberish like a totem or a ward. The men in government have to believe that there is some meaning discernable in the law by which their power to do violence on us is constrained. The people have to believe that when their representatives approve the laws by which they are to be governed, that approval means something.

If we are to give in wholly to the idea that intent and meaning cannot be understood from the words, why keep old laws at all? Let every new Congress wipe the slate clean, and promulgate our laws afresh, modified according to their intention.

But that's not really practical, if we want to maintain our vast and all-encompassing administrative state, our mandarins, our numberless legions of secretaries and undersecretaries and deputy assistant vice-secretaries and heads of department and regional branch chiefs. So the alternative is this fiction -- that the intent of our representatives can be discerned, and that the meaning carries on, fixed and unchanged, across generations and centuries, per omnia saecula saeculorum, yea even to the breaking of the world.

rcocean said...

"Allowing states to geographically elect one chamber of their legislatures is more problematic."

Many States elected one their state legislature based on counties from the beginning of the Constitution until the SCOTUS decision in 1964. Needless to say, many of the state Senates that ratified the 14th amendment were NOT based on "one man, one vote" and they would've been surprised to learn they were voting for an amendment that would've changed their electoral process.

Further, the Warren decision overturned previous SCOTUS decisions which stated the nature of a state legislature was up to the various states to decide. Harlan, quite rightly, stated the EP doesn't apply to voting rights since the US Senate violates "one man, one vote">

buwaya said...

"But law is dependent on a host of little fictions, without which it becomes mere arbitrary brigandage. '

The next step is to understand that it IS mere arbitrary brigandage, and the little fictions merely obscure correct understanding.

"And of course, this rests on the fiction that our legislators know what rules they are seeking to implement through these imperfect, fuzzy words."

But the modern American reality is that the words no longer correspond to the rules.

"But let us pass over these difficulties."

But we cannot just pass over these difficulties - these are the actual problem, passing over these difficulties is avoiding the 500 pound gorilla at your tea party.

"for it to be something other than the cruel exercise of arbitrary power leavened by an absurdist exercise in holding up legal gibberish like a totem or a ward. "

But that is exactly what it is. To understand that is to understand reality.

Lewis Wetzel said...

Much of the progressive world view that forms the foundation for liberal judicial actions is based on the idea that we know what the moral environment of the future will be, and so we have a moral duty to assist that moral world to come to be. "Greater inclusiveness" of currently marginalized groups is an obvious example.
There are a couple of problems with this, noted only by conservatives, as far as I know.
-It is a disguised appeal to power ("We want this to happen, we have the power to make it happen, and so it will happen.")
-It denies human moral free agency ("This moral future is inevitable.")
-It is based on Hegel as interpreted by the marxist-leninists, who we now know were mistaken about how they saw the future of human morality.

Balfegor said...

Re: buwaya:

But that is exactly what it is. To understand that is to understand reality.

Dry the pool, dry concrete, brown edged,
And the pool was filled with water out of sunlight,
And the lotos rose, quietly, quietly,
The surface glittered out of heart of light,
And they were behind us, reflected in the pool.
Then a cloud passed, and the pool was empty.
Go, said the bird, for the leaves were full of children,
Hidden excitedly, containing laughter.
Go, go, go, said the bird: human kind
Cannot bear very much reality.

Freder Frederson said...

Framer's "intent" is not the standard. The standard is "original public meaning" as quoted in the article! We should all be laughing that some people are so determined to misunderstand they cannot even follow the basics.


Framer's intent or original public meaning, either standard doesn't get you far and is tossed aside whenever it is inconvenient. Look at the 2nd amendment--what is the original public meaning of "arms"? Certainly not semi-automatic or automatic weapons. Hell, the breech loader was barely known and didn't come into wide use until the mid-19th century.

Gahrie said...

--what is the original public meaning of "arms"?

weapons and ammunition; armaments.

So yes...it would include everything from cross bolts and arrows up to fully automatic machine guns.

buwaya said...

"Look at the 2nd amendment--what is the original public meaning of "arms"?"

Weapons of war. The framers were well aware of the evolution of arms and the techniques of warfare. They were classicists to a man, and the matter of bearing arms as a right, or duty, or of forced disarmament, is ancient. I have heard this objection and it seems an absurd bit of pettifoggery.

Static Ping said...

Being a conservative does imply there is something to conserve, which in this case is the Constitution and the Rule of Law that generates from thereof. A Living Constitution and conservative thought are at odds. It can be said that an originalist is naturally a conservative. If you want to change things, pass an amendment or at least get someone to pass a law legitimately.

Of course, conservatism could redirect the target of conversation from the Constitution to some prior form of society and try to conserve that, in which case the Living Constitution comes into play. It is very easy to enforce traditional values from the bench once unrestrained by nuisances like the Bill of Rights.

