"I was frightened to death for the first three years," he said in a recent conversation....Maybe you think those expressions of timorousness are a bit of a pose, but I'm inclined to take him at his word here. It rings true. Don't you think that's how you would feel if you had this responsibility? Or would you get a charge out of the sheer power?
He had felt adequately prepared and had expected to move comfortably into his new role, he said, and was therefore surprised at how overwhelming he found it.
"I was afraid I might inadvertently write something harmful," Justice Breyer said. "People read every word. Everything you do is important. There is a seriousness to every word, and you really can't go back. Precedent doesn't absolutely limit you. In almost every case, you're in a wide-open area. The breadth of that opening, getting up to speed on each case, constitutional law as a steady diet, the importance to the profession. ..." His voice trailed off, and he shook his head. "My goodness!" he exclaimed.
Here's his explanation for writing his book "Active Liberty: Interpreting Our Democratic Constitution":
"An approach is not a theory," he said. "And it's not ad hoc. It's somewhere in the middle. It's consistency. I wanted to know, Am I being arbitrary? What is the check? After a while, a judge begins to leave footprints. Writing the book, the doing of it, forced me to work through and find the coherence."Only a certain type of mind thinks about constitutional interpretation that way. You might think that a Justice needs to commit to a theory of interpretation beforehand, try to follow it, and then judge his work by whether he played it straight as he applied the theory in the particular cases. Breyer is looking at the accumulated work over the years and discerning the pattern of his behavior, creating an argument for why it is coherent. This approach, by the way, is one you might use to write a scholarly article about the Court: you look at a set of cases and discern a theory that explains them. Is it odd for a Justice to do that with his own work? Perhaps we need to say that a Justice who operates in this manner, only discerning his theory in retrospect, really does have a theory from the outset: the theory is pragmatism.
पोस्ट्स
२७ टिप्पण्या:
Interesting. This reminds me of two things: the writers' old saw "I don't know what I think until I see what I say," and the project in some kinds of therapy (I don't know what they're called) of looking retrospectively for a "story" in your life -- maybe a different or more positive one than you've been living by. Don't most people live and learn that way? Even if you started out with a firm principle, you'd probably look back and find that you'd had to amend or bend it because life and law didn't fit it neatly.
Breyer recently stated that he concentrates on the consequences of his decision more than other approaches to the law (such aa strict interpretation). He said this tilt towards the consequences is front and center with the Ten Commandments cases where he (Breyer) thought the Ten Commandments display in a state park would probably cause less controversy than the Ten Commandments display in the court house. This is a ridiculous way to decide a case. Whether the placement of the Commandments will spark contoversy is no way to decide a case.
This "consequences" argument is what is the problem with our judicial system. Too many judges like Breyer beleive that they know what is best or society. Ruling on what the consequences will be is not the "Rule of Law." It is what the judge decides at the moment what he or she believes is a good or bad outcome; in other words, judicial activism.
No doubt consequences should be considered when deciding issues. However, they should not be the first consideration on the list.
We need to avoid having Breyers in the future (especially the liberal ones).
Sloanasaurus:
being a tad bit simplistic, dontcha think?
"Breyer is looking at the accumulated work over the years and discerning the pattern of his behavior, creating an argument for why it is coherent."
Does this just not strike anyone else as just not being normal behaviour? Instead of starting from the premise that one needs a working theory and looking for one that works, this is the complete opposite: it's starting from what works (or at least, what one has already done) and seeking its premise (i.e. trying to rationalize why you did it). If you're a guitar player, I suppose there's some merit in analyzing your style and working out exactly what it is that you do, but by contrast, as a judge, it seems to me that you should know what you're doing before you do it, rather than going ahead and hoping for the best, figuring it'll all seem coherent in retrospect.
shianux said...
"Sloanasaurus: being a tad bit simplistic, dontcha think? "
It seems to me that the whole point is that Breyer is being a tad too simplistic. The problem is perfectly encapsulated by David's comment: "Breyer will always struggle with the human question of justice versus mercy." That isn't Breyer's call to make, though! The question isn't "is this law unjust," it is, "is this unconstitutional?"
