Does Thomas? Really? He says this:
As important as our Constitution is, there is no one accepted way of interpreting it. Indeed, for some commentators, it seems that if they like or prefer a particular policy or conduct, then it must be constitutional; while the policies that they do not prefer or like are unconstitutional. Obviously, this approach cannot be right.Fine, yes. So far so good. There's no controversy over that.
... No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores.Now, that is controversial, yet all we have here is assertion.
To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.But you haven't excluded other interpretations that might also be legitimate. And as for impartiality, where did you prove that? You just conceded that "even most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed," so why do you -- in the same sentence -- call it impartial? With such incoherence showing so plainly on the surface of your remarks, why should we trust your labyrinthine exegesis of the documents from the 18th century?
(Via Jonathan Adler.)
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74 comments:
Are "flawed" and "impartial" antonyms now? They never have been before!
Nino's gonna be some kind of pissed that Thomas is identifying orignalism exclusively with original intent.
Huh Althouse?
Something can be flawed AND impartial at the same time. It would be called a "mistake". Or perhaps an "honest mistake". Isn't that obvious?
Since when is "flawed" and "impartial" contradictory? I've never considered them to be.
In engineering the distinction between error and bias is quite well defined.
ann said... Or Make it up,
Isn't that exactly what Obama said was his criteria in the third debate? The Congress wrote the law, the courts at several levels said that the suit was late. Obama wants a court that will make ruling based on "social justice" not the law.
Obama Third debate: I'll just give you one quick example. Sen. McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination.
For years, she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit, saying equal pay for equal work, the judges said, well, you know, it's taken you too long to bring this lawsuit, even though she didn't know about it until fairly recently.
We tried to overturn it in the Senate. I supported that effort to provide better guidance to the courts; John McCain opposed it.
I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that's the kind of judge that I want.
Funny that Thomas, a Supreme court judge, should say this. After all, the process of "judicial review" is to be found nowhere in the Constitution. The founders, well Jefferson anyway, could not comprehend the congress passing a law that was not constitutional, and if it did happen, he figured that the President would be the final arbiter of the issue. Jefferson was alway such an optimist.
Funny thing is, when John Marshall, Jefferson's hated cousin, usurped new power and invoked the process of judicial review, Jefferson, and his fellow Republicans, were appalled. Yet I can find no attempt to amend the Constitution to either revoke this new power from the courts, or add it to the official duties of a court justice.
So, ignoring the traditions argument, to a strict Constitutionalist, is judicial review constitutional?
Ann, I agree that Judge Thomas was not clear and did not adequately defend his point.
Nevertheless, one side discovered things in the Constitution that in no sense could anyone seriously argue were consistent with the writer's intent--- forbidding the death penalty, forbidding laws restricting abortion, forbidding laws restricting various sexual behaviors-- and one side didn't.
Not only that, in each of these cases, legislation was overturned due to the Supreme Court decisions-- legislation passed and supported not by the founders, but by present-day citizens working through their legislatures.
So we can go around and around forever with various legal theories, but at the end of the day, as a citizen and non-Judge and non-lawyer, I trust Scalia and Thomas with my rights as a voter and participant in Democracy far more than I trust Breyer and Ginsburg.
sonicfrog said...
"After all, the process of 'judicial review' is to be found nowhere in the Constitution."
It doesn't say "seperation of powers," either, or "federalism." You're just wrong that judicial review isn't in the Constitution, or that the founders couldn't imagine it.
What about the many features of our modern world that were not within the contemplation of the framers, but which must be dealt with anyway? The process of extrapolating considerations governing the local apothecary shop to those relating to the multinational Pharmacia require a lot of "making up."
I appreciate Althouse's vigorous defense of Thomas' remarks. While I realize that to the uninitiated, Althouse may appear to have intended her words as trenchant criticism, and their ordinary meaning may have led them to be so comprehended by readers, we are told that our interpretation is not to be limited by what was said or what was meant.
What about the many features of our modern world that were not within the contemplation of the framers, but which must be dealt with anyway? The process of extrapolating considerations governing the local apothecary shop to those relating to the multinational Pharmacia require a lot of "making up."
That's what the legislative and constitutional amendment processes are for.
"What about the many features of our modern world that were not within the contemplation of the framers, but which must be dealt with anyway? "
This is why we have legislatures.
