April 8, 2017

"I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of 'sex discrimination' that the Congress that enacted it would not have accepted."

"This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963–1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught."

Wrote 7th Circuit Judge Richard Posner, in Hively v. Ivy Tech Community College, which interpreted the 1964 Civil Rights Act to bar discrimination based on sexual orientation (by viewing it as sex discrimination).

Quoted in "The post-constitutional world of Judge Richard Posner," by Antonin Scalia Law School professor David Bernstein. The dispute about statutory interpretation is characterized as a constitutional problem on the theory that a court that gets too creative with its statutory interpretation is acting like a legislature and that ought to count as a violation of separation of powers.

118 comments:

AlbertAnonymous said...

Poznet jumped the shark along time ago...

AlbertAnonymous said...

Pozner

tim in vermont said...

Yes,the whole machinery of democratic government is just too wearisome, it's not that we want to usurp the process!

Lucien said...

Posner has become a walking advertisement for eliminating life tenure.

Owen said...

He is just so much smarter than Congress ever was. We can safely leave to him the wearisome task of making shit up.

Gahrie said...

Well at least give Posner credit for being honest about his intentions, unlike the rest of the judicial Left.

Compare his stance on the role of judges and courts with that of Gorsuch.

buwaya said...

In matters closer to where all the $ are, in economic regulation, this sort of thing goes on all the time. It doesn't matter very much at all what was signed into law. And its interesting who gets to make these changes.

The Drill SGT said...

I have no problem with the courts interpreting laws that applied to horse buggies as applicable to Model A's. Times change, functions remain. However, when it is a situation where the concept of sexual orientation clearly existed at the time the Congress passed the Law, and Congress did not include it in the list of protected classes, perhaps they purposely left it off rather than accidentally.

see "Waters of the US", or "Clean Air Act"

rhhardin said...

It's not separation of powers but that we don't get to vote for judges.

Robert Cook said...

"It's not separation of powers but that we don't get to vote for judges."

Sure we do...by voting for the persons who will appoint judges.

Bill, Republic of Texas said...

Posner shouldn't be so modest. Why not relief the legislature of all the burden? He should follow the lead of his Venezuelan brothers and just outlaw Congress.

It looks like time for impeachment. The courts are out of control.

Fernandinande said...

AlbertAnonymous said...
Poznet jumped the shark along time ago...


Poznet became self-aware at 2:14 AM ET, Aug 29.

Saint Croix said...

It's not knowing what a "person" is that gets you in trouble.

That's what separates the slave-owners, the Nazis, and the baby-killers from the rest of us.

You can play all sorts of games with semantics.

But kicking human beings out of humanity? That's the line you should never cross.

Gahrie said...

In other words, Posner and the left believe in take(ing) any statute and twist(ing) it to mean whatever it would need to mean to allow them to bestow victory on any party the judge feels empathy with.

Which Althouse has disagreed with.

However, when it comes to Constitutional Amendments, Althouse feels that judges should take any amendment and twist it to mean whatever it would need to mean to allow them to bestow victory on any party the judge feels empathy with.

How else does the 14 Amendment create birtright citizenship and sexual privacy?

Owen said...

Buwaya: "... in economic regulation, this sort of thing goes on all the time." As noted in Calsbresi's book, Congress has given courts slack to apply antitrust law to the latest forms of cartel or monopoly in a field of economic activity that never stops evolving. It is not clear that Congress gave courts quite that much leash, that they could just redefine (or indeed invent) protected classes in the Civil Rights Act.

I admire Posner's candor, but I find his arrogance quite unpleasant and even terrifying.

Ken B said...

One assumes that Posner might happily rule that firing people for having sex at work is sex discrimination.

readering said...

He wrote a concurrence no one joined. Dissent by one of judges on Trump's short list for SCt.

David said...

eadering said...
He wrote a concurrence no one joined


your average concurrence

David said...

Centuries don't teach anything, even metaphorically. They relieve us of memory, which is the opposite of teaching.

Bill, Republic of Texas said...

One assumes that Posner might happily rule that firing people for having sex at work is sex discrimination.

Is that wrong? Should I have not done that? I gotta plead ignorance on that .

Diogenes of Sinope said...

Fiat law by unelected authoritarian left wing judges who don't like representative governance.

Hey, it's crazy to leave legislation to the hoi polloi's political whims.

Michael K said...

Posner is weird. I believe he is the Appeal Court judge who reinstated some charges against Conrad Black that a jury had found him not guilty on.

Interestingly enough, Black had Miguel Estrada as his attorney.

The whole Black case was another abuse by the same Patrick Fitzgerald who went after Scooter Libby.

Posner resurrected counts that sent Black back to prison for two years.

Black also speaks harshly of Appeals Court Judge Richard Posner—“a babbling lunatic” and “a rubber stamp for the prosecution”—whose resurrection of two counts sent Black back to prison to serve out an additional seven months. Here’s an edited transcript of our conversation:

I've read Black's book on the experience and it does not inspire confidence in US justice.

Michael K said...

Seven months, not two years.

Birches said...

What Gahrie said at 8:51.

Be honest and let the people decide which judicial philosophy they'd rather have on the bench.

ddh said...

It's a wonder that some creative judges haven't abolished the 50 states, the territories, the US Senate, and the Electoral College because they violate our rights to live under the exact same laws and to have each of our votes carry equal weight, as put forth in the 14th amendment. God forbid that we suffer constitutional obsolescence or place the entire burden of amending the constitution on the legislative branch and the states.

Jack Wayne said...