Breyer's theory invites abuse. It just invites a judge to inpose their own views; whatever one can say about Justice Scalia's occaisional departures from originalism, it remains inescapable that the theory itself is, if not perfect, then at least much better at circumscribing the potential for abuse: indeed, it says something that most of Scalia's departures require him to actively abandon (or at least ignore) textualism and originalism. By contrast, Breyer's theory is "whatever seems right" - a philosophy that, by definition, cannot be departed from.
I'm not an attorney, but it seems like it is pragmatism and having an open mind.
Nice to see the humanity of the man, too. Everbody is scared on the first day of school!
Or would you get a charge out of the sheer power?
Explains why people were repulsed by Bork's salivating over the "intellectual feast>"
Does this just not strike anyone else as just not being normal behaviour? Instead of starting from the premise that one needs a working theory and looking for one that works, this is the complete opposite: it's starting from what works (or at least, what one has already done) and seeking its premise (i.e. trying to rationalize why you did it).
On the contrary, it seems like extremely normal behaviour. I mean, who doesn't engage in post-hoc rationalisation of his own behaviour? We all make decisions and then struggle, afterwards, to find some means of justifying them within a coherent framework. It's a rare person who engages in decisionmaking according to a single, unitary, comprehensive coherent, intellectually defensible rubric.
Or maybe it's just the people I know.
I don't really understand this criticism of Breyer. How would you rather have him decide cases?
Justices who advocate a consistent theory are probably just trying to hide the ball. The guy who claims he's being the most consistent is the one you have to watch.
Consider Justice Scalia. He claims to have a consistent approach: look at the original intent of the Founders, read the text, open up your dictionary, and go home. However, it just so happens that this approach to law results in uniformly consistent ends -- for instance, that property owners always win, that interstate commerce extends just far enough to include illegal narcotics, and that George W. Bush wins the 2000 Presidential election.
It seems to me that Breyer determines individual cases on the merits. He interprets the Constitution, instead of trying to put words into the mouths of men who have been dead for 200 years. He's on the Supreme Court because the President and the Congress trusted his judgment. I'm leery of people who claim to have a uniform, one-size-fits all approach to something as important as Supreme Court jurisprudence.
I'm leery of people who claim to have a uniform, one-size-fits all approach to something as important as Supreme Court jurisprudence.
And on the flip side, many of us are leery of people who have no principles we can point out to say "you've broken your own rules." The way you can with Scalia. The reason people think he's hypocritical is precisely because he has a coherent theory of interpretation, and we can call him on it, when he fails to adhere to it, or twists it to achieve a particular result. With Breyer, there's no way for anyone but Breyer to do that easily -- you just go back afterwards and tweak your model of how he decides cases (the way he tweaks his own, apparently). Until he declares fidelity to a model of decisionmaking, there's no way for us, standing outside his head, to say whether he's being conscientious or not.
You can try an argue that he's gone one way in one case and contradicted himself broadly in another, but every lawyer knows you can draw all the distinctions you want if you ever really need to. No two cases are exactly alike. The absence of clearly articulated governing principles lets one escape any charge of hypocrisy (or rather, arbitrariness) by explaining inconsistency away as some hitherto unnoticed nuance of one's approach.
Terry,
"I don't really understand this criticism of Breyer. How would you rather have him decide cases?"
I would like him to decide the cases using formalist tools like textualism and originalism. Frankly, you display your ignorance regarding Justice Scalia by firstly suggesting he is interested in the original intent of the Founders, something Scalia has consistently and repeatedly rejected since the late 1980s, and secondly, by implying that it always produces results that he likes (I somehow doubt that Scalia is a big fan of flag burning, Johnson v. Texas, child molesters, Maryland v. Craig, growing marijuana at home, U.S. v. Kyllo, and letting convicts off lightly, Apprendi et al, to name but a few, and while Scalia certainly has voted to uphold state restrictions on abortion, he has unambiguously said that he would vote to strike down a federal regulation on the same. By contrast - how many judgements has Justice Breyer handed down that he strongly disagrees with in terms of his normative preferences? Which of Justice Breyer's opinions represents a genuine divergence from what one would presume to be his own proclivities? While you're certainly correct to say that Scalia does wander off the reservation from time to time (although it escapes me why on Earth you would pick Bush or Raich as an example when the most egregious, indefensible departure by Scalia, Green v. Bock Laundry Machine Co., is easily available; perhaps Green simply isn't as flashy and sexy as Kelo? It seems to me that the best measure of a judge is not the big, sexy cases that make the headlines, but the way they behave when they think no one's looking), I would rather a Judge operate under a theory which is usually held to, but occaisionally set aside, to the fluffy, standardless nonsense advocated by Breyer and the living documentarian tendancy.