Let's be frank: a Living Constitution is basically an excuse to play king. Or queen. Or pope.

buwaya said...

"Look at the 2nd amendment--"

And of course an excellent example of the failure of words to retain meaning or control power. Anything can be argued around into its opposite if the power is there to impose the chosen meaning. Words are weak and are useful only when they don't too-inconveniently limit those who would rather not be limited. If it doesn't cost too much they can indulge the public, still fondly infatuated with words, and pretend the words are powerful.

Larry J said...

Freder Frederson said...

Framer's intent or original public meaning, either standard doesn't get you far and is tossed aside whenever it is inconvenient. Look at the 2nd amendment--what is the original public meaning of "arms"? Certainly not semi-automatic or automatic weapons. Hell, the breech loader was barely known and didn't come into wide use until the mid-19th century.


The rifles that some colonials had were equal to or even superior to the common military firearms of the day, such as the British "Brown Bess" which was a smooth bore (non-rifled) long gun. Smooth bore long guns were a bit faster to reload than rifles but much less accurate.

http://www.history-of-american-wars.com/revolutionary-war-weapons.html

Lewis Wetzel said...

Feder Fredersen wrote:
Look at the 2nd amendment--what is the original public meaning of "arms"? Certainly not semi-automatic or automatic weapons. Hell, the breech loader was barely known and didn't come into wide use until the mid-19th century.
Then no free speech on airwaves or on the internet. No modern printing presses either. And I can assure you, Fredersen, that the framers' ideas about what it meant to "establish" a religion were based on conflicts between the C of E, Scottish and welsh dissenters (aka today's "Evangelicals"), Quakers and Mennonites. The American public of the late 18th century barely took Catholicism into account, much less Judaism, Islam, etc..

Lewis Wetzel said...

If you actually take the trouble to read what Scalia wrote in the majority opinion in DC V Heller, you will find that he goes to great length to determine what the framers meant by "militia" and "bear arms." He references contemporary documents, similar in function to the constitution, that went into more depth than the second amendment in explaining the common meaning of these terms.

Sacto_Dave said...

Why don't they worry about other progressives progressing us into a place that doesn't look like what they dreamed?

I'm not sure they do a lot of cause and effect thinking. If they had been trained in high school and college to think in terms of if x then y, they probably wouldn't be good liberals. Most of them seem to use a pre-prescribed belief system (aka magical thinking)instead of breaking down a scenario and trying to predict all possible logical outcomes.

gadfly said...

We don't have "baby bust" we have an abortion explosion!

Rocketeer said...

Look at the 2nd amendment--what is the original public meaning of "arms"? Certainly not semi-automatic or automatic weapons. Hell, the breech loader was barely known and didn't come into wide use until the mid-19th century.

What utter bullshit. The founders didn't bat an eye at the notion of private ownership of warships, for crying out loud! Congress wasn't issuing Letters of Marque and Reprisal to men who owned punting boats, you ninny. Not to mention the fact that private citizens commonly owned rifles - far more technologically advanced and deadly than the musket soldiers of state armies were issued...

Balfegor said...

Re: Lewis Wetzel:

Then no free speech on airwaves or on the internet.

This is 100% consistent with Progressive's current political objectives. They hate the fact that people are allowed to speak freely on the airwaves (e.g. Rush Limbaugh) and on the internet (e.g. blogs, Donald Trump's twitter account).

Rocketeer said...

I see you beat me to it, Larry J...

Freder Frederson said...

Then no free speech on airwaves or on the internet. No modern printing presses either. And I can assure you, Fredersen, that the framers' ideas about what it meant to "establish" a religion were based on conflicts between the C of E, Scottish and welsh dissenters (aka today's "Evangelicals"), Quakers and Mennonites. The American public of the late 18th century barely took Catholicism into account, much less Judaism, Islam, etc..

And this contradicts my point how?

Rusty said...

Feder Fredersen wrote:
Look at the 2nd amendment--what is the original public meaning of "arms"?

Any weapon that a common infantryman might wield. IOW in today parlance anything short of a crew served weapon. To put it in more practical terms. Any weapon that a modern police office might be issued. That would include an M4.

buwaya said...

AR-15 = musket
Youtube channel = hand-cranked printing press
Islam = Quakers

Michelle Dulak Thomson said...

Gadfly, I don't think so; abortion levels remain high, but they're down quite a bit from their peak. What we have, instead, is a lot of people just not reproducing, offset a bit by immigration (the immigrants do reproduce). Still, we are just barely at replacement rate, even with immigration. Better than Europe, which is all below replacement rate, or Japan, which is even worse. In today's paper I read that China is mulling paying couples to have second children -- a bit different vibe from the recent days when second children were forcibly aborted.

And yet there are still letters to (e.g.) the SF Chronicle lamenting our exploding population. I see about one a week. Some people actually are still living in the 70s. And still believing Paul Ehrlich.

mockturtle said...