Hamilton, Madison and Brutus all agreed that the Courts SHOULD rule on the intent of the law in order to help Congress. That was in the early days when they didn't know just how far the courts would go to determine intent. But what can we expect from our poorly written Constitution?

Big Mike said...

So now it's up to the legislature to slap down Posner and his cronies by amending Title VII appropriately. That's a bit harder than Posner giving a big one-fingered salute to Congress, isn't it? So things are not st all symmetrical, are they?

Sam L. said...

Posner is the Caterpillar in "Alice In Wonderland".

Dust Bunny Queen said...

It is as if the judge(s) look at an older statute and decide that the original meaning, time and reason for the law no longer applies because...reasons and feelings.

"No no no. This won't do. We must change this law to reflect our feeeeelings and how we thing today. WE know best. WE are all powerful all knowing Oz like beings......So we will rule on this statute. Keeping it in place, perhaps, but changing it in ways that it no longer IS the same statute.!" TA DAH New penumbras!! New nuances!!! New privacy rights !!!!

In essence the are re-writing the law and changing it from the original intent. A clear violation of the separation of powers.

I don't think that laws never need to be changed or that they never become obsolete as time and society changes. HOWEVER, the repeal and replacement of law is why we have Congress and a President to approve or veto those laws. People elected by the the people and not appointed lifetime holier than thou prune faced judged who are unaccountable to anyone.

Lifetime judge appointments is a travesty.

HoodlumDoodlum said...

Co-equal branches are for losers. Old losers-it's out of fashion.
What do we really need a legislature for, anyway? A President and his agencies can make the rules and a judiciary can update existing "laws" as needed. Done.

Owen said...

Michael K: I had not known this about Posner and Conrad Black. It sounds sickening.

If there is any part of statutory law that needs to be construed narrowly, it's the criminal law. Due process requires due notice, so you cannot just invent a crime from the bench. Due process also means repose and deference: when the trier of fact (jury) has found in favor of the defendant then, absent some rare miscarriage, that is fucking well that. I say this broadly, not pretending to be a practitioner of criminal law.

Posner was IMHAIO (in my humble and ignorant opinion) best on antitrust and other "pure economic" cases. That and his six-sigma intellect went to his head. I think now --especially in light of the Black matter-- he's a positive danger.

Dust Bunny Queen said...

Woah....typos :-(

Need...more....coffee.....

Gahrie said...

Lifetime judge appointments is a travesty.

If they are impartial jurists who follow the intent and text of the laws, I support lifetime judges.

If they are activists who twist laws to mean whatever they would need to mean to allow the judges to bestow victory on any party they feel empathy with, not so much.

Lucien said...

Posner has a piece up on Slate today about post-filibuster SCOTUS justices. He argues that with about 1,000,000 lawyers, the top 1% would be about 10,000, so it stands to reason that the 9 justices are not the 9 best lawyers in the country.

It never seems to enter his mind that: a) the skills we need in the justices are judging skills (or even small-group dynamics skills) instead of lawyering skills; or b) that maybe not all SCOTUS justices have to be lawyers.

dreams said...

I like Conrad Black, he is yet another person who was sent to prison for a supposed crime that most people couldn't understand, including the juries.

Angel-Dyne said...

Owen: I admire Posner's candor, but I find his arrogance quite unpleasant and even terrifying.

The candor just tells us that we've reached the stage where the perps feel secure enough in their victories that they can entertain themselves by taunting us with insultingly transparent casuistry in "defense" of their power grabs.

Owen said...

Lucien: "...He argues that with about 1,000,000 lawyers..." I think this is not a new argument for Posner. He is quite taken with his elite status.

To your point, no, the "9 best lawyers" are not necessarily the best picks for the Supreme Court. Defining "best" is a hopeless task anyway: won the most cases? Trial or appellate? Put the most people behind bars for the longest time? Published the most articles? Recovered the most damages? Made the most money? Got "Most Amazing" prize from the tabloid survey of jurors, law clerks, patent agents, professors?

I strongly suspect that Posner would use as his criterion "published most articles."

He is very smart. I don't think he's very wise.

Dust Bunny Queen said...

@ Gahrie

Re: lifetime appointments. I agree with you, obviously. However, how are we to know the difference between impartial jurists or activist jurists before they are appointed. They can lie. People can also change once they are on the bench. Power can go to your head and people can become corrupted.

Without any ability to review and replace judges, we are stuck with some of these people for life. No recourse...other than perhaps unfortunate accidents. Hypothetically, Ginsburg could have an "accidental" slip and fall. Hypothetically speaking :-|

On the other hand.....the ability to willy nilly remove judges can be a problem too. As regimes change it would be tempting to remove all of the judges with whom you don't agree. Obama could do a purge. Trump could do a purge. Stacking the courts with jurists that will bend to the changing political will in power at any moment in time.

Both prospects are not very savory.

readering said...

Which of the folks here attacking activist judges disapprove of Trump attacking Assad's airfield without Congress declaring war against Syria?

hombre said...

Poster has become a shameless judicial oligarch well past his "use by" date.

Angel-Dyne said...

readering: Which of the folks here attacking activist judges disapprove of Trump attacking Assad's airfield without Congress declaring war against Syria?

This one. I can think of a few other folks here who probably feel the same.

(I'd probably disapprove of it even with Congressional approval.)

readering said...

Confident Miguel Estrada could articulate double jeopardy if his client convicted after jury acquittal.

Gahrie said...

Which of the folks here attacking activist judges disapprove of Trump attacking Assad's airfield without Congress declaring war against Syria?

The difference is, the president is supposed to be an activist. The energy of the government resides in the Executive branch. The president is also political, and there are political remedies for his excesses.