I would like him to decide cases in a very simple way: on the presmption that the law is what the law says. I don't mind looking at precedent, I just say it can't be used to trump the text; I don't mind a purposivist inquiry, I just say it can't be used to trump the text; I don't even mind an original intent inquiry, it just can't be used to trump the text. The inquiry starts and finishes not with what they intended to do, not with what purpose they had in mind, but what they actually did; any other inquiry is permissable as long as it is in search of what the law meant at the time, rather than an attempt to get around what it actually says. The law is as it is written, as its meaning would have been originally understood in the plain language of the time, and that meaning is binding on Judges. Would I prefer it if Brother Nino would stick to the same script, as Brother Clarence usually does? Sure, but then Scalia would not be Scalia, and even on a bad day, I trust him, his theory and his judgement a lot more than I trust Breyer's.
"You can try an argue that he's gone one way in one case and contradicted himself broadly in another, but every lawyer knows you can draw all the distinctions you want if you ever really need to. No two cases are exactly alike. The absence of clearly articulated governing principles lets one escape any charge of hypocrisy (or rather, arbitrariness) by explaining inconsistency away as some hitherto unnoticed nuance of one's approach."
This is precisely the point that Scalia makes in The Rule of Law as a Law of Rules.
Aside:
Sooner or later, I keep hoping the Chicago Law Review will actually do me the courtesy of either refusing or accepting my request to reproduce it at Ninoville, as mostly every other journal which has published Scalia's work has given me permission to do, but for the time being, they seem perfectly content to rudely completely ignore every message I've left them and e-mail I've sent them since the Fall. I have to admit, my respect for Chicago has gone rapidly downhill over this; saying "no" is one thing, but - contra Alison Krauss - law journals do not say it best when they say nothing at all. Still, that's top-flight Law Journals for you, I suppose. :)
The problem with raw pragmatism is that "the evaluation of an action as practical . . . depends on what it is that one wishes to practice."
Yeah, that's a quote from Ayn Rand. It's still a valid point. Pragmatism in maximizing human happiness is going to look different from pragmatism in maximizing liberty, socioeconomic equality, or adherence to the will of God. "What works" depends entirely on your definition of working.
And what end society should be aimed at strikes me as a philosophical question in theory and a policy question in practice. Which brings us to a question in evaluating Justice Breyer — is it appropriate for a democracy to have policymakers with lifetime appointments?
But this is what Breyer is doing.
I think there's a crucial difference between what Breyer is doing and between what Llewellyn et al. were doing -- they were analysing other peoples' judicial decisionmaking. Breyer is analysing his own judicial decisionmaking. He is not extracting a predictive model from a pattern of decisionmaking, finding the patterns in the old precedents; he is extracting a decisionmaking "approach" out of his own decisions. Wasn't Llewellyn's approach about predicting what judges will do? It's just not the same when you are the judge.
anonlawstudent: As I say in my post, it is one thing for scholars to follow a method based on retrospective pattern discernment, quite another for a judge.
However, criticizing a Justice for failing to offer a sweeping theoretic justification is both overinclusive (you will end up criticizing Justices when they come out in a way you approve of) and underinclusive (it doesn't reach the problem of bad interpretive methodologies, or bad pragmatic results).
Well, there are two criticisms implicit in what I was going on about there. The most immediate is of Scalia, and judges who, like him, openly adhere to a particular means of interpreting the authoritative statutory text . . . except when they don't. At which point we criticise them.
The other -- which you are responding to -- is that I criticise judges (like Breyer -- or O'Connor, who is more commonly thought of this way) for failing to give us regular interpretative signposts. You say that:
I think you can validly criticize a Justice for not comforming to some interpretive theory that you believe you can demonstrate is superior to other methods.