Obama wants a court that will make ruling based on "social justice" not the law.
Nonsense. The law included a statute of limitations that could be interpreted two ways. The court chose the interpretation that was pro-business (the clock starts when the discrimination starts) and killed the suit. The second interpretation (the clock starts when the discrimination is discovered) would have meant that a suit could go forward.
Furthermore, the term social justice does not apply here. This is a question of simple justice under the law.
There are really only two ways to interpret the Constitution: that which takes a decision out of the hands of the populace and that which leaves it in their hands. Partial, impartial, conservative, liberal. Use all the words you want to defend the actions you're taking. It all comes down to judicial modesty.
And some of you thought Althouse would vote for McCain!
Thomas is correct. Either you discern the founders' original intent or you believe the Constitution is a living, breathing Document that changes with the times.
The former is constant, the latter means it can be interpreted differently ten, twenty, fifty, or a hundred years from now no matter what the original intent was. That certainly sounds like "making it up" to me.
If we pay no attention to what the framers or changers of the constitution were trying to accomplish in their minds, aren't we then completely untethered from the constitution itself?
Why even have an Article V if each generation can make up their own meaning of the constitution, and thereby give full flower to the components of liberty in its manifold possibilities.
Joking aside, I do think Thomas is overselling originalism. I do agree with him that the original meaning is authoritative. When it can be discerned, and when it speaks directly to the question before the court, and when no countervailing precedent exists, the inquiry is over. When this holds, originalism is indeed impartial. But many of originalism's defenders - including me, from time to time - have oversold its determinacy.
Sometimes the original meaning cannot be discerned - or at least cannot be discerned at a specific enough level of generality to answer the question. That's why Thomas and Scalia came out on different sides in McIntyre, for example. Sometimes the original meaning can be discerned, but it just doesn't answer the question - the original meaning would allow either of the answers pressed by the litigants. That's why even recent statutes can be litigated and litigants in good faith advance different views on what a provision means. The original meaning is not always dispositive of the legal questions in concrete cases.
Now, some - Robert Bork, Frank Easterbrook, for example - would tell us that if the Constitution doesn't answer the question, the judiciary has no authority to answer the question, and while I agree, their view seems to lean too closely to strict construction for my liking. The Constitution speaks both in what it says and what it implies; indeed, as Easterbrook notes, judicial review follows from structural inference, not explicit textual command. I think constitutional construction is fine. Justice Scalia committed no sin in Kyllo, for example, to extrapolate that a search is still a search, even if done by technology unimagined by the framers.
I like to think of it this way: the original meaning imposes a perimeter on virtually any question implicating a given text, be it a statute or the Constitution. Sometimes that perimeter is very narrow, to the point that there is only one, obviously determinate answer within it. More often, give the broad nature of the Constitution's language, the perimeter is broad enough that there are several possible answers - and Thomas is wrong that all we can do in those situations is to make it up. We can look at precedent; we can look at tradition and traditional understandings. Of course, we could make it up, too, as some judges prefer. But either way, in many cases, the Constitution just doesn't speak to plainly to the question, leaving us to consider other materials, and at that point - when there is underdeterminacy - even originalists are left with discretion. Originalism limits, but does not remove, judicial discretion. Originalism is a powerful tool and Thomas is in my view correct that it is the legitimate way to construe the Constitution, but originalists do ourselves no favors by suggesting that originalism is by itself a complete and comprehensive decisional matrix.
It's the evolving meaning of ``legitimate.''
Triangle Man said...
"Nonsense. The law included a statute of limitations that could be interpreted two ways. The court chose the interpretation that was pro-business (the clock starts when the discrimination starts) and killed the suit. The second interpretation (the clock starts when the discrimination is discovered) would have meant that a suit could go forward."
You're talking about Ledbetter, and that isn't what they said - indeed, they explicitly reserved the question of whether a discovery rule tolls the filing period. The question was whether, under a statute that created an offense when discriminatory intent was joined by discriminatory action, a pay discrimination claim accrued when the decision about pay was made or each and every time a paycheque was cut that flowed from that decision. The latter interpretation was absurd, utterly inconsistent with the text and structure of Title VII. You can only say that the statute could be interpreted in two ways by use of the same device that I can accurately say "I can say black is white": I can say it. Isn't true, of course, but I didn't warrant it was true, only that I could say it. The statute could be interpreted in two ways; there was only one remotely credible interpretation, but sure, you could make up another one if you were determined enough.