The Court is not supposed to be activist, and is supposed to be non-political.

Owen said...

rendering: "...Which of the folks here attacking activist judges disapprove of Trump attacking Assad's airfield without Congress declaring war against Syria?"

Very clever. It helps to have zero understanding of the differences among the three branches and the nature of statecraft.

It also ignores the fat body of recent precedent by President Obama, who bombed whatever he felt like without so much as a by-your-leave.

It also changes the subject from the one that was posed, namely Posner and his interesting theory of judicial interpretation as it interacts with the Constitution's allocation of power among the branches of government.

But, apart from that, thank you for playing.

Owen said...

Dust Bunny Queen: "...Obama could do a purge. Trump could do a purge." Like the one now well underway by Maduro in what used to be Venezuela.

Lifetime tenure may be the least bad system. It depends IMHO on the larger system in which that feature is embedded, and on the vigor and honesty with which everyone in the system plays out his or her part. A raft of Posners facing a vigorous and committed Congress is much less problematic IMHO than a single Posner rewriting the work of a supine or ignorant legislature.

hombre said...

Blogger readering said... "Which of the folks here attacking activist judges disapprove of Trump attacking Assad's airfield without Congress declaring war against Syria?"

Illogical lefty blather. Oblahblah's legal team long ago determined such attacks to be legal (somehow). For Obamadupes then the question should be the wisdom, not the legality, of the attacks. The hypocrisy of readering's question would go unnoticed in the comments section of the NYT or WaPo. Not here.

Steve M. Galbraith said...

Posner is an embarrassment but at least he's being honest: judge made law, constitution and statutes be damned. He's admitting that that's what they're doing. He's not trying to twist the words of the Civil Rights Act to cover sexual orientation.

So, Judge, what's the limiting principle? Anything goes? Platonic guardians? If you judges can ignore the Constitution you can certainly ignore lesser laws. So what exactly do you base your rulings on? Where do you get the understanding of what is the right thing to do? From public opinion polls? From what other judges believe?

BDNYC said...

Posner is smart, but not nearly as smart as he thinks, which makes him a bad judge. A good judge just needs to be smart enough, as well as humble and workmanlike.

Michael K said...

I like Conrad Black, he is yet another person who was sent to prison for a supposed crime that most people couldn't understand, including the juries.

The irony in the whole case, and I have forgotten some details, is that after he sold the properties, the plaintiffs who accused him ran them into the ground such that they ended up worse after the case than they had been before it was brought.

Had they just run the business, instead of trying to accuse him of cheating them, they would have been better off.

Fitzgerald was just harassing Black and there was no more crime involved than there was with Martha Stewart.

traditionalguy said...

I like Venezuela's approach. The Supreme Court there just ruled the Legislative branch unconstitutional.

Dust Bunny Queen said...

Owen said: Lifetime tenure may be the least bad system. It depends IMHO on the larger system in which that feature is embedded, and on the vigor and honesty with which everyone in the system plays out his or her part.

Agreed. If you have three branches of government and two are just loafing along, not doing their jobs, you will end up with an imbalance of power.

It is difficult and uncomfortable to make some decisions. Unpopular decisions. Decisions that more or less 'upset the apple cart' (there is an old idiom). So...our Congress Critters take the easy way out and let the judiciary make those unpopular or dicey decisions. Easier because they can shift the blame and continue to try to get re-elected.

Because Congress has for decades been derelict in its duty and the Executive branch has either been, in various swings, derelict or seizing power that belongs to Congress, the balance of power intended by the Framers has been sadly out of wack.

Until Congress grows a set of balls. Until the Executive exercises proper power, not acting like Obama as a dictator. Until the Judiciary steps back from activism....... the system of government that we have had is in dire jeopardy going forward.

I am not hopeful.

readering said...

Posner weak on effect of elimination of filibuster for SCT appointments. The key development was refusal of majority to consider nominee from other party even when all would agree them nominee fit the description of a moderate. At that point message received. Compromise pointless. Just wait until Senate and Executive controlled by same party. Republicans last Fall telegraphed that if they held Senate they would vote down any Clinton nominee.

Gahrie said...
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Gahrie said...

The key development was refusal of majority to consider nominee from other party even when all would agree them nominee fit the description of a moderate.

No..there is ample precedent for this.

The key development was the Left's scorched earth tactics in opposing Republican appointments beginning with Judge Bork.

Birkel said...

@ readering

The Republicans considered Garland. He was rejected. That you would have preferred a different manner of rejection is silly.

readering said...

Bork was 30 years ago. What was interesting about Bork was that Democrats in majority felt need to justify no votes. Last year Republicans just counted votes, no justification needed.

Michael K said...

The key development was refusal of majority to consider nominee from other party even when all would agree them nominee fit the description of a moderate.

No, that is a DNC talking point. Give it up readering. You LOST !

Gahrie said...

Last year Republicans just counted votes

No they didn't. There was no voting on Garland. The Senate just refused to act on his nomination, as they have done at least a half dozen times in the past, including before the creation of the Biden rule.

MaxedOutMama said...

Well, I guess one's take on this depends on one's assessment of the degree of creativity.

My strong opinion is that when the courts have become an adjunct branch of Congress, they are being too creative by far.

I do utterly applaud Pozner's honesty by phrasing it this way. I also concede that courts are forced to some degree of statutory interpretation. But when that degree of statutory interpretation leads to changing definitions of the words in the law, they are acting as a legislature.

