Republicans Throw in Towel in Sotomayor Fight

How well did Judge Sonia Sotomayor do at her confirmation hearing before the Senate Judiciary Committee?

Well enough to get Senate Republicans to throw in the towel.

The committee's edgiest critic of President Barack Obama's first Supreme Court nomination, Alabama Senator Jeff Sessions, said after Judge Sotomayor finished her testimony Thursday that he would oppose any attempt to block her confirmation with a filibuster.

Sessions assured the judge that she would get a Senate vote and said he would "look forward to you getting that vote" before the Senate takes summer recess, which is set to begin August 7.

That doesn't mean that Sessions, the ranking Republican on the Judiciary Committee, will vote to make Judge Sotomayor an associate justice on the nation's highest court.

But other Republicans will.

Senate Judiciary Committee chair Patrick Leahy, who has managed the confirmation process with his usual informality and dry humor, said as much Thursday. Leahy made it clear that his heavy lifting was done, as was Judge Sotomayor's. What could have been an ugly, contentious and ridiculously ideological hearing that rubbed raw the open sores of a country that continues to struggle with questions of race, ethnicity and gender was, for the most part, calm and respectful – perhaps even a bit dull, as Judge Sotomayor refused to bite when her conservative critics attempted to bait her.

After the judge finished four days during which she was supposed to provide testimony but that mostly saw her listening to speeches from the senators who will decide whether she gets a lifetime seat on the high-court bench, Leahy said, "I think it is pretty clear that she will be confirmed, that she will be the ninth member of the U.S. Supreme Court and that (her nomination will be approved) with Democratic and Republican votes."

The news here is the firm assertion from a committee chairman who has been judging Supreme Court nominations for 35 years that: "There will be Republican votes for her."

The chairman knows his committee.

He knows the Senate.

And he is right where this nomination "fight" is headed.

The right-wing campaign to demonize Judge Sotomayor – as a "wise Latina," among other things – appears to have failed to unite the "party of no" in saying "no" to Obama's high-court pick.

There is no evidence that any Democrat on the Judiciary Committee will oppose Judge Sotomayor.

There is a good deal of evidence that as many as three Judiciary Committee Republicans, perhaps even more, will vote to approve the judge's nomination.

Best bets for bipartisanship: Iowa Senator Chuck Grassley, Utah Senator Orrin Hatch and South Carolina Senator Lindsey Graham.

All three are conservative Republicans. But they are also men of the Senate, long-term legislators who see themselves more as members of the chamber in which they serve than of the movement with which they are affiliated.

The shadow line that committee Republicans who vote to approve Judge Sotomayor's nomination will walk was summed up during a final round of questioning of the nominee by Graham.

The senator buffed his conservative credentials by telling the judge: "You've said some things that have bugged the hell out of me."

The senator mouthed most of the Rush Limbaugh talking points. "Your speeches are disturbing, particularly to conservatives... Those speeches to me suggested gender and racial affiliations in a way that a lot of us wonder, will you take that line of thinking to the Supreme Court in these cases of first precedent."

But then, bluntly rejecting the core argument of the nominee's most rabid right-wing critics, Graham distinguished Judge Sotomayor's sometimes controversial speeches and her work (as a board member) with the Puerto Rican Legal Defense Fund from her decisions as a jurist

"Well, Judge, to be honest with you, your record as a judge has not been radical by any means," the senator said.

What might have sounded to some like an attack on the nominee was, in fact, the outlining of an argument for voting to put her on the bench.

"You have, I think, consistently, as an advocate, took a point of view that was left of center," Graham told Judge Sotomayor. "You have, as a judge, been generally in the mainstream."

The Graham-Sotomayor exchange closed with a reference to a key talking-point of the judge's critics but ended up sounding an awfully lot like an endorsement of the nomination.

To wit:

GRAHAM: The last question on the "wise Latina woman" comment. To those who may be bothered by that, what do you say?

SOTOMAYOR: I regret that I have offended some people. I believe that my life demonstrates that that was not my intent to leave the impression that some have taken from my words.

GRAHAM: You know what, Judge? I agree with you. Good luck.

It is fair to say that Leahy was thinking of that exchange when he said: "There will be Republican votes for her."

Comments (154)

1. Maybe some GOP Senators can vote `Present'.....in honor of He Who Walks on Water by being `Present' so much....LOL!

   Posted by Happy at 07/16/2009 @ 2:36pm

2. Now that confirmation appears imminent, I only hope she fills the shoes of the person she replaces well.

   Posted by dmnygard at 07/16/2009 @ 3:47pm

3. Damn, where are all the blog Libs?

   Shouldn't you be crowing about all the battles you're supposed to win, like getting the Wise Latina on the SC? Like the Pork Bill "working as intended"? Like the House getting ready to tax them heartless millionaires w/big surcharges?

   Shouldn't you all be so proud of all that feel-good Hopey and Changey?

   Posted by Happy at 07/16/2009 @ 3:53pm

4. Posted by Happy at 07/16/2009 @ 2:36pm |

   No comprendo porqué usted pierde palabras, pinga.

   Posted by snowball777 at 07/16/2009 @ 4:11pm

5. Posted by Happy at 07/16/2009 @ 3:53pm |

   Shouldn't you reconsider how often you use the`ignore' facility, Zippy?

   Posted by snowball777 at 07/16/2009 @ 4:12pm

6. Poor HAPP....Senate Republicans just told his mentor Rush and his "Sotomayor is a racist" stuff...

   to get f**ked.