Althouse presents the dilemma and others see it clearly:

Conservative judges are not activists judges.
Liberal judges are [usually] activist judges.
Because of this, we the people are stuck with the contorted mess of radical opinions we have today. So Ann proposes the 'what if' conservative judges became activists and started skewing the law back to say, before the Warren Court?
But that is not the nature of conservatives.

Not very lawyer-ly but I'm no lawyer and I'd like to see a lot of decisions tossed out and re-argued based on a more doctrinaire view of the Constitution.

Sammy Finkelman said...

We had conservative justices move the constitution in their direction from about 1870to 1935.

buwaya said...

"Any weapon that a common infantryman might wield"

Back in those days you could own artillery.

Heck, even in heavily-regulated Spain and colonies where private ownership of pistols was banned in the 16th century private parties could own artillery well into the 19th century. My gggpa outfitted a ship with artillery to sail to Davao in 1847, and he bombarded a Moro Cota with them.
The naval militia of the Bicol provinces, banned from owning firearms to fight the Muslims, cast their own cannon and armed their fleet with grapeshot-firing swivel guns (under the leadership of the legendary mayor of Tabaco, Mang Esteban; my dad was from Tabaco).

Achilles said...

Unknown said...
Can you add a "nothing" tag to this post? Seems apt.

So do "DUH!" and "Liberal Hypocrisy" seem apt.

Freder Frederson said...

Any weapon that a common infantryman might wield.

So in your world, it should be legal to possess Stingers, Dragons, and SAWs. Good to know.

buwaya said...

"So in your world, it should be legal to possess Stingers, Dragons, and SAWs. Good to know."

Arguably. I have a proposal for squaring the circle on "well regulated militia"
Cheap handguns should be out.
Machineguns should be in. They are much safer and much less convenient for criminal purposes.
I would suggest state laws such that ONLY proper military weapons are permitted, to be inspected and certified for functionality by the National Guard.

This should scare everyone equally, pro or anti. But it conforms much better to the purpose.

Freder Frederson said...

Any weapon that a common infantryman might wield.

If you are truly into originalism, shouldn't it be any weapon a common infantryman from 1787 would use?

buwaya said...

"If you are truly into originalism, shouldn't it be any weapon a common infantryman from 1787 would use?"

See above re Youtube and freedom of the press.

Freder Frederson said...

Machineguns should be in. They are much safer and much less convenient for criminal purposes.

Yeah, tell Machine Gun Kelly that.

Freder Frederson said...

See above re Youtube and freedom of the press.

No, that would be an evolving standard. I don't know how a strict originalist could say the constitution has anything to say about regulating the airwaves. Pretty much have to stick to the printed press and un-amplified speech.

buwaya said...

"Yeah, tell Machine Gun Kelly that."

There weren't very many Machine Gun Kelly's. Thomson SMG's are very inconvenient.
There are hordes of characters with 9mm pistols in their droopy waistbands though.

buwaya said...

"No, that would be an evolving standard. "

No, that is a pettifogging standard. Or, perhaps, an autistic standard.

buwaya said...

Anyway, they knew what they were talking about. They had sanity and perspective.
We moderns seem not to have any of that.

They knew that "arms" in the days of the Roman republic meant swords and spears.
They knew that "free speech" in Rome meant yelling your head off in the forum.

They had more advanced technology than that, for the identical purposes.
We today have even better technology, but the purposes remain the same.

Freder Frederson said...

They knew that "free speech" in Rome meant yelling your head off in the forum.

Actually, in 1787 it was pretty much the same.

Saint Croix said...

I feel like the word "person" in the Constitution includes all human beings, including unborn human beings.

Nobody on the Supreme Court has said this.

So you could accuse me of having a "living Constitution" approach to jurisprudence.

(Pro-lifers will notice the play on words! Anytime a liberal says they believe in a living Constitution, we should agree and say there is no right to kill babies, our Constitution is a pro-life Constitution, a living Constitution, not a dying or killing Constitution).

Aside from the play on words, I have always considered myself a textualist who takes the words in our Constitution seriously. I do not think that judges should say that "process" means "substance," for instance. Nor do I think judges should say that "person" means corporations and does not mean babies.

My belief is that the equal protection clause has always protected all human beings. We fought, bled, and died to put this clause in our Constitution. Those lawyers or non-lawyers who cannot read the clause, or have no idea what a "person" is, should not have any power, in my opinion.

buwaya said...

"Actually, in 1787 it was pretty much the same."

No, in 1787 you would print up thousands of copies of your newspapers and pamphlets.
That was the high tech of the day, thats where the controversialists were controversial.

The Zenger case was probably the reason why thats in there -
https://en.wikipedia.org/wiki/John_Peter_Zenger

jrapdx said...