The counter-argument to my interpretation would be that Congress could act to override the court's interpretation of the law if it does not like the result. But that changes the balance of powers written into the Constitution in a very real way, and I do not think it should be done. It is a very different political step to pass legislation mandating the same protections for transgenders as for biological males/females, and to pass legislation removing those protections. For one thing, the second is more harmful to transgenders, and I don't think anyone wants to harm them. It's a question of not letting these individual problems do much harm to society.

The substitution of "perceived gender" for biological sex, as defined by the legislature in the original civil rights legislation, is too much creativity IMO. It has now set up conflicts in those laws themselves - laws that were intended to protect women's rights to equality in sports programs, for example. It's a hot mess.

In addition, the legal destruction of the biological definitions of sex has created the necessity to draft women! This is a prime example of the damage courts can do by trying to "fix" the laws.

Mike Sylwester said...

Speaking of judges, I have been imagining a scenario.

Let's suppose that Justice Ginsburg had complied with all the good advice that she retire while President Obama was still in office. Let's suppose further that Obama nominated a judge during 2016 to fill Ginsburg's seat.

Now let's suppose that Mitch McConnell had followed the Biden Rule and thus refused to permit any hearings on that nomination.

If that had happened, then imagine the Democrats' fury.

Anyway, what really did happen was that Ginsburg refused to retire. In 2016 she was 83 years old and had served more than 22 years on the Supreme Court -- but that was not enough for her. She refused to retire so that some younger liberal judge could enjoy an opportunity to serve on the Supreme Court. Ginsburg was greedy to maximize her own tenure, and she was 100% certain that Hillary Clinton would be elected President.

Ginsburg was a fool.

Sebastian said...

"The dispute about statutory interpretation is characterized as a constitutional problem on the theory that a court that gets too creative with its statutory interpretation is acting like a legislature and that ought to count as a violation of separation of powers."

The Posner Putsch is covered by the Jordan/Sebastian treatment of Dicks in another thread.

readering said...

Ginsburg I believe was influenced by O'Connor who retired, was replaced by someone much more conservative than herself (Alito) and it turns out was still fit to serve a decade later. And Stevens, who ignored many calls to retire, until 90, and he's still going strong at 96.

The Godfather said...

The difference between Posner and Anthony Kennedy is that Posner is candid about acting as legislature and Kennedy dazzles us with his bullshit.

Steve M. Galbraith said...

Where exactly does Posner think he has the authority to rule like this? Where is this power given to him? It can't be the Constitution since he thinks that's an antiquated document that is unreadable by today's standards. Ditto for statutes.

Judges take an oath to uphold the Constitution. What is that for? But if there is no Constitution - time has made it disappear - then where does he get the authority to rule like this? Indeed, to rule on anything, hell, even to be a Article III judge?

Carrying out is view of language necessarily means that Judge Posner does not exist.

readering said...

Poster writes whole books in answer to your question.

Gahrie said...

Poster writes whole books in answer to your question.

All it should require is a sentence.

tcrosse said...

The Republicans considered Garland. He was rejected. That you would have preferred a different manner of rejection is silly.

How about if the Republicans had filibustered Garland, as the Dems did Gorsuch ?

Static Ping said...

I was wondering when Ann was going to drop this one.

I would say "You want more Trump? This is how you get more Trump!" However, this is more like "You want a civil war? This is how you get a civil war!" When the people lose faith in the legitimacy of government, there is no reason to continue to respect it other than force.

In another universe, Posner's statement here would be a stealth undermining of the decision, making it obvious to all that will pay attention that the courts are attempting to create a tyranny of the robes. The sad thing is he probably means what he says and thinks it is a good idea.

Static Ping said...

tcrosse: How about if the Republicans had filibustered Garland, as the Dems did Gorsuch ?

Presumably they wouldn't need to. They would have simply voted him down, as which happened with Bork after their slandered him sufficiently.

readering said...

Only minority filibusters. Majority votes after debate. But McConnell didn't trust debate.

readering said...

Democrats didn't slander Bork. He went on to write several books validating what they said about him. I say this as someone who met him and found him completely charming as well as impressive as hel l. But that was ten years earlier.

Yancey Ward said...

Posner, of course, is stating the obvious. The court long ago took unto themselves the legislative function, and pretty much with the apathetic acquiescence of Congress. The same has been done by the more or less permanent bureaucratic state in the executive branch. My theory is that this is due to the inequality of tenure that exist between these three parties- judges and bureaucrats have basically lifetime tenure while Congresscritters have to stand for reelection every two to six years. The latter have an incentive to abdicate their responsibilities in many cases.

Bay Area Guy said...

Memo to Federal Judges:

Don't try to save the world. Don't try to shape policy. Don't try to vindicate "rights". Be humble. Be modest. Be faithful to the Constitution. Understand the two concepts of Separtion of Powers and Federalism.

If you can't restrain yourself, then don a military uniform and go fight, or abandon the robe and run for Congress.

That is all.

The Toothless Revolutionary said...

So what. In 1791 the Founders would not have supposed that the "arms" borne by the well regulated militia would have included AR-15s. Yet, there you have it. So-called "originalists" are opportunistic nutsacks. Interpretations expand as the technologies and societies through which we express our rights evolve. Get over it.

h said...

A lot of commenters here are reflexively blaming Posner as a "liberal activist" and I don't think he is one of those. There are certainly a lot of conservatives who would blanche at an originalist interpretation of (say) the first or second amendment that argued that government restrictions on internet speech or automatic weapons are not constrained by thosey amendments because the original authors of those amendments were not familiar with internet or automatic weapons. And I don't think Scalia (or any other thinker who believes we should rely on the plain meaning of words as they would have been understood at the time they were written) would make that kind of originalist argument. Rather Scalia (or any other ...etc.) would agree with Posner.