   LOL

   Posted by Mask at 07/16/2009 @ 4:29pm

7. Posted by Mask at 07/16/2009 @ 4:29pm |

   Oh it's better than that...he's taking the fall for them...

   From www.fat-junkie-dimwit.com...

   "RUSH: Do you know, ladies and gentlemen, that I am the reason Republicans are going soft on Sonia Sotomayor?"

   "RUSH: So apparently the Republican members of the committee are telling State-Run Media reporters that my initial reaction, calling her a reverse racist and a bigot, is holding them back."

   ...good thing the minority whip cream is there to save face for them with the soon-to-be-majority of Texan voters.

   Posted by snowball777 at 07/16/2009 @ 4:54pm

8. its dullness was interesting...

   lindsey made some good points and looked wise and sensible.

   Posted by dexter666 at 07/16/2009 @ 5:18pm

9. Nichols acts like this is breaking news. there never was a doubt she would be confirmed. But I guess that the Nation works as hard as conservative media to play to their base.

   Posted by antisocialist at 07/16/2009 @ 5:29pm

10. Senate Republicans just told his mentor Rush and his "Sotomayor is a racist" stuff...

    to get f**ked.

    LOL

    Posted by Mask at 07/16/2009 @ 4:29pm

    Gotta give you credit....for at least, willing to pound your chest and take some pleasure for Libs winning a round, never mind that your are heavily favored....say 98% odds?

    KvH would approve and probably appreciate.....(snickers).

    Oh where, oh where, will the Libs find the next `pleasure'? Will it be when UE hits 10%? When income tax collections falls another 30%? LOL!

    Posted by Happy at 07/16/2009 @ 5:38pm

11. Lindsey Graham is determined to remain clueless about male and white privilege.

    I'm a little disturbed that Sotomayor's work as a judge is mainstream. I want her to be innovative, I want her to do more than maintain the laws that feminists and civil rights activists worked so hard to pass. I want her to make a feminist difference on the High Court. Please, Sonia, be that wise Latina woman.

    Posted by ktrig at 07/16/2009 @ 5:43pm

12. Qualifications being equal or better of course, this is the slot for an Hispanic female. Just as with Thomas and Ginsburg, it's the only way to have the court reflect the makeup of the population it administers jurisprudence to --- found a cool site; Balkingpoints ; incredible satellite view of earth

    Posted by reg373 at 07/16/2009 @ 5:49pm

13. I'm a little disturbed that Sotomayor's work as a judge is mainstream. I want her to be innovative, I want her to do more than maintain the laws that feminists and civil rights activists worked so hard to pass. I want her to make a feminist difference on the High Court. Please, Sonia, be that wise Latina woman.

    Posted by ktrig at 07/16/2009 @ 5:43pm

    At least you're honest about wanting her to ignore the Constitution and the role of Congress and create law and discrimination against others from the Supreme Court.

    Thanks for providing a good example of why the fringe element of feminism is anti-American and hates the constitution.

    Posted by antisocialist at 07/16/2009 @ 6:11pm

14. i'm a good example of someone who hates the Bible. cust kayin.

    Posted by urmygyro at 07/16/2009 @ 6:15pm

15. Why is it every judge who doesn't vote the Republican was is called an activist, when Republicans turn a blind eye to their own numerous sins? I mean, what are Thomas, Alito, Roberts, or Scalia doing on that court? Talk about bias!

    Posted by Kristev at 07/16/2009 @ 6:26pm

16. Oh where, oh where, will the Libs find the next `pleasure'? Will it be when UE hits 10%? When income tax collections falls another 30%? LOL!

    Posted by Happy at 07/16/2009 @ 5:38pm | ignore this person | warn this person

    twas yer satano-aynrando overmen got us here!

    don't know what you are crowing about. guess you are predicting that as soon as a critical mass of marching moron schmukos remember that eurasia has always been our enemy and eastasia has always been our friend...

    lol - you think when schmucko the consumer clown really really really realizes this ain't no little economic downturn, he's going to blame obama?

    man - you must think the average joe is even stupider than i do.

    maybe yer onto something there HAP...

    so here's the big question upon which will turn the fate of a nation...

    are the american public ONLY so vacuous and willfully ignorant as to believe your pied pipers once, or...

    are they so spoiled and ripely clueless that they will change course mid stream and...FOLLOW YOU GUYS AGAIN!!!

    stay tuned!

    Posted by dexter666 at 07/16/2009 @ 6:47pm

17. Posted by antisocialist at 07/16/2009 @ 6:11pm

    Thank you for articulating that for all of us sir.

    Posted by freiheit1 at 07/16/2009 @ 6:55pm

18. Thank you for articulating that for all of us sir.

    Posted by freiheit1 at 07/16/2009 @ 6:55pm

    Thx Frei..it was rather obvious.

    Posted by antisocialist at 07/16/2009 @ 7:00pm

19. Posted by antisocialist at 07/16/2009 @ 6:11pm

    Could it be that the "feminist difference" ktrig is talking about is essentially providing a female perspective to the application of law?

    For example: when a case comes before the Court, say Ledbetter v. Goodyear Tire and Rubber Company, there might be some more reasonable standard applied than 180 days for filing a discrimination lawsuit that is both consistent with the Constitution, the U.S. Code and common sense.

    The basis for your objection is all your smuggled in assumptions and the fact that you seem to believe you know more about the application of law than people who have gone to law school, practiced as attorneys and have served as judges for many years.