Honestly, I cannot think of any other case I've ever read that was so obviously and unavoidably one-sided where the other side garnered four votes (not to mention a preposterous dissent).
I accept what he is saying. As psychologist who deals with forensic issues occasionally, I work hard to know the difference between discovery and projection. Discovery is original intent, everything else is projection.
It is curious to me that liberals, who are big on psychology in general, are so completely vulnerable to gross projection.
Trey
Psychologists see projection everywhere.
What about the many features of our modern world that were not within the contemplation of the framers, but which must be dealt with anyway?
I think fls makes a better point here than some are seeing. For example, electronic mass communication technology was beyond the ken of the framers, and I don't think it should require an act of Congress or a constitutional amendment before a court could hold that the First Amendment applies to electronic mass communications. I do think, however, that it is not the job of the courts to update the Constitution to reflect current social mores, changed economic circumstances, etc.; that's why we have the amending provisions.
To the Professor's main point, I don't think Thomas is incoherent at all because I see no tension between imperfection and partiality. You can tell that the New York Times is partial by looking at its errors and observing that they skew overwhelmingly in one direction. The same sort of analysis could be applied to the opinions of a court. But that doesn't mean that imperfection implies partiality.
PZ is entirely correct, however, to point out that Thomas is glaringly wrong in identifying the meaning of the Constitution with the meaning intended by the framers. That would be like saying that an act of Congress means whatever the lobbyist who drafted the bill intended it to mean. The framers did not have the power to give the Constitution the force of law; that power was vested in the ratifiers. In other words, it was the ratifiers who spoke for "We the People." So Scalia is correct to say that the Constitution means what the ratifiers understood it to mean when according it the force of law. The intention of the framers may sometimes be good evidence of what the ratifiers understood, but the latter should be the focus of the inquiry.
Of course, the Constitution was designed for posterity, and some expressions in it may have been understood to allow for application of evolving standards (e.g., "due" process may mean "customary process, whatever that may be"; "unusual" punishment may take account of current practice). In such instances (if any), it would be consistent with originalism to apply evolving standards.
This is what the judicial activism debate is really about, not some of the red herrings we hear.
A non-activist judge or justice looks at what the constitution (or statute) says, and what the legislative intent was when it was enacted.
The activist looks everywhere else until he finds "something" that supports the end result he thinks is fair, ie. foreign decisions, current popular opinion, statistics, etc.
Indeed, they often just "make it up." Exhibit #1 - Roe v. Wade. There's nothing in the constitution about abortion, a "right to privacy" (just a bunch of emanations and pnumbras), trimesters, etc. They made the whole thing up to ban abortion, because that's what they thought the country wanted/needed. There is nothing in the constitution about a abortion or a right to privacy; they should have let the states decide, or waited for a Const. Amd.
I think fls makes a better point here than some are seeing. For example, electronic mass communication technology was beyond the ken of the framers, and I don't think it should require an act of Congress or a constitutional amendment before a court could hold that the First Amendment applies to electronic mass communications.
I don't see how an original intent approach fails to address this particular example.
The Constitution in theory shouldn't be up to interpretation because it isn't the framers intent on what is interpretable or not. They put what they put in there for a reason and we know what those reasons are, so therefore it should be construed that those reasons are self-evident and in that context using The Constitution as your guide for law, judicial review, or Constitutionality of any other law. Many people agree, I think, that any interpretation of the Constitution should be down clear Constructionist interpretation. If it's in the Constitution or addressed by it, then you have a foundation, if it isn't then you either don't do it or you leave it up to the states. Why this is a great mystery, I don't know. But the clear obfuscation to subvert The Constitution as a matter of which method of interpretation to use via European law or international law is really what we are talking about now.
Thomas's statement- much as I admire the guy - contradicts itself. How can the attempt to ascertain original intent be flawed and impartial?
former law student said...
What about the many features of our modern world that were not within the contemplation of the framers, but which must be dealt with anyway? The process of extrapolating considerations governing the local apothecary shop to those relating to the multinational Pharmacia require a lot of "making up."
If it isn't in The Constitution then you do legislatively what you need to do. However, it must be Constitutional in that does it violate any of the provisions/clauses in the Constitution and if it isn't there, then I would say you use the framer intent argument and move from there. I think that would be sensible.
mcg said...