Is the "we need to update meaning to reasonably apply to modern situations" argument only objectionable when it applies to sexual orientation? Or when it's used to reach a conclusion you don't like?

Owen said...

Toothless: "...In 1791 the Founders would not have supposed that the "arms" borne by the well regulated militia would have included AR-15s." And you know this, how?

I guess I missed that memo.

Owen said...

h: "...Is the "we need to update meaning to reasonably apply to modern situations" argument only objectionable when it applies to sexual orientation? Or when it's used to reach a conclusion you don't like?"

I think several commenters up the thread tried to tackle this, somewhat. Interpretation is an art. That doesn't mean it's a purely subjective free-for-all, but it also means it's not mechanical.

I don't have a strong answer except to say, it depends. Context matters. You want to look at the words and the precedents. You want to look at the impact on the litigants and on the rest of us.

Posner made his bones doing economic analysis, antitrust, which is not really Constitutional law, it's looking at statutes that have a history of being applied with some "stretch" to circumstances that constantly evolve. A market and the ease of entry may appear, become important and then shrink and vanish, replaced by another; a court that couldn't adapt its rules to policing that dynamic environment would fail in its task.

But issues about discrimination among citizens on the basis of some feature? That's pretty basic stuff. That should not easily be altered. That should attract the most careful consideration of smart and responsible lawmakers accountable to their constituents. That is emphatically NOT (IMHO) where a judge should just...make shit up. Because, hey, 50 years and stuff is somehow different, there are all these Tweets that say so.

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

So what. In 1791 the Founders would not have supposed that the "arms" borne by the well regulated militia would have included AR-15s.

Sure they would have, if AR-15s had existed back then.

There are three things you have to remember about the Right to own a weapon.

The first is that the Founders fully intended that private citizens be allowed to possess and use the the best available military weapons, including fully crewed warships with the latest naval weaponry. This is why Letters of Marque and Reprisal are discussed in the Constitution. If there was no expectation that private citizens could arm themselves, there would be no need for such letters.

The second is that the Founders intended that there would be no standing army, and that instead an armed citizenry would defend itself while an army was organized in case of an invasion.

The last is that the Founders believed that the citizens of the United States had the duty to overthrow an oppressive government, and could only do so if they were armed with the latest in military technology.

The Toothless Revolutionary said...

And you know this, how?

Because they didn't exist.

I guess I missed that memo.

The dog ate your homework?

Gahrie said...

A lot of commenters here are reflexively blaming Posner as a "liberal activist" and I don't think he is one of those. There are certainly a lot of conservatives who would blanche at an originalist interpretation of (say) the first or second amendment that argued that government restrictions on internet speech or automatic weapons are not constrained by thosey amendments because the original authors of those amendments were not familiar with internet or automatic weapons.

You have a distorted view of originalism. An originalist would understand that the Founders would see the internet as an extension of the press. (The word "press" in the First Amendment refers to the tool, not to a group of people as it does today)

An originalist would also realize that automatic weapons would be, and were, allowed under the Second Amendment. The Second Amendment protected the private ownership of the latest military technology. In fact you could buy fully automatic Tommy guns from newspaper ads through the mail until Prohibition led to the Mafia.

The Toothless Revolutionary said...

Sure they would have, if AR-15s had existed back then.

There are three things you have to remember about the Right to own a weapon.

The first is that the Founders fully intended that private citizens be allowed to possess and use the the best available military weapons, including fully crewed warships with the latest naval weaponry. This is why Letters of Marque and Reprisal are discussed in the Constitution. If there was no expectation that private citizens could arm themselves, there would be no need for such letters.

The second is that the Founders intended that there would be no standing army, and that instead an armed citizenry would defend itself while an army was organized in case of an invasion.

The last is that the Founders believed that the citizens of the United States had the duty to overthrow an oppressive government, and could only do so if they were armed with the latest in military technology.


Yeah, yeah yeah that's largely true. Although the last bit is questionable. I don't see a clause in the thing about insurrection, which the rebels thought they had a "right" to do.

But what I really want to know is, how well stocked is your fireproof pantry and underground bunker? I know that every reactionary conservative has to have one. These days, they're all the rage. Doomsday scenarios are what they really seem to live for.

One of "the best available military weapons" these days are nukes. You saying possessing WMDs is every citizen's right?

OR, what if nukes were made to be launched from an RPG? Scalia said as long as they could be "borne", or carried, they're ok.

And yet, I'm not noticing that even conventional bazookas have caught on with the defunct "citizen's militia." What gives? Aren't they legal to possess, or something?

You guys are going soft.

The Toothless Revolutionary said...

You have a distorted view of originalism. An originalist would understand that the Founders would see the internet as an extension of the press. (The word "press" in the First Amendment refers to the tool, not to a group of people as it does today)

An originalist would also realize that automatic weapons would be, and were, allowed under the Second Amendment. The Second Amendment protected the private ownership of the latest military technology. In fact you could buy fully automatic Tommy guns from newspaper ads through the mail until Prohibition led to the Mafia.


No.

Originalism is the distorted perspective.

It seems to understand that rights expand along with the evolution of our technology, but that they shouldn't expand along with the evolution of our society.

Originalists think its ok to invent stuff that will expand the expression of our rights, but that society can't. They think that "sex discrimination" needs to remain true to its definition of 50 years ago. But "speech" should not.

They're bogus. Rights can no more be contained by your fuddy duddy views of technology than they can by your fuddy duddy views of society.