    What qualifications do you have for your claims of authority? You may have a degree in theology and can play the authority card with the Bible, but you don't have a J.D. - which means you have to make better arguments beyond I say so.

    As it stands, your arguments rate: "steaming pile".

    Posted by srjenkins at 07/16/2009 @ 7:16pm

20. Posted by Kristev at 07/16/2009 @ 6:26pm

    Particularly Thomas. He doesn't believe in Constitutional stare decisis. I think that pretty much defines activist judge. Also the fact that "originalism" is basically an idea from the 1980s means that this flavor of judicial intepretation is itself a form of activism.

    But, as usual, the trick is to claim the other guy is doing what you are doing. It makes any claims by the other guy about you less persuasive.

    Posted by srjenkins at 07/16/2009 @ 7:22pm

21. Posted by Happy at 07/16/2009 @ 5:38pm

    As Larry/antisoc noted, it was never a matter of Sotomayor getting confirmed...that was a given.

    What the real story was, was whether Senate Repubs (the "real Repubs", not "RINOs" like Snowe and Collins) were going to "hang tough" against the "radical racist" and support what Rush and Newt have been telling you guys in the base about her for a month....

    they aren't.

    Which means they feel safer ignoring you...than risking women and Latino voters.

    I guess they figure you aren't going anywhere anyway, huh?

    Posted by Mask at 07/16/2009 @ 7:23pm

22. Thank you for articulating that for all of us sir.----Posted by freiheit1 at 07/16/2009 @ 6:55pm

    WHO is "all of us", FREI?

    Posted by Mask at 07/16/2009 @ 7:25pm

23. <Could it be that the "feminist difference" ktrig is talking about is essentially providing a female perspective to the application of law?

    As it stands, your arguments rate: "steaming pile".

    Posted by srjenkins at 07/16/2009 @ 7:16pm>

    Whether it is merely a "female Perspective" or the "feminist perpsective" as Ktrig actually wrote, both are wrong.

    <I want her to do more than maintain the laws that feminists and civil rights activists worked so hard to pass. I want her to make a feminist difference on the High Court. Please, Sonia, be that wise Latina woman.

    Posted by ktrig at 07/16/2009 @ 5:43pm>

    it seems obvious that she is saying that she wants a court that rules from the perspective of feminism. that is unconstitutional to suggest that rulings be made on the basis of a particular gender or political philosophy.

    The fact that you think my opposing that type of discrimination stinks reflects badly on you SRJ.

    BTW the addon comments are both inaccurate and simply ad hominem rather than substantive. I have never said that <the fact that you seem to believe you know more about the application of law than people who have gone to law school, practiced as attorneys and have served as judges for many years.>

    I don't want justices ruling based upon their gender, ethnicity, or political party. I want them to rule based upon what the Constitution says.

    Posted by antisocialist at 07/16/2009 @ 7:28pm

24. WHO is "all of us", FREI?

    Posted by Mask at 07/16/2009 @ 7:25pm | ignore this person | warn this person

    him, HAP, RIO, and BARRY.

    Posted by dexter666 at 07/16/2009 @ 7:34pm

25. WHO is "all of us", FREI?

    Posted by Mask at 07/16/2009 @ 7:25pm | ignore this person | warn this person

    him, HAP, RIO, and BARRY.

    Posted by dexter666 at 07/16/2009 @ 7:34pm

    Yup.

    Thanks for articulating that for all of us, dex!

    Posted by schnellerheinz at 07/16/2009 @ 8:02pm

26. As it stands, your arguments rate: "steaming pile".

    Posted by srjenkins at 07/16/2009 @ 7:16pm

    actually, they've lost much freshness.

    more like the stuff the spring thaw reveals left over from the previous november.

    Posted by frosty zoom at 07/16/2009 @ 8:06pm

27. srj,

    thanks so much for the browser site.

    Posted by frosty zoom at 07/16/2009 @ 8:15pm

28. All the deceptive convient LIEING and obfuscation that Sotomayor did during the hearing will be borne out during her service when her obvious bias and prejudice and racial hatred is clearly on display for all to see! We expect nothing less!

    Posted by BigPasture at 07/16/2009 @ 8:45pm

29. Posted by antisocialist at 07/16/2009 @ 7:28pm

    At base, feminism is the idea that men and women should be treated equally. I can think of no better place to apply this concept than treating the different genders the same under the rule of law. This is most definitely consistent with the Constitution - since the passing of the 19th Amendment. It also shows how bogus originalism is because the framers were not thinking about women when they were talking about rights.

    I didn't assert that you said it. I assert that your comments suggest that you believe you understand how to apply the law better than people that have been actually doing it for a majority of their lives. I find this to be a dubious proposition.

    "I don't want justices ruling based upon their gender, ethnicity, or political party..."

    I'll refer you to my previous example. It is not a Constitutional question - but it is a question that impacts a majority of the population and was not one the sole female member of the court agreed with. Perhaps the justices in this case did rule based on their gender since they aren't subject to the problems that this case reveals? Hard to identify with the problems of women and the just application of law that impact on one sex when you belong to the other.

    Posted by frosty zoom at 07/16/2009 @ 8:15pm

    It is the single best RSS feed I use these days. I'm glad you found it useful.

    Posted by srjenkins at 07/16/2009 @ 8:46pm

30. <i>Posted by srjenkins at 07/16/2009 @ 7:22pm </i>

    The claim that originalism was invented in the 1980's is simply false. The term may not have been in use until then, but it existed, I'd argue, since Marbury v. Madison.