"I don't see how an original intent approach fails to address this particular example."
Original intent I can't speak to, but original meaning originalism addresses it. Originalism is about what the Constitution commands - not to what that command applies. In many areas - correctly, so far as originalists are concerned - "the Court has acknowledged that the underlying principles of an amendment apply even to technologies unforeseen at the time of ratification, when those technologies are used to ends that were familiar to the ratifiers." Thus, in the context of explaining why I think the electric chair may have been unconstitutional, I cited United States v. Paramount Pictures, 334 U.S. 131, 166 (1948) ("[w]e have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment"), Reno v. ACLU, 521 U.S. 844 (1997) (First Amendment applies to internet speech), Kyllo v. United States, 533 U.S. 27 (2001) (infrared surveillance constitutes a Fourth Amendment search), Orin Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005) (discussing application of the Fourth Amendment to the search and seizure of computer data), and to that roster we could now add circuit cases confirming Kerr's premise, and indeed, District of Columbia v. Heller, 1 28 S. Ct. 2783 (2008).
Simon
Don't get me wrong, I agree with judicial review, and Hamilton's endorsement for it in Fed 78.
Founders, and those from that era, who were most concerned with the letter of the law viewed the concept as being plucked from the vapours, as it is not listed within the Constitution, the supreme law of the land. Yes, it is an implied power, but the implied powers clause (article 1, section 8, clause 18) only applied to the Congress. Yet Jefferson, the harshest critic of Marshall's action, would turn around just a few years later and, under the auspices of implied powers, purchase the Louisiana territories for pennies on the dollar.
It's interesting to remember that the Federalists papers were written by Hamilton, Madison and Jay to try and sway New York to approve of adopting the Constitution, and were not published in all the states. Funny that the main obstacle in New York was a Clinton, Governor George Clinton.
BTW, Anti-Fed 78 is more about the "appointment for life" issue than judicial review.
I don't see how an original intent approach fails to address this particular example.
Some people think originalism (particularly the "intent of the framers" variety) implies that "features of our modern world" could not be governed by the Constitution because they could not have been within the intent of the framers. Every time some technological development occurred that was beyond the ken of the framers, it would be beyond the reach of constitutional law unless there was an amendment.
I think you and fls (and I) might agree that the courts can apply the Constitution to such modern developments. To that extent, the courts can be said to be "making up" rules about how Constitutional language drafted with, say, newspapers and pamphlets in mind also apply to TV and radio. That's what I took fls to be talking about above.
The problem arises when that process, which I think is perfectly consistent with originalism, is confused with the entirely different process under which courts bypass the amending provisions in an effort to bring the Constitution into harmony with changing values. Some argue that if courts have the power to modernize the Constitution by applying it to unforeseen technological developments, they must have the power to modernize it in other ways as well. But I didn't understand fls to be making that argument.
People are clinging to the notion that imperfection will operate in some random way that has nothing to do with the preferences in the minds of the judges who are interpreting the original documents. I've been reading cases for 30 years -- and that notion has no resonance at all for me. How seriously and how long have you been reading the cases?
Thomas's statement- much as I admire the guy - contradicts itself. How can the attempt to ascertain original intent be flawed and impartial?
Suppose that 100 years from now, someone invents a time machine. They head back in time with 100 of key court cases in hand that were supposedly decided on original intent principles, and meet with a collective of framers and ratifiers.
In the course of discussion, it comes out that the cases were "correctly" decided 70% of the time. 15% of the time, the cases were decided more liberally than the original intent; 15% of the time, the cases were decided more conservatively than the original intent.
That's flawed but impartial.
On the other hand, if all 30% of the improperly decided cases were decided more conservatively---that's flawed and partial/biased.
People are clinging to the notion that imperfection will operate in some random way that has nothing to do with the preferences in the minds of the judges who are interpreting the original documents.
Well, no, we're clinging to the notion that "flawed" and "impartial" are not antonyms. You pounced on Thomas over the apparent incoherence of a single sentence---with a sentence that was itself apparently incoherent.
With such incoherence showing so plainly on the surface of your remarks, why should we trust your interpretation of his statement? :-)
But now you've explained yourself more fully and it's clear that what you were trying to say isn't so incoherent. Perhaps Thomas deserves the same benefit of the doubt until he has an opportunity to respond.