And my response would be that I think having a consistent interpretative methodology is superior to other methods. Originalism, after all, does have a theoretical basis behind it (I can think of at least two very different possibly bases -- one for original-intent and the other for original-public-meaning), but the truth is, the theory is not what is most important. The text-oriented consistency is. And I think it's superior to the alternative (not imposing a forward-looking consistency requirement) for two reasons. No, really just one.
And that reason is centered on the people who end up under the terrible sword of the law. We need consistent and predictable approaches interpretation so that people don't end up caught unawares by what the law turns out to be (and end up in jail, or paying through the nose, etc.). We can't get perfect predictability, because language is ambiguous and all, but we can at least make an effort to constrain the field of possible interpretations, can't we? Not everything can be a bright-line rule, but not everything has to be fuzzy either.
And this:
(you will end up criticizing Justices when they come out in a way you approve of)
does not seem like a problem to me.
If we are to seek the truth behind a narrative, all sorts of interpretive methods must be employed. Varying modes of interpretation interplay with one another to create a more complete understanding of the "truth" underlying the narrative. No single method can accomplish that.
The truth behind a narrative? I suppose I differ from you on that point -- I don't think there's really any such thing. (I probably differ from Scalia and Thomas on that point too.)
As I see it, the ultimate reality of the law isn't in the theories or the "truth" of the narrative, or anys such metaphysical stuff, but in the concrete punishments administered under the law and in the ways people alter their behaviour in response to their understanding of the law (yes, Holmes's "bad man" and all that). So to me, regularisation of that understanding is, to the degree it is achievable, a sort of condition precedent to the smooth operation of the law in society.
And in some sense, isn't this more humdrum view of law more or less the view we come around to in the contemporary period in Western law? We've abandoned (well, all of us but Justice Thomas) our former commitments to a transcendent theory of natural law, and turned what used to be first and foremost Law, with the capital "L" into a something which is first and foremost a system of regulatory tools with which to fiddle with policy. Law as a tool of governance, rather than as a tool of justice. And for law to operate well as a tool of governance, I think a consistent, maximally constrained interpretative approach needs to be employed.
Marghlar said...
"Simon, I can't let you get away with this . . . [snip]"
I think you're thinking I'm saying something I'm not. Terry said that Justice Scalia's philosophy is "look at the original intent of the Founders" - intentionalism. It is no such thing; original intent is not a synonym for all forms of Originalism, and the version of originalism adhered to by myself and generally adhered to by Justice Scalia is original meaning. It is the failure to appreciate the difference - as I explained at more length in the Wikipedia entry - which I called ignorant, because it suggests a lack of attention to detail. I suppose that, from 40,000 feet up and a different intellectual position, it might look pretty similiar to say "I believe what the framers intended governs" compared to "I think what the framers wrote governs," but to anything more than the most cursorary glance, it becomes obvious that they are very different. I do not believe the original intent governs, and nobody who claims to be a formalist should be.
I'm certainly not going to suggest that Brother Nino doesn't occaisionally depart from originalism. But it is noticable that usually (not always), when he hands down an opinion which is non-originalist, it's noticable for the absence of originalism - that is to say, he simply ignores the theory. So at worst, that Scalia sometimes departs from originalism is a critique of Our Hero, not originalism. Of course, these days, it's positively fashionable among conservatives to criticize Scalia, because of Hamdi and because of Raich; now, even though I didn't agree with him in that case, and even though I think that Scalia takes more flak than he ought for Raich, if we assume arguendo that this is Scalia ruling outside of his theory, what's missing? That's right: an originalist analysis. You'll find one of those in Justice Thomas' dissent, so we can say that Scalia sometimes abandons originalism, not that originalism sometimes abandons Scalia.