    Read the analysis that Justice Marshall uses. He pins his analysis on the text of the Constitution, and the right of the people who ratified the Constitution to write their will down onto that text. The ONLY logical implication from that statement is that the meaning of the Constitution is ascertained by the meaning of the words as they were written down. Why? Because it was those words, with a certain meaning behind them, that were enacted. They did not enact a vacuum into which justices were free to pour their own political philosophy.

    You can also take a look at Justice Curtis' very nice dissent in Dred Scott if you want another example.

    One might say that originalism is the astonishing proposition that there was a Constitution ratified in 1787, and its meaning may be altered by precisely one broad means: the amendment process. Activism isn't "overturning the legislature a lot"; it's (for all intents and purposes) allowing political activism to intrude into the judicial process. That's why the name activism is used; it's not because judges shouldn't ever be active, it's because judges shouldn't make courts a venue for political activism. Any scenario in which a judge imposes their own political philosophy in the place of the Constitution ratified by popular consent is going beyond their legitimate authority.

    Posted by Thrawn at 07/16/2009 @ 9:26pm

31. Well written to the conclusion. I think they're boxed in by the implications of voting against her (increasing the attrition of republican Hispanics). Has to be something very powerful to slow the "no" instinct from these leaders of the party of no.

    DIVERSION: How's Ted Kennedy?

    Back again. The "no" will surely be back to attempt to choke the life out of the 'public option' on the health care front.

    The Dems need a mega Latina superstar to make this link, "a no to public option, is a no to all Hispanics"!

    Posted by winyahn at 07/16/2009 @ 10:20pm

32. Posted by Thrawn at 07/16/2009 @ 9:26pm

    I made two claims: (1) Originalism is an idea from the 1980s. (2) Originalism is a form of judicial activism.

    You are asserting that the idea of originalism is somehow inherent in Marbury v. Madison, which one could argue was an act of judicial activism itself. But leaving that issue aside for a moment, can you explain why this idea went a full 175 years before it was given a label - if it existed as a rationale as you contend? That's a bit counter-intuitive.

    But let's turn to the text of Marbury v. Madison, as you suggest:

    "To grant a commission to a person appointed, might perhaps be deemed a duty enjoined by the constitution."

    There is a lot of mights, perhaps and other qualifiers around this opinion that are different from the characteristic use of "Constitution" and the arrogance of people of the originalist persuasion. Constitution is always small "c" in this decision.

    It is worth noting that the text of the opinion also refers just as frequently to English common law as it does to the constitution.

    "Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et al. states with much precision and explicitness the cases in which this writ may be used...'Whenever,' says that very able judge, 'there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern or attended with profit), and a person is kept out of possession, or dispossessed of such right..."

    Why would the justices feel the need to refer to English common law from 1266 if it was all right there in the constitution?

    No, I'm afraid your arguments are bad. Originalism is a form of judicial activism. It is also false. It does not describe how judges actually decide.

    Posted by srjenkins at 07/16/2009 @ 10:48pm

33. Posted by Thrawn at 07/16/2009 @ 9:26pm

    "One might say that originalism is the astonishing proposition that there was a Constitution ratified in 1787, and its meaning may be altered by precisely one broad means: the amendment process."

    I agree it is an astonishing proposition given that our entire legal system is based on common law and was only codified in the 20th century - which then made it possible to turn to some kind of strict fundamentalist view of the written word being the ultimate authority on what the law is, or should be. It was not possible before then, and there is a reason it didn't rear its ugly face until the 1980s - because the legal infrastructre wasn't in place to support such a radical reinterpretation of the law.

    And that's what originalism is - a radical reinterpretation wearing the guise of the "one true religion". I reject it. It's bad thinking. It's bad law. It doesn't describe the way the world works. It is a fantasy of a few that either don't know enough about the law to know any better and those that know enough but are more interested in pursuing their agenda - which invariably is about power.

    Posted by srjenkins at 07/16/2009 @ 10:54pm

34. <i>Posted by srjenkins at 07/16/2009 @ 10:48pm </i>

    Since the empirical war about how judges actually decide will only muddle the discussion, I'll focus strictly on the merits.

    First off, the "title" argument is silly. The fact that an idea isn't specifically named might signal that it's not really a significant system of thought...or that it's taken as a given. This argument doesn't mean anything.

    Second, there's a reason why English common-law was deemed relevant. The standard of originalism is to see what meaning the people ratified when they adopted the Constitution. Since English common-law was embedded in many of the terms provided (ex: search & seizure), it was entirely relevant to the case.

    Finally, you ignore the crux of my analysis. Why did Marshall focus so heavily on the notion of a written Constitution if not to say that it was the standard for judgment?

    As I argued, the premises behind originalism are quite simple (and have yet to be fully responded to):

    1) In 1789, the people ratified the Constitution.

    2) That Constitution meant something

    3) The people built in an exclusive mechanism by which the principles in the Constitution may be changed...the amendment process.

    If the Constitution (meaning the principles ratified into law) meant X in 1789, the only way to make it mean something-other-than-X is to amend it. That's literally all that originalism says. As I said, Marshall's opinion supports this, as does Curtis' in the dissent to Dred Scott.

    From your position, upon what ground may a judge legitimately rely when striking down a law? By your analysis, he must either reconstruct the Constitution in his own image or impose his preferred political philosophy on a population that disagrees. How comes a judge by that authority?