Static Ping said...

Oh, they did definitely slander Bork. Ted Kennedy's speech is the now the gold standard of dishonesty in the Senate. It's also arguably the point where things started to go very wrong in the body. When Ted became the "lion of the Senate" his true legacy was the dysfunction that exists now.

Is the "we need to update meaning to reasonably apply to modern situations" argument only objectionable when it applies to sexual orientation? Or when it's used to reach a conclusion you don't like?

This is a good point in the sense that we must always question our own biases. However, it is not apt in this case. There have been attempts to add sexual orientation to this law for three decades now, all of which have failed, which indicates that Congress thinks that the law does not apply to sexual orientation not only in 1964 but right now. Posner feels not only unrestrained by the 88th Congress, but the current Congress, and all future Congresses. This cannot be stressed enough. Posner is making law, he is admitting he is making law, and he is proud that he is making law. He is more or less daring us to do something about it.

If judges are going to make laws, then either they should be up for direct election or we should do away with the democratic republic in favor of something more monarchical, perhaps keeping the Congress around to fill out the paperwork for our betters' decrees. That should last until the peasants storm the palace.

Gahrie said...

One of "the best available military weapons" these days are nukes. You saying possessing WMDs is every citizen's right?

Nope. I would support a Constitutional Amendment that would exempt WMDs from the protections of the Second Amendment.

OR, what if nukes were made to be launched from an RPG? Scalia said as long as they could be "borne", or carried, they're ok.

See above. And I don't support Scalia's limitations, I think they are based on an incorrect understanding of the Second Amendment. The Second Amendment included crewed weapons and weapon systems.

And yet, I'm not noticing that even conventional bazookas have caught on with the defunct "citizen's militia." What gives? Aren't they legal to possess, or something?

By the time bazookas were invented the Court had already begun restricting (unconstitutionally in my opinion) the right to own the latest military technology.

The Toothless Revolutionary said...

How deep is the moat around your residence? Is it filled with alligators?

You have a warped understanding of what makes it possible for people to be able to live amongst each other.

I'm guessing the idea of the constitution not being "a suicide pact" is also one you reject.

Gahrie said...

It seems to understand that rights expand along with the evolution of our technology, but that they shouldn't expand along with the evolution of our society.

Originalists think its ok to invent stuff that will expand the expression of our rights, but that society can't.


This is unclear, but if you mean that originalists use intent to handle new technologies...you do understand.


They think that "sex discrimination" needs to remain true to its definition of 50 years ago. But "speech" should not.

No we don't. In fact the Constitution has been amended many times to deal with the changing nature of society. In fact that is what most of the Amendments after the Bill of Rights do. We just believe that such amendments are the proper process rather than the mandate of nine unelected judges.

The Toothless Revolutionary said...

You're beyond discussion. The unelected judges were the same ones who determined what should be called "speech." The entire thread and post is about judicial interpretation. Come back to me when you can think/read more clearly. I made my point, and if you can't or refuse to get it, that's on you.

Gahrie said...

I made my point, and if you can't or refuse to get it, that's on you.

Your "point" was to compare the evolution of technology with the evolution of society.

My point is that the evolution of technology is a minor, constant process, easily handled by using intent.

The idea that the Constitution needs to be amended every time there is a new invention is ludicrous and unmanageable.

However, changing the fundamental definition and nature of marriage is just a bit different, and should be done by the people or their representatives, not judges. Especially when they need to twist the Constitution to mean whatever it would need to mean to allow them to bestow victory on any party the judge feels empathy with.

hombre said...

Readering: "But McConnell didn't trust debate."

Democrats don't debate. They defame.

Kirk Parker said...

Toothless (and brainless) Rev:

The founders in 1791 not only imagined, but actually wrote, and amendment whose purpose (they wrote lots of *other* words outside the amendment itself, explaining this) was to guarantee that the ordinary citizen could be armed equally to the professional soldier.

Their response to the AR15 would have been, "Cool!"

Kirk Parker said...

Re lifetime tenure: I'd have a lot fewer issues with it, if it were combined with mandatory retirement at age 65.



"Ginsburg was a fool."

Not for the first time.


"Kennedy dazzles us..."

Good grief; speak for yourself.

Angel-Dyne said...

Gahrie to Ritmo: "It seems to understand that rights expand along with the evolution of our technology, but that they shouldn't expand along with the evolution of our society.

Originalists think its ok to invent stuff that will expand the expression of our rights, but that society can't."

This is unclear, but if you mean that originalists use intent to handle new technologies...you do understand.


It's unclear because it's gobbledegook writing expressing gobbledegook thinking.

Owen said...

So let's focus a moment on lifetime tenure for judges. The Constitution says "during good behavior." This has been construed as "lifetime." But in fact it is less: what if a justice, hale and hearty, with many years still to go, acts up, harassing the help, committing crimes? Or, physically able, becomes (even more) dotty? Or slacks off, will not do her share, or writes opinions that make little sense?

There have to be standards, and they have to be enforced.

Can we argue that Posnerian impudence = bad behavior? Has he crossed some jurisprudential Rubicon with his rhetoric about Making Stuff Up? Or could he?

Calling him to account need not be cast in ideological terms, of disagreeing with his analytical approach. It could be cast as a matter of psychiatry. Soviets were good at that.

The Godfather said...