At 11:07 nn wrote:
"...
Liberalism is a divergent ideology.
Progressivism is monotonic change.
Conservatism is a conservation of state.
Principles matter."

"State" is ambiguous, could mean "the political state" or physical state, like the thermodynamic state of an object. Brings to mind Spinoza's basic idea, the fundamental obligation of every entity is striving to persist in its own essence.

Conservatism seeks to preserve functional systems, because continuing to function means life, not functioning is death. "Functioning" doesn't rule out repair and improvement, call it progress if you'd like, and in fact may demand it. But the continuity of functioning is essential. The biggest danger is breaking the thread that defines that "continuous".

"Progressive" ideology wishes to break the continuity just because of the restraint imposed by its preservation. The fact that dysfunction is the likely outcome of breakage is ignored, that's the risk that conservatives strive to minimize.

The progressive motto is akin to "throw out the bathwater, to hell with risks to babies". No kidding, it seems to apply all too literally.

n.n said...

jrapdx:

My point is that they are all terms of ambiguous quality with logical implications, hence: principles matter. I think that we can agree that there are times (i.e. frame of reference) when each concept can be defined as qualitatively good or bad.

n.n said...

Saint Croix:

We the People of the United States, ... and secure the Blessings of Liberty to ourselves and our Posterity

And "our Posterity" represents all of "the People"'s offspring. The Constitution identifies two parties to its contract: "the People" of the United States and "our Posterity".

It seems that short of actual spontaneous human conception, the government has been authorized to secure the rights of all Americans from natural conception to death.

Saint Croix said...

does Reynolds (or anyone) really support criminalizing birth control within a marriage?

no

although I think drugs should be regulated by the state for safety

for instance the first birth control pills had large amounts of estrogen

which has been linked to breast cancer

breast cancer rates have gone up dramatically since Griswold v. Connectucut

there are perhaps people in the FDA who think they have no authority to regulate birth control at all

and you will find partisans who say it is impossible for birth control pills to damage women

but of course any pharmaceutical can be damaging to your body

it's entirely possible

which is why many people (including me) think drugs should be regulated by the state for safety

if that makes me a "liberal" or a "Democrat," so be it.

they discovered the pill in 1960, if I remember right

several states had outlawed the pill, for safety reasons

that was the point of Griswold, to protect the manufacture of birth control pills and keep them from being regulated

if you're not worried about breast cancer, you might stop and think about taking a steroid that changes your brain

weird to me how our culture is so worked up about "steroids" if they are testosterone, but at all worried about estrogen steroids.

Saint Croix said...

needed a "not" in that last sentence

not at all worried about estrogen steroids

Sebastian said...

@SC: "I do not think that judges should say that "process" means "substance," for instance." Right. Even a living constitutionalist should be required to derive new life from old, instead of simply inventing stuff. Unless, perish the thought, the Living Constitution means anything the right people want it to mean.

"My belief is that the equal protection clause has always protected all human beings." My belief is that equal means equal.

Saint Croix said...

by the way, if you stop using birth control pills

your cancer risks decrease

similar to when you stop smoking

it's reversible

so just use condoms, if you want to use birth control

nice low-technology solution

and be ready for a baby you might be making

Saint Croix said...

My belief is that equal means equal.

You could apply the viability doctrine to born people.

But then you would have to kill the weak, the helpless, the handicapped, the old, and newborns.

More and more people would object to the rule, when it's applied to us.

That's the point of applying a rule across the board.

People see the evil of the rule.

By taking a class of human beings (the unborn), and applying a survivability standard only to them, we miss the evil of it.

Tom said...

We must stop amending the constitution via the SCOTUS - that's the root of this issue. There is a process for amending the constitution. It's really hard and maybe that should change. Or, if the court is going to continue its role, then maybe we need a check on it's power. Perhaps that 30 states can overturn a SCOTUS ruling by adopting a dissenting opinion. The only opinions that can't be overruled are unanimous decisions. That might work.

Roughcoat said...

In the early and middle years of the Roman Republic your average Roman citizen was typically, and by my lights, an altogether admirable fellow. This is one of my favorite times and places in human history, when Indo-European culture and society reached something approaching a sort of perfection; these were the "brave days of old,"as Macaulay put it. Most Romans, i.e. the pater familias and his family, were free-born smallholding farmers -- sturdy, stolid, hard-working, moral ... and maybe a tad too serious and stern as well, but I like that about them. Their watchwords were: pietas, dignatas, gravitas, virtus. Over his hearth, which was sacred to Roman homes, the man of the house hung his panoply: breatplate, shield, helmet, greaves, sword, and spear. Ready for use at moment's notices, passed down from father to son. It was not only his right to keep and, if needed, to bear arms; but also his duty as a Roman citizen. And that, as buwaya points out, is the tradition which produced our 2nd Amendment. A tradition worth upholding.

Sebastian said...