    Posted by Thrawn at 07/17/2009 @ 12:01am

35. How comes a judge by that authority?

    Posted by Thrawn at 07/17/2009 @ 12:01am

    they get it from goldman sachs, just like everybody else.

    Posted by frosty zoom at 07/17/2009 @ 01:06am

36. Thanks for providing a good example of why the fringe element of feminism is anti-American and hates the constitution.

    Posted by antisocialist at 07/16/2009 @ 6:11pm

    You sure do paint with a broad brush here anti. Saying that you want someone to bring their life experience to the court doesn't even begin to equate to being anti-American or hating the Constitution. You presume wayyyyy too much in knowing what someone you don't know feels or thinks. That is like me saying that because you are in favor of warrantless wiretaps that means you hate America and you want a Big Brother like fascist dictatorship. I can't possibly actually know that.

    I would be careful which size brush you paint with Larry. You open yourself up for others to do the same and leave yourself little argument against it.

    Posted by Cccomfo1 at 07/17/2009 @ 02:07am

37. Don't forget he then has the gall to be offended when the same is done to him.

    Posted by TexasFlood at 07/17/2009 @ 02:56am

38. "I would be careful which size brush you paint with Larry. You open yourself up for others to do the same and leave yourself little argument against it."-------Posted by Cccomfo1 at 07/17/2009 @ 02:07am

    And three posts later on another thread, he'll post how much he hates it when "liberals stereotype conservatives"....and see no discrepancy.

    Posted by Mask at 07/17/2009 @ 05:56am

39. Shouldn't you all be so proud of all that feel-good Hopey and Changey?

    Posted by Happy at 07/16/2009 @ 3:53pm

    Shouldn't you be getting your diaper changed?

    September 4, 2008 11:38 PM EST"ST. PAUL, Minn. -- John McCain, a POW turned political rebel, vowed Thursday night to vanquish the "constant partisan rancor" that grips Washington as he launched his fall campaign for the White House. "Change is coming," he promised the roaring Republican National Convention and a prime-time television audience."

    McCain's appearance was the climax of the final night of the party convention, coming after delegates made Palin the first female vice presidential nominee in Republican history.

    "She stands up for what's right and she doesn't let anyone tell her to sit down," McCain said"

    BUWHAHHHHAAAA.

    "I'm not a quitter...I'm not a quitter...I AM NOT A QUITTER!!

    I quit".

    Posted by crabwalk at 07/17/2009 @ 06:54am

40. Republicans to vote to place radical racist activist on Supreme Court.

    Or

    republican pundits were full of steaming piles of Larry.

    Which is it neo-cons?

    Posted by crabwalk at 07/17/2009 @ 07:02am

41. From your position, upon what ground may a judge legitimately rely when striking down a law? By your analysis, he must either reconstruct the Constitution in his own image or impose his preferred political philosophy on a population that disagrees. How comes a judge by that authority? Posted by Thrawn at 07/17/2009 @ 12:01am |

    How about when the law does not pass Constitutional muster?

    Is insuring that our laws do not violate Constitutional principles (original, or otherwise, via amendments) also `activism'?

    Posted by snowball777 at 07/17/2009 @ 07:51am

42. This Sotomayor nomination should be a lesson on politics in this country, but it probably won't be.

    There is gloating going on now that Sotomayor will apparently get confirmed (see article and blogging above), and that Republicans won't stand in her way.

    By and large, the GOP in the Senate has treated her with deference and civility and respect.

    The same was true with the 2 Supreme Court Nominees that Slick Willie put before the Senate, Ruth Bader Ginsburg and Stephen Breyer.

    Contrast that with some recent GOP nominees, Robert Bork, Clarence Thomas, John Roberts and Samuel Alito.

    Bork was successfully taken out, Ted Kennedy was raring to go with the crucifixion within an hour after the nomination.

    And the political left tried mighty and hard to do the same to Justice Clarence Thomas, creating a sickening spectacle the nation watched on television.

    In the case of the 2 George W. Bush nominees, Roberts and Alito, the situation then seemed to be the same as now with Sotomayor - the Democrats did not have much real chance to prevent the confirmations.

    But Democrats in the Senate turned the hearings into spectacles anyway, behaving like ravenous wolves, switching off between attempts at crucifixion of the nominees and ponitificating their own beliefs.

    And any time a Republican president nominates someone for the Court, the Democrats conduct a fishing expedition to try and trap the potential nominee into any kind of public statement or statement before the committee that they would try to overturn Roe v. Wade, which Democrats want thought of as "settled law". ("settled law" appears to be legal rulings that liberals favor and believe once in place for one minute can never, ever be overturned....)

    Why don't people stop voting Democrat?

    Posted by sjchermak at 07/17/2009 @ 07:56am

43. Posted by antisocialist at 07/16/2009 @ 7:28pm |

    "it seems obvious that she is saying that she wants a court that rules from the perspective of feminism."

    It SEEMS obvious to me that you've missed the point that ktrig desires ONE JUSTICE to rule, within the framework presented by the Constitution, without losing the perspective of feminism. Anything beyond that is invention on your part...a straw-woman, if you will.

    "that is unconstitutional to suggest that rulings be made on the basis of a particular gender or political philosophy."

    Tell that to Scalia.

    Do we really need to get Congress to pass an amendment in order for unequal treatment of one gender to be considered bad for society as a whole?

    Or is that just the way that you maintain support for the status quo?