If I had to hazard a guess, however, it seems to me that it is not possible for an individual to be completely impartial. But perhaps he wasn't referring necessarily to the approach of an individual but rather to a collective approach, in which the deliberations of scholars can serve to diminish impartiality by assembling evidence to support this or that interpretation of the original intent.
Sonicfrog, I think that Justice Frankfurter put it best in Coleman, which I quoted from at the link above: When you read the Constitution, and see that it gives the court "judicial power," you have to ask what that power was understood to be. You can't just dream up what you'd like the judicial power to include, or conclude it meant whatever would be convenient. The fact that they saw no need to define what these "legislative," "executive" and "judicial" powers that they vested were -- Congress was told what subjects it might legislate on, not what the act of legislating involves -- implies that they understood those terms to have meaning. As Frankfurter explained, the framers thought that the judicial power they gave to the courts was the judicial power that they knew: the power to decide cases and to resolve conflicts of law. When you conjoin that with a Constitution that purports to be the supreme law of the land, trumping contrary law made by the states or pursuant to it by Congress, judicial review follows inexorably, for good or ill.
"People are clinging to the notion that imperfection will operate in some random way that has nothing to do with the preferences in the minds of the judges who are interpreting the original documents. I've been reading cases for 30 years -- and that notion has no resonance at all for me. How seriously and how long have you been reading the cases?"
30 years as well (though as a practitioner,not a prof) and what you're missing is that interpretation of the Constitution by attempting to discern the Framer's intent--primarily by looking at the document itself-- at least grounds you to some degree, and precludes just "making it up". Once you branch out beyond that, you are not tied to anything in particular, allowing you to arrive at any outcome you want if you're creative enough. The Founders contemplated amending the Constitution, and the Justices looking to intent are doing their job. If the public doesn't like where the document gets them (it was, after all, drafted in a much different time) they can amend it.
People are clinging to the notion that imperfection will operate in some random way that has nothing to do with the preferences in the minds of the judges who are interpreting the original documents.
So "incoherent" actually meant "incorporating a premise which is logically possible but empirically suspect"? This is pretty poor stuff even by Silly Ann standards. Why can't Sensible Ann step up and admit that Silly Ann misspoke?
"Constitutional interpretation" already suffers from too many generalizations as it is. Adding to them doesn't clarify anything. But what the hell.
Thomas wants to make the identity of the nine members of the SCOTUS the least important datum in understanding constitutional cases. To do that, he wants to find something objective that all can agree will be the focus of attention and that can be analyzed using a generally accepted methodology, just as physicists do when analyzing matter and energy. No one ever thinks to ask what the physicists' personal views may be on any subject, and none of the physicists' conclusions would be rendered more or less persuasive if you knew their personal views on any subject. In short, the falsifiability principle doesn't work well when the subject is constitutional adjudication, among other reasons because there is no agreement about what the relevant inquiry ought to be or how one should go about conducting that inquiry.
Ann points out the weaknesses in Thomas's either/or formulation of the issues. But in doing so, it's easy to overlook the reason why Thomas's way of looking at the subject is becoming essential (even if you don't agree that some form of originalism is the answer). Unless we can arrive at some generally accepted methodology that makes the identity of the judge the least important factor in constitutional adjudiction, then the entire system is quite likely to melt down entirely. Confirmation proceedings are already difficult for appellate judges, and are becoming increasingly so. The pressure to block or reject a judicial nominee who dissents from some position deemed non-negotiable by either side in the political wars just keeps going up. We're not far from the time when the confirmation process will just cease to function.
This is all a reflection of the belief, which I think is now widespread, that constitutional adjudiction is, at its core, a form of political decisionmaking of the most ordinary sort, just dressed up to look like something different. Once that view of the judicial process sets in, then there is no reason to accept the ruling of the current SCOTUS judges rather than, say, the views of any other collection of opinionated observers of the scene.
Thomas sees all that, knows that the SCOTUS as a viable institution for the next two hundred years is in the balance, and wants to find a way out of the trap. Unfortunately, I don't think he has.
Professor, I readily concede that you have been reading the cases longer and undoubtedly more closely than I have. And I also concede the existence of confirmation bias. But I took you to be asserting that Thomas's statement was logically incoherent, not that it was empirically wrong. So I do cling (bitterly!) to my logical point in the face of your empirical one.