@SC: I wasn't disagreeing with you, you know, just adding on . . .

Saint Croix said...

What's so beautiful about equal protection

is that it's based on the golden rule

"do unto others as you would have them do unto you"

"apply the same rule to other people you apply to yourself"

not quite as good as the golden rule

Plato and Aristotle thought it was okay to walk away from a crying baby

on the grounds that Plato could always walk away from Aristotle

what's wrong with walking away from people?

But Jesus would have us imagine that we are in the baby's place

and ask what we would want done to us

this is why when Blackmun cites Plato and Aristotle for the viability doctrine

people get mad at his rejection of Christ

and his love of the BC era

a lot of mean shit in the BC era

including slavery and infanticide

ancient evils

I don't see Roe v. Wade as progress

more of a major step backwards

excitement over our new birth control discovery

sex for everybody!

and then they found out birth control doesn't always work

so they got sloppy and careless and brought back infanticide as a legal practice

Saint Croix said...

cool Sebastian, thanks

inspired a thought in me so I went with it

jrapdx said...

Definitely so, principles matter when they are grounded in reality, not mere abstractions or theories. The principles vetted by history and experience are likely to have value and constructive benefit. Policies based on ideas about the way things "should" be vs. the way they are will be orthogonal to effective governance.

While it's correct that there's no absolute "good" or "bad", so much hardship comes from difference in opinion about which is which. But I'd stick with the notion that evil is the destructive force we must oppose. By evil I mean the unprincipled exercise of power just because of having it. We see this infesting our government more and more in recent decades and it's exactly what we are asserting has to stop.

Lewis Wetzel said...

The use of the phrase "the press" to refer to printed speech (rather than a physical printing press) didn't become common until the 1830s or later. The 1st amendment meant freedom to print, e.g., unlicensed printing presses.
If you want to know where the bill of rights came from, look at English history between 1580 and 1750.

buwaya said...

Anyway, no words or law are of any use if you don't have the power to deter your enemies other than through the laws. If you do have some sort of balance of power then the law is a ceremonial proxy for a negotiation.

Your real problem is that your government and economy is structured such that much of the heavy money depends on controlling government, and the faction of the people opposed to this faction of the powerful is, simply, much less powerful.

Gahrie said...

If you are truly into originalism, shouldn't it be any weapon a common infantryman from 1787 would use?

No the Founders meant all weapons, including fully armed (with the best weapons available) and crewed warships. That is why they included:

"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;"

in Article I Section 8 of the Constitution. If private individuals could not own powerful modern weapons, there would be no one to award the letters of marque to....

You also have to remember that the original plan was to have no standing army, and instead rely upon a well armed citizenry to defend the nation.

Gahrie said...

"Any weapon that a common infantryman might wield"

The Browning automatic guns used by the Rough Riders in 1898 were privately bought.

The whole idea of "gun control" never existed in the US prior to the rise of organized crime due to Prohibition. It was once possible to buy a fully automatic Thompson through the mail from a newspaper ad.

Gahrie said...

So in your world, it should be legal to possess Stingers, Dragons, and SAWs. Good to know.

In the Founder's world it would include ballistic submarines and nuclear aircraft carriers. They fully intended that private citizens should own the most modern and powerful military weapons available. There were two reasons...first to defend the nation in case of attack. (There was to be no standing army) and secondly to oppose government tyranny.

buwaya said...

"The Browning automatic guns used by the Rough Riders in 1898 were privately bought."

These -

https://www.youtube.com/watch?v=04qRHe5X-Lk

Lewis Wetzel said...

One of the problems with Freder's "colorful" interpretation of the 2nd amendment is that it makes no sense contextually. The Bill of Rights is about empowering individual citizens and groups of citizens against the federal government. The bill of rights is about how the power of the federal government is restricted. It makes no sense to have a article in the bill of rights that says that the government can arm soldiers.

buwaya said...

There was a private arms dealer in New York who maintained a surplus inventory sufficient to supply whole Latin American armies.

http://www.guns.com/2015/11/07/bannermans-legacy-ultimate-army-navy-store/

Mark said...

Regarding pre-born human life, a "living constitution" jurisprudence from a traditionalist would likely say --

"However one answers the metaphysical or theological question whether the fetus is a "human being" or the legal question whether it is a 'person' as that term is used in the Constitution, one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being. [and that] the Court's choice of viability as the point at which the State's interest becomes compelling is entirely arbitrary."
-- White, J., Thornburgh v. American College of Obstetricians & Gynecologists (1985)

Mark said...

As to the Second Amendment, they would interpret it to include any weapon that might be deemed appropriate to effectuate its purpose, which is to secure the fundamental right of revolution against tyrannical government, as set out in the Declaration and just as the American people themselves did against the lawful government of George III, beginning with the weapons collected and stored at Concord, which that same government sought to seize and destroy.