Raich, of course, brings us to Brother Randy, and his recent essays. I read and criticized the Barnett essay you mentioned here. Randy has done great things for the originalist cause, written some great scholarship, but at this point, he seems to be essentially pursuing a fit of pique against Brother Nino for having the temerity to vote against him in Raich. If I were Randy, I might consider that maybe I lost the case when I failed to differentiate the ivory case at oral argument. But in any instance, this is essentially a temper-tantrum, and not a very substantial one at that. Randy seems to be exploring a bizarre non-formalist branch of originalism entirely of his own making, in which the ninth amendment protects unenumerated rights (because the framers were libertarians, so we have to peg the unenumerated rights somewhere, but Randy has already rejected substantive due process) and where it's important to contemplate why the Constitution is binding, neither of which I'm interested in.
if we assume arguendo that this is Scalia ruling outside of his theory [in Raich], what's missing? That's right: an originalist analysis.
My recollection (too lazy to dig out the case now) is that his argument was that the necessary and proper clause, under its plain textual meaning, was sufficient to permit Congress to exercise a kind of supplemental legislative authority covering the situation in Raich.
Thomas's criticism was (again, working from memory -- possibly I am confusing a different Thomas dissent) that this makes nonsense of much of the Constitution, because so many of the enumerated legislative powers would be covered entirely by this reading of the necessary and proper clause.
In neither case is the argument really "originalist" per se -- they're just textualist, I think. And not inconsistent with originalism.
Balfegor,
I think that's actually a pretty fair description of the two positions. The thing is, from my perspective, though, originalism and textualism are not two different interpretive theories - they're two sides of the same formalist approach. Originalism, for me, is an error-correcting lens which one places over textualism when dealing with texts that were not passed recently: textualism says that a text means what it says, assuming that the meaning now is what it was when it was adopted, and originalism says it means what it said when it was adopted, which is little more than a truism that language changes through time. There's an idea, I think, that originalism is a tool you use to interpret the constitution and textualism is a tool you use to interpret statutes, but I don't look at it like that at all: I would use originalism to interpret a statute passed during the civil war as readily as I would use textualism to interpret a brand new constitutional amendment.
Perhaps the best demonstration of this is the 27th amendment, which was proposed in 1791 and ratified in 1992. But it doens't matter what that text meant in 1791, and it doesn't matter what Madison intended it to do, because it wasn't ratified until 1992: what matters is, what did that text mean in 1992? Now, while my son daily brings me examples to the contrary, the use of language hasn't really changed much since 1992, so to interpret the 27th Amendment, we use textualism, not originalism, because no (significant) time has passed.
I think that way of looking at it affects quite substantially how I look at cases like Raich. It's true that Scalia makes a [quasi-]textualist argument in Raich, which is why I think the criticism of him is utterly unwarranted, but where he goes wrong is in failing to consider what Justice Thomas did: just as it doesn't matter what the plain text of the 27th Amendment might have meant in 1791 because it wasn't ratified in 1791, it doesn't matter what the plain text may mean (or support) in 2005, because the necessary and proper clause wasn't adopted in 2005, it was adopted circa 1788. The plain meaning governs, yes, but what matters is the plain meaning at the time it was ratified.
Incidentally, I completely forgot to mention in my previous post that I actually completely share Marghlar's scepticism about the Court's modern sovereign immunity jurisprudence, as I elaborated on at some length here.
I think there is a confusion here. I didn't take from the quotation of Breyer in the post that he lacked principles of interpretation. I took it that he wasn't sure what, if any, principles he might be using.
One can act and reason in a principled manner without being entirely self-aware of what those principles are. Our minds are much more than what we are self-conscious of.
I don't have much of an opinion on Breyer's judicial principles. It doesn't follow, however, that a justice who lacks self-awareness is either unprincipled or pragmatic. Furthermore, it might be better initially to trust your judicial instincts than to trust a judicial philosophy that sounded good before you actually had the power to decide the law of the land. Later those instincts could be shaped up by reflection, as Breyer seems to be doing.
One can act and reason in a principled manner without being entirely self-aware of what those principles are. Our minds are much more than what we are self-conscious of.
Certainly that is true. But, with all due respect to Justice Breyer (and I do mean that) I see no reason to believe that the unconscious impulses of his mind are any more inclined to the rigorous and equitable application of a set of principles than those of anyone else's.
We can all, given a certain minimal amount of imagination, construct compelling post-hoc accounts of why we do things, accounts in which we are perfectly fair and consistent in all particulars (or inconsistent, if you hate hobgoblins). But are those accounts true accounts of why we decided or acted as we did? Can other people feel out the path of the law on such a basis? I suppose one might think so, but I am not convinced.