In any case, I don't think Thomas's acknowledgement that mistakes of execution will be made in applying originalism means that originalism itself embodies partiality. If you are only making the narrow point that imperfections in applying originalism offer opportunities for partiality that judges are likely to indulge, I think that's correct, but not inconsistent with Thomas. What Thomas is calling impartial (as I read him) is the originalist method itself, not the people who are imperfectly applying it or the results to which the imperfections may lead them.
There's nothing in the constitution about abortion
Right, the constitution limits the power of government, and (with the 14th amendment) the power of state governments against the people. Since the Constitution grants the government no power to prohibit abortion, abortion remains an unenumerated right of the people.
I think that Thomas understands Ann's point very well, but Ann is does not appear understand his. (He seems to be pretty clear to me, but I'm only a mathematician.) Thomas is saying that the method of using original intent (I assume he is speaking colloquially and is including all of the various forms of originalism) does not contain inherent bias. However, its application will inevitably be flawed, and the bias of the humans applying the method will be one obvious source of flaws. He is contrasting a method where bias is a bug to those where bias is a feature.
Every time some technological development occurred that was beyond the ken of the framers, it would be beyond the reach of constitutional law unless there was an amendment.
Not just technology. Look at the historical rulings on protection of workers. Same Constitution, different outcomes.
former law student said...
"[T]he constitution limits the power of government, and (with the 14th amendment) the power of state governments against the people. Since the Constitution grants the government no power to prohibit abortion, abortion remains an unenumerated right of the people."
That only holds so far as the federal government is concerned, and only then so long as regulating abortion couldn't be characterized as incident to an enumerated power. Note that there is no desegregation power in the Constitution, but we still have the Civil Rights Act: it's a regulation of interstate commerce. For what it's worth, I'm pro life and conclude that there is no general federal power to regulate abortion, while Althouse is pro choice and concludes that there is a general federal power to regulate abortion, arising from the commerce power.
As to the states, your argument doesn't hold. The states don't draw their authority from the federal Constitution (which specific, enumerated exceptions - for example, ceteris paribus, the people could strip their state legislature of every imaginable power, but could not deprive it of the power to assign electors), they are only limited by it. Thus, unless a federal or state Constitutional limitation operates to prevent a state from banning abortion, and the state is granted power to do so by its own constitution, it may do so.
The Ninth Amendment isn't a repository of any unenumerated right, only a reaffirmation that the people posses all the rights that they have not given over either to the federal government in ratifying the Constitution and its amendments, or to their state governments in their state institutional settlements.
ya'betcha!
signed
Gov. Palin
Not just technology. Look at the historical rulings on protection of workers. Same Constitution, different outcomes.
Apologies; you are making a more general argument for courts' modernizing power than I believed you to be.
And while I'm at it, apologies to Paul. I did not see your comment above before posting my similar point.
Since the Constitution grants the government no power to prohibit abortion, abortion remains an unenumerated right of the people.
By that logic, murder remains an unenumerated right of the people that cannot be restricted by the government. After all, nothing in the Constitution grants the federal government the right to prohibit murder -- ergo the states can't prohibit it either.
The Constitution was gutted in 1913 with the passage of the 17th amendment.
The 17th amendment essentially converts the whole business into normal law.
By normal law I mean that might makes right. In essence with normal law
the words mean whatever the powerful say they mean.
What made the Constitution prior to the 17th amendment abnormal was the way
it which it rooted itself in human nature and exploited the natural tendencies
of human beings to give the ideas it articulates a presence independent of what
the politically powerful often wished it to be.
As we all know, the Constitution attempted to balance powers against powers.
The whole point of the Senate, it's whole reason for being, was to protect
the independent powers of the states against the natural and inevitable
tendency of a centralized government to expand and subsume any other political
entity.
State legislatures elected Senators. Since the legislators were human beings
they could be counted on to be protective of their own powers and on average
elect Senators that would protect their independence.
The Constitution contains a lengthy list of the powers of the central government.
Anything not on that list was intended to be something that the central government
could not do. Instead of a list of powers that the states have, the Constitution
contains a list of prohibited state actions. Any power not on the prohibited list
was something a given state might do.
The Senate, appointed by the state legislatures, was the mechanism intended
to keep the central government within bounds.