Mark said...

They would recognize that life requires an animating Spirit, otherwise it is just ink on parchment, just a dead letter. It requires an animating Spirit, something greater and transcendent to itself, that is, a higher law than the whimsies of men, even men (and women) in black robes.

A "living constitution" requires adherence to a law of transcendent reason, a law of objective truth, a law that recognizes that we are endowed by our Creator -- not by man -- with certain inalienable rights, among them life, liberty, and the pursuit of happiness (rightly understood as the pursuit of a virtuous life) and that, accordingly, the true end of government is to better secure these rights, especially to secure them as against government. It would mean rejecting all assertions of legal or moral relativism, of the idea of relative truth, and that the rule of adjudication should be one of subjectivity, but instead a rule of ordered liberty, with due respect for the collected understanding, wisdom and tradition of the ages.

In short, it would be rejecting all the various ideologies and -isms of the last several decades.

Saint Croix said...

"However one answers the metaphysical or theological question whether the fetus is a "human being" or the legal question whether it is a 'person' as that term is used in the Constitution, one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being. [and that] the Court's choice of viability as the point at which the State's interest becomes compelling is entirely arbitrary."

Harry Blackmun circulated a memo acknowledging his points were arbitrary.

So simply arguing that they are arbitrary is pointless, when the people with whom you are arguing do not care to justify what they are doing.

What you do, if you are a serious man, is publish his memo for the world.

They don't do that sort of thing, because all of them care more about the Supreme Court--their source of power--and so when a judge or judges secretly admit they are being arbitrary and capricious, the weak football player simply runs away from the fight and gives a weak and helpless dissent.

Pathetic, Whizzer, that's why you are ignored by history. You failed to stop it, or even raise a stink about it.

Saint Croix said...

The use of the Latin word "fetus" is a tell that White has accepted the dehumanizing premise.

Doctors say "gravida" (instead of pregnant woman) and "fetus" (instead of baby) to create emotional distance.

Necessary if you're going to do surgeries on people.

It's not necessary for Supreme Court Justices to create emotional distance.

Unless you are defining the unborn baby as sub-human, as property.

In which case the word "fetus" is very helpful.

Like the word "negro."

White's participating in the dehumanization by his very language.

I think Scalia's dissent is weak sauce too, but he did us all one brilliant service--he ripped apart the semantical game. He always used the word "baby" or "child" as if he loved this unnamed, unknown infant. And for that we should all bless him.

Bob Loblaw said...

I have always believed "living constitiion" adherents would discover originalism if the constitution started living in a direction they didn't like, and I think conservative justices should push in that direction.

I caught a radio interview with Justice Scalia years ago, and he made the strongest point against a "living constitution" that I've seen: If you can redefine the words in your constition independent of the meaning, you don't have a written constitution at all. You just have a historical document of little significance.

HoodlumDoodlum said...

Ann Althouse said...That's similar to the way "progressives" feel complacently good about progress — visualizing it out there in the future as a place we want to go. How do they know we'll like it when we get there? Why don't they worry about other progressives progressing us into a place that doesn't look like what they dreamed?

That's close to Robert Wright's whole thesis in his book Nonzero: The Logic of Human Destiny. You should ask him about it sometime, Professor.

Gospace said...

Michael K said...
The best comment on Insty is the one about geographic representation. Illinois and California are ruled by urban islands that wreck the rest of the state. New York could have a prosperous upstate from fracking if it was not for NYC dominating the popular vote.


"Reynolds vs Sims" was wrongly decided. Which is why most urban area dominated states have a budget mess. Laws that make sense in NYC with 27,000/mi² often make little sense in Jefferson County with 92/mi². I can understand not letting people fire their guns in their backyards in NYC. I've got 8 acres, the smallest lot on my street. I've got plenty of room to safely practice target shooting. In NYC, the nearest police are probably within ¼ mile at any time- although their response time often doesn't reflect that. My town doesn't have a police department. County sheriff or state police might be somewhere in town, or maybe 5 towns away at any time. No way to know. NYC has professional firefighters. We have volunteers. There are a whole lot of statewide laws that make sense in NYC and Buffalo and Syracuse, that make zero sense in Jefferson and Wayne and Franklin Counties. But the people in Jefferson Wayne and Franklin Counties have no influence in drafting state laws because of "Reynolds s Sims".

Bad Lieutenant said...

To be fair, NYC has a lot of risk involved in the Marcellus Shale, because that area is the beginning of the Watershed that supplies New York with the water that 8 million drink daily. Best municipal water on Earth.

Now, you might get a billion dollars out of the ground in oil and gas, but then if you have to spend a billion dollars on filtration plants and the water tastes like the water in DC or Florida, the game hardly seems worth the candle.

So, I'm sympathetic to the exploitation of the Marcellus Shale (which apparently NY is only on the fringe of anyway), but there is another side to the coin.