A rule that the SCOTUS always finds in favor of the litigant whose name comes first in the alphabet would be both consistent (always applied the same way) and perfectly predictable. What it would not be is just, or any kind of respectable constitutional adjudication.
And yet, my understanding of legal positivism (Hart et al.) is that this is a perfectly valid rule to have in law, so long as it is supported by the legal community's rule of recognition. And my understanding is that legal positivism has largely carried the field, outside of academe (we just disagree on the rule of recognition).
In our own case, of course, we are fortunate enough to live in a legal community in which such an an adjudicative rule is not supported by anyone's rule of recognition, because we operate in a system in which judges are constrained (theoretically) by legislators, whether Congressional or Constitutional, and are not free to make up such rules.
If the end served by consistency is, as I think, to improve the efficacy of law as a tool of governance, it's not like judges making up their own substantive rules, however consistent, is in any way going to further law as a tool of anyone's governance but those judges'. But we have not set the judges to govern ourselves.
On the other hand, if we amended the Constitution to permit such a rule and wrote statutes imposing such a last-name preference rule, would such rules be legal? Would they be law? I think they would. Or rather, under the modern understanding of law, which has had "Justice" and "Morality" completely stripped out of it, I think they would.
Anonlawstudent has drunk deeply from the well of post-modernism: There are no "facts"; there is no "truth"; there are only fictional "narratives".
How do we determine what is the best narrative? There no rules because any set of rules would also be a "narrative". At this point the judge (or politician) reaches for his copy of Nietzsche and announces: "If there is no "truth", then why not my "truth?
Anon's views do not bode well for justice.
Of course, you are correct that if consistency became important enough to the nation that a constitutional amendment took place implementing a rule like the last-name rule, I would likely get little traction with this kind of normative assault on methods of judicial decisionmaking. But that's not going to happen. Our society wants more than that from judges.
The essential thing, though, is that judges not be the one to make the call. Those judgments have nothing to do with the law or the legal community -- they come (as they must) from outside.
The problem with the last-name rule is that it destroys the power of those who govern (i.e. us) to employ law as an effective tool of governance. Under such a rule, every order we give is interpreted as "alphabetical supremacy rules."
Consistency in interpretation is there to serve us, so that when we establish a pattern of rules, either on the Constitutional or statutory level, we can be reasonably certain that our servants (executive branch folk, judges, etc.) will follow our commands in a predictable fashion, and so that the spread of possible ways in which the terrible power of the state will come crashing down on our heads is constrained.
The other values you cite, e.g.:
legitimacy (from which, to my way of thinking, flows textualism), efficiency, public policy, and individual fairness.
are all values that are properly considered by the people setting up the rules (the legislatures), not by judges. Legitimacy is determined under rules established in the Constitution, of course, so it flows from legislators' directives as well, not the independent judgment of the judiciary. It is not appropriate, I think (or "legitimate" if you prefer), for judges to assume the authority to adjudicate on the basis of any of those values without an explicit statutory delegation of such authority -- one which I do not think the Constitution implies.
Aspects of certain of them, e.g. fairness, are comprehended in some sense by the equal protection clauses and prohibitions on corruption of blood, ex post facto laws, bills of attainder, etc. But efficiency and public policy? I do not think so. Those are questions for lawmakers, not adjudicators.
I'll try to be quite sequential in this reply to keep it organized.
I'm glad that someone else agrees with me regarding sovereign immunity; I'd been starting to wonder if perhaps I was going a little mad, since I seemed to be the only person who thought that both sides of the current court have it wrong. I think we've driven ourselves into a completely weird cul-de-sac in the service of...I don't know precisely what it's in the service of.
I don't really try to gloss over the authority of the original meaning, it's just that it seems axiomatic to me that any positive law means what it says. And it just seems like an obvious inference that if the law means what it says, it means what it said as it would have been understood at that time. I mean, these seem self-evident to me, so I don't mean to give them short shrift, I just find it difficult to understand how or why anyone would say a law means anything other than what it says, without making a mockery of the legislative process. One of the nicest summaries of formalism I've seen is actually one of the most brutally critical, in 1 Critical Lawyer's Handbook 7, by Adelman & Foster. I read that and thought to myself, "there, you see? Even when someone's trying to rip it to shreds, they can't do it! They just end up describing formalism, and declaring its virtues to be vices. So much for the vaunted 'crit' movement!", I thought.