    "The fact that you think my opposing that type of discrimination stinks reflects badly on you SRJ."

    And your hypocrisy and straw-woman tactics reflect poorly on you, Anti.

    "I don't want justices ruling based upon their gender, ethnicity, or political party. I want them to rule based upon what the Constitution says."

    Why do you assume these activities are mutually exclusive? Because it gives you a bogus talking point?

    Posted by snowball777 at 07/17/2009 @ 08:00am

44. Posted by sjchermak at 07/17/2009 @ 07:56am

    Hey, SJ....has Rush on his website come up with an explanation for why a LOT of Senate Republicans are going to ignore what he's been saying about how Sotomayor is a "racist"?!???!?

    Posted by Mask at 07/17/2009 @ 08:08am

45. <i>Posted by snowball777 at 07/17/2009 @ 07:51am </i>

    That's easy. A law fails to pass Constitutional muster when it is inconsistent with the Constitution. That's the only legitimate grounds upon which a law can be struck down.

    But notice what's implied there. As Marbury v. Madison said, it is clearly the duty of the judiciary (and was clearly understood by "the judicial power") to say what the law is. When a statute contradicts the Constitution, you have a direct clash between supreme law of the land and statutory law; supreme law trumps.

    What's so strange about striking down a law on NON-originalist grounds is that the clash is between a statute and either:

    a) A Constitution the judge has invented in his/her own image, or

    b) The judge's own political philosophy

    The Constitution is legitimate grounds for striking down a law because it is the supreme law of the land; a judge's political philosophy is not.

    Since the Constitution has to be the standard, the relevant question is this: how do we ascertain what the Constitution means? Well, that's where the other argument I made comes in:

    a) The Constitution meant something when enacted, i.e. there were certain principles embedded within it when it was created, and

    b) There was exactly one means included by which the Constitution's meaning could be changed: the amendment process

    The logic seems to track pretty cleanly; the Constitution's provisions mean what they were understood to mean when enacted, with the caveat that if there's a conflict, new amendments trump older material (otherwise amendments wouldn't mean much).

    That framework is why I defend originalism. It's not about power and it's not about imposing a specific ideology. Sometimes liberals are right, sometimes conservatives are.

    Posted by Thrawn at 07/17/2009 @ 08:37am

46. Posted by sjchermak at 07/17/2009 @ 07:56am |

    "Bork was successfully taken out..."

    A lesson in not nominating ridiculously partisan, `activist' judges.

    "And the political left tried.. to do the same to..Clarence Thomas, creating a sickening spectacle the nation watched on television."

    The least qualified justice ever to be confirmed...and for the same reasons Pugs claim Sotomayor will be.

    "In the case of the 2 George W. Bush nominees, Roberts and Alito, the situation then seemed to be the same as now with Sotomayor..."

    So it's okay when PUGS have a lock, just not Dems?

    "But Democrats in the Senate turned the hearings into spectacles anyway, behaving like ravenous wolves, switching off between attempts at crucifixion of the nominees and ponitificating their own beliefs."

    And Jeff Sessions stuttering attempts are what? A wolf cub?

    "And any time a Republican president nominates someone for the Court, the Democrats conduct a fishing expedition...that they would try to overturn Roe v. Wade, which Democrats want thought of as "settled law"."

    And any time Dems nominate someone, the focus shifts to your ever-popular 2nd amendment right to bear assault weapons in bars.

    " ("settled law" appears to be legal rulings that liberals favor and believe once in place for one minute can never, ever be overturned....)"

    You mean like statutes against marriage of gay people? That kind of thing?

    "Why don't people stop voting Democrat?"

    Because the permanent minority of, "No", can't admit that their platform doesn't appeal to 72% of the country or take the reins without running the whole smash into a ditch.

    Posted by snowball777 at 07/17/2009 @ 08:41am

47. Posted by Thrawn at 07/17/2009 @ 12:01am

    This is fantasy. Is your contention that people have ideas, use them in their reasoning, base their entire system of law on them...but don't bother naming them until 175 years later. No, this is obviously false. They name it the moment the idea comes into existence so they can use it as shorthand.

    What is the first thing humans do when they come across a new animal, create a new idea, or invent a new product? They name it. While there may be some antecedents, it doesn't exist until it has a name.

    So, you might talk about how the Roman Empire built a NETWORK of roads, but you are engaged in anachronism. Network was not an a concept Romans used, because the idea centers on computers - which they didn't have. Alliances? Trade routes? Interdependencies in a feudal town? These all can be argued to be a form of NETWORK , but they all mean something quite different despite the similiarities. And so it goes with originalism.

    "Since English common-law was embedded in many of the terms provided (ex: search & seizure), it was entirely relevant to the case."

    You realize that by making this admission you have sunk your own argument. If the terms depended on common law, why would the framers have a static notion of the law as what we decided at the point of ratification of the constitution, rather than the common law tradition of England - and of their own country's law as it developed? It would seem logical to conclude that the framers assumed legal definitions and application would change within the context of stare decisis - which did not rely only or even primarily on the constitution.

    I'm not laying out a position. I'm showing you that yours makes no sense. It's weak and based on wishful thinking. Let's focus on that problem.

    Posted by srjenkins at 07/17/2009 @ 09:01am

48. Posted by Thrawn at 07/17/2009 @ 08:37am |

    "a) The Constitution meant something when enacted, i.e. there were certain principles embedded within it when it was created, "

    Aye, there's the rub...what is that `original' meaning?