Sammy Finkelman said...

buwaya said...

I would suggest state laws such that ONLY proper military weapons are permitted, to be inspected and certified for functionality by the National Guard.

The National Guard is the militia, but the National Guard Association's lobbying confused everybody in 1903. The national Rifle Association took over the second amendment argument from the National Guard Association around 1934.

Gospace said...

The National Guard is part of the militia, but is not the militia. Several states, New York among them, have organized state militia not part of the NG. And cannot be called into active federal service. Also, by law, and I'm not going to ascertain the ages are actually correct, all citizens between the ages of like 18 and 55 are members of the militia. Everyone. Used to be just males. And that's by federal law and also in most state laws.

welas asih said...

CARA MEMBESARKAN PENIS
CARA MEMPERBESAR PENIS
VIMAX PEMBESAR PENIS
OBAT MEMPERBESAR PENIS
OBAT MEMBESARKAN PENIS
RAMUAN MEMPERBESAR PENIS
RAMUAN MEMBESARKAN PENIS
VMENPLUS PEMBESAR PENIS
VIGRX PLUS PEMBESAR PENIS
OBAT PEMBESAR PENIS HERBAL

welas asih said...

PUSAT PEMBESAR PENIS, OBAT KUAT TAHAN LAMA, PERANGSANG WANITA, KOSMETIK, DAN ACCESORIES SEX P/W TERLENGKAP...!!

HAMMER OF THOR MAKASSAR
FOREX OBAT KUAT
HAMMER OF THOR BALI
HAMMER OF THOR BEKASI
OBAT KUAT VIAGRA
OBAT KUAT CIALIS

welas asih said...

CONDOM GETAR GERIGI
CONDOM DURI
CONDOM SAMBUNG JUMBO
PENINGGI BADAN
PENIS TEMPEL JUMBO
PENIS GETAR GOYANG
PENIS MUTIARA
PENIS IKAT PINGGANG

welas asih said...

BONEKA FULL BODY
VAGINA GETAR GOYANG
VAGINA CENTER
VAGINA NUNGGING
VAGINA NUNGGING
PENGHILANG TATTO
PENYUBUR SPERMA
VAKUM PAYUDARA

welas asih said...

PUSAT PEMBESAR PENIS, OBAT KUAT TAHAN LAMA, PERANGSANG WANITA, KOSMETIK, DAN ACCESORIES SEX P/W TERLENGKAP...!!


OBAT FOREX MAKASSAR
OBAT ANABOLIC RX24 MAKASSAR
OBAT HAMMER OF THOR MAKASSAR
OBAT VIMAX ASLI MAKASSAR
OBAT LINTAH PAPUA ASLI MAKASSAR
OBAT LINTAH PAPUA HITAM ASLI MAKASSAR

welas asih said...

PUSAT PEMBESAR PENIS, OBAT KUAT TAHAN LAMA, PERANGSANG WANITA, KOSMETIK, DAN ACCESORIES SEX P/W TERLENGKAP...!!

OBAT VIAGRA ASLI USA MAKASSAR
OBAT HAJAR JAHANAM MAKASSAR
OBAT VIAGRA ASLI AUSTRALIA MAKASSAR
OBAT CIALIS 80MG MAKASSAR
OBAT CIALIS 80MG MAKASSAR

Saint Croix said...

hey N.N.

I've never seen judges use or interpret the preamble before. Not saying they have not, just never seen it.

Good out of the box thinking!

I agree that we have an interest in future life, the life-of-the-baby who is to be.

We also have an interest in a clean environment, to give another example of protecting things for our posterity, or future generations.

The Supreme Court's abortion opinions have always recognized this, by the way. They talk about the future life of the baby, or the "potential life" of the baby, all the time.

They just say our interest in the baby's future life is outweighed by the mother's interest in her autonomy, right to control her body.

We could (of course) simply disagree with the majority and say the baby's potential life or future life outweighs the mother's right to control her own body.

There have always been people on the Supreme Court who love to use "balancing tests" because it gives them the romantic illusion that they are nice, moderate people.

I think it's helpful to shatter their illusions by pointing out to them they are saying "we don't know what a person is."

I think Blackmun's discussion of "person" in Roe v. Wade is easily the worst part of his opinion.

Pro-lifers should focus on that and keep that criticism first in our hearts.

Homicide is evil and wrong. It always has been and always will be.

Roe v. Wade itself notes that partial-birth abortion is punishable by life in prison in Texas.

It's the first footnote in the opinion.

By the time of Carhart, the "liberals" on the Court have gotten themselves into a position where they say that a crime punishable by life in prison is a unwritten "right" that cannot be outlawed at all, full stop.

It's like saying murder, or rape, is mandated by the Constitution and cannot be outlawed, ever.