There wasn't that the idea was that the state governments were so wonderful,
instead it was just another balancing act. The different states would balanced off
each other. A powerful central government was necessary because it had already been
demonstrated that certain powers naturally belonged to a central power and could not
be distributed. But to preserve as much human freedom as possible it was intended
that that list of centralized power be as short as possible. The Constitution is
intended to completely describe, delimit and restrain those powers and it's fleshly
hands weren't the words but rather the Senators who for their own self-interest
were expected to restrain others from violating them.
It's an amazingly clever mechanism, for being a thing of words. By playing
on human nature it made itself an almost tangible thing.
Unfortunately, the 17th amendment, direct election of Senators, turns the
whole thing into a bunch of words meaning only what the powerful want it to
mean.
"Psychologists see projection everywhere."
Well projected!
Trey
Well, we can go with original intent or we can read auras and see "penumbras." The problem with penumbras is that some people see them and others don't and some see them when they're even not there.
I absolutely agree with Thomas. The Ninth and Tenth Amendments provide everything else needed to evolve our society. Oh dear! States Rights?!
The indeterminacy of originalism is potentially a pretty serious issue.
The Constitution contains a lot of open-ended provisions, and it's possible that there was no original intention or understanding that the specific content of those provisions (e.g., what punishments are "cruel" or what behaviors are part of "liberty") was to be frozen.
Maybe the relevant people in 1787-89 or 1866-68 believed that future understandings of the open-ended terms would be different and should be controlling in the future. Or maybe they were indifferent or undecided about whether their specific understanding or the future specific understanding of the open terms should control. Or maybe the record is indeterminate on the point.
In any of these cases, originalism doesn't help us decide most of the hot-button cases that people talk about in venues like this. Indeed, the point applies more broadly to any situation where there is no clear historical record indicating an intent to freeze the meaning of the term in question (or at least to set up considerations guiding future recognition of evolving meaning).
And if that is the case then setting originalism up in opposition to "making it up" seems overblown.
This sort of thing is why Thomas is my favorite Justice.
Anyone else notice a sort of pomo trend in Althouse lately? I'm reading this repeated message of "We can't be impartial so why try? Or why trust anyone who tries?"
There is a reality out there. Some of us are very keen on perceiving it, with an intensity that trumps even politics.
Anyone else notice a sort of pomo trend in Althouse lately?
Lately? :)
One of the things that has always made this blog interesting is that Ann brings an artistic sensibility to things like politics and the law. That isn't necessarily a GOOD thing, in my opinion, but it is an interesting thing.
Obviously, this approach cannot be right.
Fine, yes. So far so good. There's no controversy over that.
Well, obviously there must be a controversy over that, since those who take "this approach" will not agree with those who say that it "cannot be right." Who's being plainly incoherent here?
Thomas's dichotomy is wrong, though. There is a compromise Third Way: just make up what the framers intended. And that is what the SC does.
Simon:
I'm not arguing with you. I have no doubt on the validity of JudRev.; I was presenting, horribly, now that I reread my comment, the position I have read of those who say they are are Strict Constitutionalist. Worse yet, my exercise was folly, since Thomas is an orgionalist and not a Stirct-Con guy. So forget I typed anything.
PS. Have you read Ron Chernow's Alexander Hamilton? I am, even as we speak, starting the chapter where he writes about Hamilton and the Federalists Papers.
What if the flaw is not impartiality, Ann?
Reckon this post is the incoherent thing. You've mentioned coherence below in your post re La Noonan and Christopher Buckley. Apparently she and he both make sense but Judge Thomas doesn't. Your cruel neutrality has slipped - you're revealed as a loose thinking laissez-fair-constitutionalist lefty seduced by nothing more than big words used by people who like canapes. Ha Ha. Take that!
Still love your blog but.
Ann,
Another way of looking at it is this: We assume that people are fallable and that their biases will permeate their decision making processes.
But are these biases things to overcome or things to celebrate? And isn't it clear that judicial conservatism is, at heart, an attempt to overcome biases? Are you saying that it never works? I've read more than one time a conservative Judge writing "This is not a law that I would ever vote for, but it's constitutional." Isn't that what we want in a Democratic Republic where power is supposed to reside as much as possible in the people and their elected representatives?
quit being so obstinate
lately at least
If constitutional interpretation was as simple as choosing between "right" and "wrong" in constitutional interpretation, the very smart people who have been on our Supreme Court since it's inception would have always chosen the "right" answer.