    And is it the same for everyone who reads it, be that myself, James Madison, or Justice Scalia?

    As an example, cons tend to gloss over that pesky clause at the beginning of the 2nd amendment.

    Was it prefatory? An ablative absolute? Which of these?

    I agree with you on originalism, but I believe, with our future interpretations having been guided by it, the need to be `religiously scrupulous' with the language we put down becomes all the more important.

    Posted by snowball777 at 07/17/2009 @ 09:03am

49. Posted by srjenkins at 07/17/2009 @ 09:01am |

    "So, you might talk about how the Roman Empire built a NETWORK of roads, but you are engaged in anachronism. Network was not an a concept Romans used, because the idea centers on computers - which they didn't have."

    Not to pick nits for nada, but since we've waxed linguistic and etymological on this thread already, you might say that 'network' is an adjective describing things with many interconnections, as a fishing net, so the Romans could certainly have described the systems with which they criss-crossed (no idea where that one comes from) their Empire, in such language.

    Posted by snowball777 at 07/17/2009 @ 09:08am

50. Posted by snowball777 at 07/17/2009 @ 08:41am

    SJ just pissed that Senate Repubs are obviously not that worried about "losing him" (or the ditto-heads) in 2010 and feel pretty safe ignoring them.

    Posted by Mask at 07/17/2009 @ 09:10am

51. Posted by Thrawn at 07/17/2009 @ 12:01am

    "From your position, upon what ground may a judge legitimately rely when striking down a law? By your analysis, he must either reconstruct the Constitution in his own image or impose his preferred political philosophy on a population that disagrees. How comes a judge by that authority?"

    Even though this discussion should be about how terrible an idea originalism is - I'll comment on this one.

    The judge, by virtue of her position which he presumably earned because of her knowledge of the law and just sense of applying it, has to judge the merits of a specific case and assess if justice has been served in that case. The role of the Supreme Court is to resolve systemic problems with just legal opinions to help guide lower courts in making their decisions.

    They are to rely on the principles laid out in the constitution, common and statutory law and common sense to arrive at a just application of law. The judge needs judgment. If the law was what you think it is, we could just have one computer make all our decisions for us. But, since we are talking about thorny legal, moral, economic and other issues, a computer, or a justice pretending he is one, cannot resolve these issues justly.

    What is necessary, is judgment. Secondary to that, it would be good to have a judicial body that was representative of the people it served - so we don't have NETWORKS of white, male judges deciding on issues they don't understand and thus, more likely to rule unjustly upon.

    Posted by srjenkins at 07/17/2009 @ 09:16am

52. Posted by snowball777 at 07/17/2009 @ 09:08am

    The OED has the first instance of networke for interconnected threads dates back to the 1530 Tyndale Bible. However, it wasn't used in English for a "netlike or complex system or collection of interrelated things, as topographical features, lines of transportation, or telecommunications routes" until 1839.

    It would be surprising that it would take this long to develop this way of using it in English if the concept already was used in Latin, don't you think? It also is suspiciously close to the development of railroads, the telegraph and the like.

    Still, it is a good question. I probably should have checked first before using this example. I still think it holds though.

    Posted by srjenkins at 07/17/2009 @ 09:27am

53. This is one of the stupidest articles ever written. What an attempt to make much ado about nothing!

    There was never any doubt that Sotomayor would be confirmed. Even if the GOP had the 41 votes necessary to hold a filibuster, they would not have used them. With 60 Dem seats in the Senate, is or was there any doubt that Sotomayor would be confirmed? Of course not.

    To minimize Sotomayor's "wise Latina" comments as most liberals have is just plain wrong. These were shocking words to come out of a Federal judge's mouth, and they betrayed a possible ideology that perhaps was kept in check in her circuit bench rulings by the spectre of SCOTUS overturns. The hearings really have shed little light on this, so only time will tell whether Sotomayor is the flaming ideologue feared by the GOP or a solid judge who will follow law and the Constitution in her rulings.

    Anyone who cannot see the troubling nature of Sotomayor's ruling in the Ricci case has no eyes to see. In this case, firefighters aho earned promotions through the established rules were clearly discriminated against due to their race. Perhaps Sotomayor's ruling applied her understanding of the law correctly, and admittedly the ruling was overturned by only 5-4, but most Americans see this SCOTUS overturn as justice, not a travesty. Only the staunchest supporters of racial affirmative action could agree with Sotomayor's decision (and note that NONE of the SCOTUS justices agreed with the reasoning behind her decision even though they voted the same way).

    It will be nice when America returns to being concerned about right and wrong rather than right and left. I hope there is an America left when the day comes.

    Posted by boyydz at 07/17/2009 @ 09:33am

54. Posted by sjchermak at 07/17/2009 @ 07:56am

    You view the world through an interesting lense. I would say your prescription is due for updating

    Posted by crabwalk at 07/17/2009 @ 09:51am

55. Posted by srjenkins at 07/17/2009 @ 09:27am |

    Oh what a tangled web we weave...

    http://keithbriggs.info/network.html

    And then there's Indra's...

    http://en.wikipedia.org/wiki/Indra's_net

    While I think we agree that 'textualism' is a farce, I count myself as a proponent of 'original intent' and am happy with the amendment process to keep our Constitution 'living', while you seem to be a fan of the slippery slope of dynamism that is a 'Living Constitution'.

    Correct?