Regarding Scalia and his occaisional infidelity, I can only really add emphasis to what I've said already, which is that I think it's important to note that when Scalia does wander off the reservation, he wanders off it without originalism, which makes those departures a criticism of him, not the theory, which I'll grant is a point that Randy makes. None-the-less, I think Scalia is far more consistent than he is given credit for, and I continue to think this is basically just a counterproductive temper tantrum on Randy's part. I respect Randy enormously, I continue to be appreciative of the work he contributes, but I think he's being misguided in his present endeavour.
I also think he's reaching the wrong conclusions where the Ninth Amendment is concerned, but what I'd try to make clear is that I'm not suggesting that I think he's off in his own little world, or that he's dressing ujp his own views as originalism, as he accuses Scalia of. Rather, I just think that Randy is (subconciously) looking for a justification of his normative preferences within the original meaning, and discarding evidence to the contrary. Hence, he continues to fail to appreciate that one has to read the ninth and tenth amendments as the single statement that they started out as: see III Annals of America 358 (Madison's speech introducing the bill of rights in Congress), wherein the text that would become the ninth and tenth amendments are introduced as a SINGLE amendment: "[t]he exceptions here or elsewhere in the Constitution made in favor of particular rights shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or merely inserted for greater caution." In my view, this is a fatal rejoinder to theories that bifurcate the ninth and tenth amendments, because it makes inescapable the conclusion that their object was identical. One this is understood, the "repository of unenumerated rights" vision of the Ninth Amendment is unsustainable, in my view. Even, however, if it could survive contact with this evidence, it should be amply clear, though, that the meaning I suggest is at least as plausible an interpretation as the one Randy advances, which leads me to wonder why he doesn't defend his theory on its own terms, instead of casually dismissing alternative theories.
I do have more things to say (always do), but my arm's starting to hurt now, so I'm going to take a break and get some red wine. ;)
I don't think our hostess generally minds if debate ranges off the topic at hand, as long as it remains in the ballpark, and remains polite. ;)
I don't think it renders the Ninth Amendment devoid of content (or that it deprives it of independent force) to say that its meaning is intimately tied to the meaning of the Tenth Amendment; even if they are two sides of the same coin, they Are two sides, and they inescapably say different things, even if they say different things on the same subject. I agree with you, of course, that the Constitution should always be read with the presumption that every clause means something, and I certainly agree that Randy's position is not ludicrous, I'd just like it if he could propose his theory without the overtones suggesting that his preferred result is the only game in town. I can entirely see that tehre are other interpretations possible, I just don't find them convincing. That's a far cry from declaring as Randy does, that any alternatives violate the terms of the Ninth Amendment.
I think you're right to suggest that originalists want to reduce judicial discretion, but that usually happens as a direct consequence of sticking to the text. The reality is that judicial discretion can't be done away with entirely, and any theory that claims otherwise is wrong. To describe a case is not always to decide it; I think it's fairly clear that we know what the plain meaning of ERISA is, yet every year, it's lawsuit after lawsuit. Why? Because even once you know the original meaning of a text, there's always the question of how a necessarily general textual provision relates to the case in front of the judge. Even if we knew beyond serious dispute what the commerce clause originally meant, we wouldn't abolish lawsuits revolving around it. What a judge should do when the original meaning is clear but when it supports two or more equally reasonable results is one of the more interesting debates among originalists. Some (Bork, Strang) suggest that in cases of underdeterminacy, the judge's authority to rule is minimal. Others (Scalia) say you need to look to tradition. I would suggest that you need to look to tradition, you need to look to precedent, and you need to have a willingness to broadly defer to the elected branches.
Discussing your penultimate paragraph could lead into a huge and lengthy debate, so I'm going to hold fire for now. ;) And where bourbon is concerned, Maker's Mark is ths stuff you're going to want to try. :p
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