The fact that incredibly smart people disagree about the way to do this, indicates, at least to me, that perhaps there just isn't one "correct" way.
Thomas isn't making a bad argument, but he, along with alot of the commenators here, aren't thinking about the practical impact of the complete change in constitutional construction that Thomas wants to take. (Although I'm sure he would argue that the practical impact is irrelevant to the analysis).
Suffice it to say the entire federal regulatory system (that is, the administrative state) in the US is based on a view of the commerce clause that is stronger than that of Thomas. Any radical change to it, and yes, Thomas does radically want to change current Constutional Jurisprudence, would have, let's just say, significant collateral effects.
Matthew,
I don't know about everyone else, not only was I thinking about that, I was counting on it.
When in doubt, presume that the government doesn't have the authority to do whatever it's doing. Presume against the legitimacy of coercion and violence. That's the safest and most reasonable kind of statutory construction, when you're dealing with a constitutional order based on an imaginary "consent of the governed."
As important as our Constitution is, there is no one accepted way of interpreting it. Indeed, for some commentators, it seems that if they like or prefer a particular policy or conduct, then it must be constitutional; while the policies that they do not prefer or like are unconstitutional. Obviously, this approach cannot be right.
Fine, yes. So far so good. There's no controversy over that.
The hell there isn't. Obama's entire "judicial philosophy" is based on the policy Thomas is criticising.
You can have "fairness" or you can have "rule of law". Obama and the "Living Consitutionalists" are all against the rule of law.
Legitimate Constitutional interpretation at the Federal level is really quite easy:
Anything not explicitly permitted the Federal Government is prohibited to it.
Anything not explicitly denied to a State Government is permitted for it.
gregq said...
"Legitimate Constitutional interpretation at the Federal level is really quite easy: ¶ Anything not explicitly permitted the Federal Government is prohibited to it."
Oversimplistic. The necessary and proper clause plainly contemplates implied and incidental powers. Even Justice Thomas rejects the proposition you're advancing: in the Term Limits case, for example, he noted that the Constitution commands both in what it says expressly and what it says by necessary implication.
To illustrate the problem with your approach, consider that the Constitution gives the Congress power to regulate copyrights: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Can Congress pass a law authorizing a federal lawsuit for copyright infringement? Under your theory, the answer is no: there's no explicit power to do so. But of course Congress may. For better or worse, the sweeping clause either grants or confirms Congress' power to do so; as Marshall recognized in M'Culloch, "all must admit[] that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional."
(For extra credit: now that we have established that Congress can provide a cause of action for copyright holders against infringement, what happens if a copyright holder sues a state? Could Congress have authorized such a suit, even if the plain language of the statute would seem to allow it? Of course, barring a dramatic turnaround from CollegeSavingsBank, the answer is no; it turns out that just as some of Congress' powers are implicit rather than explicit, so to are some of the limits on it.)
Andrew wrote: "We assume that people are fallable and that their biases will permeate their decision making processes."
Most assumptions get you in trouble, I am with you on this one brother. As I read it, I saw how I do psychotherapy.
I figure that the interesting and not so adaptive things that my clients do make perfect sense once we understand how their biology and family history affected their biases and decision making process. Once we figure that out, the poor choices make perfect sense and the way out appears form the understanding.
I make my living with that assumption!
Trey
...since Thomas is an orgionalist...
What the HELL is an "ogionalist"
A quick search shows that Ogion is a mage in the Earthsea book series. Therefore an Ogionist is either an expert in all things Ogion or a follower of such.
Matthew,
"Suffice it to say the entire federal regulatory system (that is, the administrative state) in the US is based on a view of the commerce clause that is stronger than that of Thomas. Any radical change to it, and yes, Thomas does radically want to change current Constutional Jurisprudence, would have, let's just say, significant collateral effects."
I'm certainly willing to entertain the notion that we need to phase in a re-recognition of true constitutional limits on federal government power; how long a time would you propose, and why?
My comment is more a question. I think the two ways to interpret the Constitution are 1) If it isn't specifically allowed by the Constitution, it's illegal, and 2) if it isn't banned by the Constitution, it's allowed. Each has its own name; I think one is constructionism (I could be wrong, and I don't know which is which) but I cannot recall what the other is called. Can someone help me with this? Would "originalism" be #1 above, and "modernism" #2?
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