@Gahrie: Although I generally agree with your position that the 2d Amendment protects our rights to keep and bear arms, I think you err in the following regards:
1. Letters of Marque and Reprisal. This provision of the Constitution does not give Americans a Constitutional right to operate armed sea vessels. The Constitution empowers Congress to issue such letters, which authorize a privateer, a privately-owned and armed vessel, to attack enemy shipping. Congress is not required to issue such letters. Attacking shipping without such letters is piracy, a capital crime under international law. The Constitution does not (expressly anyway) give anyone a RIGHT to operate a privateer vessel absent such government authorization.
2. Standing army. Although some founders opposed a standing army and hoped that the militia would suffice for defense against internal insurrection and foreign invasion, other founders believed that the militia was inadequate for these purposes and that a standing army was essential. George Washington, based on his experience leading the American forces in the Revolution, was one of the latter. The Constitution does not prohibit the creation of a standing army. On the contrary it expressly authorizes Congress "To raise and support Armies".
3. The duty to overthrow an oppressive government. Certainly it's true that the founders believed in such a duty or at least such a natural right, because that's what they had just done. Some, Jefferson most clearly, believed, at least rhetorically, in a right of revolution (and so was a fan of the French Revolution), but no such right can be found in the Constitution. The Constitution was intended to prevent the government from becoming oppressive. I don't think most people today find very the persuasive the argument that we should have the right to bear arms so that we can rise up and overthrow the government. There are other so much better arguments, that I wish people wouldn't use the right-of-revolution one.

Gahrie said...

Can we argue that Posnerian impudence = bad behavior?

Sure. It won't do you any good though.

Has he crossed some jurisprudential Rubicon with his rhetoric about Making Stuff Up?
To you and me maybe.....to the Left? He's just making sense.


Gahrie said...

1. Letters of Marque and Reprisal. This provision of the Constitution does not give Americans a Constitutional right to operate armed sea vessels. The Constitution empowers Congress to issue such letters, which authorize a privateer, a privately-owned and armed vessel, to attack enemy shipping. Congress is not required to issue such letters. Attacking shipping without such letters is piracy, a capital crime under international law. The Constitution does not (expressly anyway) give anyone a RIGHT to operate a privateer vessel absent such government authorization.

My argument is not that the is provision grants the right to own a warship...it is that this provision is meaningless and would not have been included if the right did not exist.


Standing army. Although some founders opposed a standing army and hoped that the militia would suffice for defense against internal insurrection and foreign invasion, other founders believed that the militia was inadequate for these purposes and that a standing army was essential.


True. But the army was disbanded as intended after the Revolutionary War. This was quickly seen to be a mistake, and a standing army formed..but the intention was there.

The Constitution was intended to prevent the government from becoming oppressive. I don't think most people today find very the persuasive the argument that we should have the right to bear arms so that we can rise up and overthrow the government. There are other so much better arguments, that I wish people wouldn't use the right-of-revolution one.

Just because something is uncomfortable to modern sensibilities doesn't make it untrue.

Gahrie said...

There is actually a fourth reason.

The original Constitution was one of enumerated powers. The government could only do what we gave it the power to do. There is nothing in the Constitution that gives the government the right to ban weapons. So the government could not ban weapons.

When the Bill of Rights was added, it was only supposed to be "extra" protections of rights we already had, because we never gave the government the power to take them from us. Over time this has evolved into the belief that the government is a a government of limited powers...powers only limited by the Constitution. This is an error.

Steven said...

I disagree with Posner on his interpretation of what the court did.

If a person of the opposite sex could have done the exact same actions and not been punished, then you are, in the absolutely plain original public meaning of the term, engaging in "discrimination on the basis of . . . sex". That is not necessarily the original intent, but just because the writers of the text didn't have the imagination to take the text to its logical conclusion does not mean that the logical conclusion is an invalid understanding of the meaning of the text.

To quote the majority opinion quoting the Supreme Court, "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed".

Posner's approach to the law is quite objectionable to me; courts should apply the laws as written, not as the court thinks the law should apply in the current era. This court, however, did the right thing in interpreting the law; it applied the logic of the words enacted according to their meaning . . . which is not the same thing as the enactors thought the law should apply in their era, either.

On the other hand, the federal law banning discrimination on the basis of sex is unconstitutional in this case; the Constitution gives the Federal Government no power to prohibit anyone except itself from discriminating on the basis of sex. This is not a case of a state making or enforcing a law that abridges the privileges or immunities of citizens of the United States; nor depriving any person of life, liberty, or property, without due process of law; nor denying to any person within its jurisdiction the equal protection of the laws. Nor is it genuine interstate commerce, or anything else rationally construable by original public meaning as being a Federal matter. If the State of Indiana (as the legal agent in charge of Ivy Tech Community College) doesn't want to hire her for any reason, the only proper restrictions on the legality of that action can be found in state law.

Michael K said...

" He went on to write several books validating what they said about him."

He wrote books supporting the need for "back alley abortions ?"

I missed that.

Roy Lofquist said...

Blogger Owen said...

The Constitution says "during good behavior."

"In the records of the Constitutional Convention, it is clear that the Good Behavior Clause was viewed simply as an expression of life tenure as opposed to a distinct standard for removal. The only effort to change this language reflects this understanding. On August 27, 1787, John Dickinson of Delaware moved to add, after the words "good Behaviour," the words "provided that they may be removed by the Executive on the application [by] the Senate and House of Representatives." The Dickinson amendment was voted down by a vote of 7–1."

http://www.heritage.org/constitution/#!/articles/3/essays/104/good-behavior-clause

The Toothless Revolutionary said...

Your "point" was to compare the evolution of technology with the evolution of society.

My point is that the evolution of technology is a minor, constant process, easily handled by using intent.


So is the evolution of society.