This happened, in my opinion, because nice people could not bring themselves to accuse other nice people of killing a baby.

Mr. Kennedy finally lost his shit in the Carhart opinions.

Now he's gone back to being nice and polite and upholding Roe and, not coincidentally, his own opinion in Casey.

Let's just pretend like it didn't happen and nobody was killed!

I myself would not have asked my former boss to swear me in as a judge, because I would have formed an independent opinion that his Casey opinion is a disaster, and I would want to distance myself from that.

I think Anthony Kennedy and Neil Gorsuch are both very nice people, in the same way that Ruth Ginsburg and Nino Scalia were very nice people. All these judges are very nice people. They're all polite and sweet to each other. And they mean it, although I imagine it's a struggle sometimes.

There were very nice people who were slave-owners, too. Washington, Jefferson, Madison. Very nice people, very polite, very respectable, very brave. Our best and our brightest.

And yet they still participated in atrocities, and led us down that path.

I want somebody to ask this nominee if he knows what a person is. It's an important question to ask. And one that no judge should duck.

Saint Croix said...

Did not mean to use the past tense when describing Ruth Ginsburg as a nice person.

She's still a nice person.

She just has a moral blind spot.

Which is how nice people can do truly awful things.

None of us are immune to this.

Rusty said...

Freder Frederson said...
Any weapon that a common infantryman might wield.

So in your world, it should be legal to possess Stingers, Dragons, and SAWs. Good to know.

When I was in Switzerland ,oh, thirty years ago it was a real eye opener to see three teenage boys dressed in their best punk outfits lugging a heavey mchine gun through the train station. They were on thier way to do their maditory military service.

In the real world Freder I can already own squad automatic weapons, artllary peices, drones, tanks, etc. All I need to do is pay a special tax.

Want to feel outrage? Google Knob Creek Machine gun shoot.

It is perfectly legal for anyone to own a gattling gun without any specil permission from anybody. Scary huh.

The militia, freder, acording to the laws of the United States, are all citizens between the ages of 18 and 55 who have their own arms. Wouldn't it be reasonable to think, and I do believe SCOTUS has addressed this, that if one is going to have an armed militia that they at least have the regulation equipment that any infantryman would have? Does that make sense?

Rusty said...

The National Guard is the militia,

The National Gaurd is separate from the militia according to the militia act of 1903.

CStanley said...

I have always believed "living constitiion" adherents would discover originalism if the constitution started living in a direction they didn't like, and I think conservative justices should push in that direction.

Just as they are currently rediscovering federalism and even secession is being floated. Seems like just yesterday that federalism was a dog whistle to racists and hints at secession were treasonous.

Todd said...

Gahrie said...
"Any weapon that a common infantryman might wield"

The Browning automatic guns used by the Rough Riders in 1898 were privately bought.

The whole idea of "gun control" never existed in the US prior to the rise of organized crime due to Prohibition. It was once possible to buy a fully automatic Thompson through the mail from a newspaper ad.

3/2/17, 6:21 PM


MAN! Those were the day!

Fernandinande said...

buwaya said...
There was a private arms dealer in New York who maintained a surplus inventory sufficient to supply whole Latin American armies.


Cool catalog!

A friend of mine inherited > 3,000 guns including a Japanese howitzer, a couple of hand-grenades, a 1500's Spanish cannon and a .90 cal revolver. His dad used to supply guns to the Mexican police.

DanTheMan said...

>>And this contradicts my point how?


What is your point? If you are saying that the 2nd amendment only applies to 18th century arms, then, as many others have pointed out, you are suggesting that the 4th amendment, for example, does not apply to your car, or a house built with concrete block?

That's their point. Yours, I honestly don't see.

Todd said...

As others have indicated, US citizens may own all sorts of "war munitions" even today. Folks own Sherman tanks (as an example) with live rounds. Each round must be individually acquired (to include the $200 tax stamp) but if you have the funds and are not a "prohibited person" there is not much you can not legally own.

The greatest "failure" of the Reagan administration was his signing of the Firearm Owners' Protection Act of 1986 (FOPA) while leaving in place the extension of the definition of "silencers" to include parts and the full-auto arms "poison pill" that restricted civilian ownership of full-auto arms to those created AND lawfully owned prior to the signing of the law.

It is rumored that Trump will "fix" the first by taking "silencers" (actually suppressors is more accurate) off of the NFA list thus allowing any non-prohibited person the ability to acquire one from any FFL as they would a hand gun.

It would be nice if he could also do something about the second. There is NO reason a full auto Ruger 10/22 should cost $10K versus $250 plus $5 in parts...

Rusty said...

ernandinande said...
buwaya said...
There was a private arms dealer in New York who maintained a surplus inventory sufficient to supply whole Latin American armies.

Tha Bannerman Company. Their warehouse was an island in the Hudson River.
Their catalogs are still sought after.