The idea that the Constitution needs to be amended every time there is a new invention is ludicrous and unmanageable.

So is the "idea" that the Constitution needs to be amended every time a social change has been noticed. Ludicrous and unmanageable.

However, changing the fundamental definition and nature of marriage is just a bit different, and should be done by the people or their representatives, not judges.

Assertion without evidence. "Different" can mean anything. Society is different. It's ludicrous and unmanageable to change the constitution every time that happens, either. You delude yourself into thinking that technological change is somehow more constant that it should get a pass when it comes to how it is affected by constitutional interpretations, but that social change isn't.

Especially when they need to twist the Constitution to mean whatever it would need to mean to allow them to bestow victory on any party the judge feels empathy with.

Especially when they need to twist the Constitution to mean whatever it would need to mean to allow them to bestow victory on any company or technology the judge feels impressed by.

The Toothless Revolutionary said...

He wrote books supporting the need for "back alley abortions ?"

I missed that.


You were in one of them. You were one of the abortions.

The Toothless Revolutionary said...

Angel-Dyne: Another frog-faced Pepe-loving Nazi bitch who is next in line to be dealt with effectively.

That's the type of language she would find clear and convincing. At least, to her lizard brain.

Michael K said...

You can tell when Ritmo has no intelligent answer when he/she/it turns to obscene invective.

Usually I block its comments but some slip through.

Gahrie said...

My point is that the evolution of technology is a minor, constant process, easily handled by using intent.

So is the evolution of society.


Absolutely, completely wrong....I cite the Civil War, the Progressive movement, the civil rights movement, the gay rights movement, prohibition, abortion....

The evolution of society is controversial, difficult and often bloody. It is also sidetracked when the Court inserts itself prematurely, and the Court is often wrong when it does so. (Dredd Scott, Plessey)

The Toothless Revolutionary said...

You can tell when Ritmo has no intelligent answer when he/she/it turns to obscene invective.

You are a vile, disgusting waste of time and rarely merit anything other than obscene invective. Sometimes even that's too good for you, in fact.

Usually I block its comments but some slip through.

If only you could ever have an intelligent thought of your own that would "slip through."

No one's forcing you to read what I write. Exercise some self-control, Nursemaid Boy!

Gahrie said...

You delude yourself into thinking that technological change is somehow more constant that it should get a pass when it comes to how it is affected by constitutional interpretations, but that social change isn't.

The purpose of the Constitution is not to govern technology, it is to govern society.

The Toothless Revolutionary said...

Absolutely, completely wrong....I cite the Civil War, the Progressive movement, the civil rights movement, the gay rights movement, prohibition, abortion....

The evolution of society is controversial, difficult and often bloody. It is also sidetracked when the Court inserts itself prematurely, and the Court is often wrong when it does so. (Dredd Scott, Plessey)


I regret to say that the shortcomings of the conservative mindset are in full evidence in this comment. But it presents an opportunity for learning. The devastation of the Civil War was likely aided by technological advances. Telegraph, rail, etc. all contributed to the effort and were novel advances that enhanced the confidence and perseverance of the side in possession of them.

Further, "minor" is an arbitrary assignment. I doubt you will find many people at all who will agree that the evolution of technology is a minor thing. Atomic weaponry, industrial pollution, genetic engineering - fraught with legal and social and moral implications of every sort imaginable - implications no less controversial than the social changes you find so troubling. Also impacting and feeding off of the concomitant social changes that it can never be separated from.

The problem with the conservative mindset is that it seeks to control society and inevitable, constant social change. To believe that you can separate and make special accommodations for tech change will keeping social change in a legal box is pure folly. They reverberate and reinforce and enable each other.

It is the conservative mind, with its need to control and take inventory of things, that is out of step and cannot be contained - in the face of these very real and inevitable and unstoppable (and some would say, natural) processes.

The Toothless Revolutionary said...

The purpose of the Constitution is not to govern technology, it is to govern society.

Bullshit! It's to govern the government.

The Toothless Revolutionary said...

The constitution says nothing about "society." It says countless things about the government.

If I'm wrong, show me.

Also, I should addend my last comment above:

It is the conservative mind, with its need to control and take inventory of things, that is out of step and cannot be contained - in the face of these very real and inevitable and unstoppable (and some would say, natural) processes.

Such as the American Revolution, for instance.

Gahrie said...

Bullshit! It's to govern the government.

Actually...create the government.

Now..what is the government's job?

Hammond X. Gritzkofe said...

"This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch."

Now that right there is judicial activism and usurpation of Legislative power, pure, simple, bald, and blatant.

The Toothless Revolutionary said...

"Bullshit! It's to govern the government."

Actually...create the government.


Actually... create the rules for the government's functioning.

Hammond X. Gritzkofe said...

If Congress had any balls, any pride, any integrity, any self respect. they would impeach the Judge.

But Congress does not. They are undeserving of their office.

Gahrie said...

Actually... create the rules for the government's functioning.

Go back and read it again. The Constitution creates the government which then governs society. The current government of the U.S. did not exist until the Constitution was passed.

The Toothless Revolutionary said...

Go back and read it again. The Constitution creates the government which then governs society.

You go back and read again. Show everyone where the words "society" or "govern" are to be found in there at all.

This is just your innate authoritarianism speaking.

Gahrie said...

This is just your innate authoritarianism speaking.

Wtf are you talking about? The US Constitution created the US Government. The purpose of governments is to govern the society that created them.....you know..governments govern.

No one ever thought anyone would be idiotic and pedantic enough to need a clause that reads.."The purpose of the government created by this document is to govern the society that created it."