    Posted by snowball777 at 07/17/2009 @ 09:51am

56. It is clear that those on the far right do not understand what an appeals court judge does. They do not judge the facts in a case. They wonly judge trial procedure. Sotomayor ruled on the Ricci case based on precedent. Had she ruled the other way she would have been showing "empathy."

    It is the job of the Supreme Court to decide of something is constitutional or not. I think it was kind of pathetic to see Frank Ricci by the far right. Does anyone think he wrote any part of that statement yesterday?

    Sotomayor is the most qualified judge to be placed on the high court in decades. The ABA gave her the same "Highly qualfied" rating that they gave to the right wing ICONS Roberts and Alito.

    Posted by danielt at 07/17/2009 @ 10:22am

57. Frank Ricci is the new "Joe the Plumber" of the far right.

    Posted by danielt at 07/17/2009 @ 10:24am

58. <i>Posted by srjenkins at 07/17/2009 @ 09:16am </i>

    The judge can earn their position only through knowledge of the law and good analytical faculties for applying it. They do NOT earn their position based on some kind of superior moral discernment. It doesn't exist! Judges are no better at discerning justice than most of the rest of us.

    Put quite simply...your position requires us to believe that a Supreme Court justice's own political philosophy (or perhaps, the aggregate political philosophy of a given majority) is the supreme law of the land. But it isn't; the Constitution is. This is why your position can't survive.

    And what's also telling is that through all of this, you have yet to point to the flaw in the argument I gave. I offered three premises:

    1) The people ratified a Constitution

    2) That Constitution is the supreme law of the land

    3) That Constitution meant something upon enactment

    4) The way through which that meaning, by which I mean the principles that inform specific cases, may be changed is the amendment process

    You continue to attack originalism, but not one of these has been disputed. Taken together, I don't see how any conclusion other than originalism follows.

    That said, I take snowball's point; there can be a lot of reasonable debate about what the original understanding was and how it applies to the case at hand. That's fine, and it's also why srjenkins' "just use a computer, then" point is silly.

    Relatedly, a judge should be confirmed so long as he or she is committed to faithfully apply the Constitution as the exclusive standard by which laws may be struck down. If that judge believes that the original understanding leads to "politically liberal" results in many cases, that shouldn't be a barrier to confirmation.

    Posted by Thrawn at 07/17/2009 @ 10:27am

59. Why don't people stop voting Democrat?

    Posted by sjchermak at 07/17/2009 @ 07:56am

    well,

    when your only choices are between venal and venaller...

    Posted by frosty zoom at 07/17/2009 @ 10:29am

60. Sotomayor had the same ABA rating as right wing God's Alito and Roberts. She had a far higher rating that Thomas who was barely qualified.

    Posted by danielt at 07/17/2009 @ 10:34am

61. Posted by snowball777 at 07/17/2009 @ 09:51am

    Your first link to Keith Briggs basically says the same thing I said. It's an English word - not applied in the abstract sense until later.

    He adds in speculation that opus reticulatum means network and might have been instrumental in its formation. But this kind of speculation is basically what Thrawn is doing with his originalism. He's taking his concept and trying to fit it in to previous expressions to show that they were somehow a prototype. At least Keith has the good sense to use "might".

    As for Indra's net, English may be an Indo-European language, but Buddhist influence certainly wasn't present until after the establishment of the British empire in the late 16th century.

    In other words, you're reaching. This is also a minor point.

    At base, I'm a legal realist. It's all well and good to want the law to follow some kind of positivist formulation such as 'original intent', but the question I think is most relevant is "How is law actually decided?"

    Original intent has the same exact problems as textualism. In both cases the judge can read what they want or even inadvertently read what is not there (due to the limits of perspective caused by their historical moment and other factors) into the text or their notions of "original intent".

    On a previous thread, Darin argued that adult films were not covered by the 1st amendment because the framers could not have meant film because it didn't exist. Another person focus on "original intent" might talk about the principle that applied to Sade's Justine would surely apply to adult films. Which is the correct interpretation of original intent?

    I think it is besides the point. It is important only in that it shows that original intent is a nebulous concept.

    Posted by srjenkins at 07/17/2009 @ 10:36am

62. Posted by snowball777 at 07/17/2009 @ 09:51am

    It's obvious you need a mechanism like stare decisis to give regularity to the law, that's essentially what originalists are trying to recreate with their original intent and textualism arguments.

    The issue is that we have a common law system that balances these two worlds - where text is interpreted within a large legal framework and within the context of previous decisions. This gives regularity and flexibility.

    The problem with the Living Constitution label is that people tend to forget that judges are dealing with particular cases, and as such, are limited in their ability to interpret law. When you add in principles of stare decisis or even positivist constructions where they believe they are acting in original intent, they become much more limited in how they can change the interpretation of the law.

    I don't mind reinterpretations, even originalism, so long as the end product is more just decisions. However, my observations is that this is frequently not the outcome of decisions made by originalist judges - because that is not their goal. Their goal is to apply the law according to some rigid algorithm where justice takes a back seat. In so far as that is true, it is an abomination.

    Posted by srjenkins at 07/17/2009 @ 10:46am

63. Just a generic, "house-keeping" comment...to avoid any confusion. Remember...

    srjenkins and sjchermak are two VERY different posters.

    Posted by Mask at 07/17/2009 @ 10:54am

64. Posted by srjenkins at 07/17/2009 @ 10:46am |

    Which is more nebulous...'discerning original intent' or 'having a sense of justice'?

    Justices are not as deterministic as computers, but the law, at least in the ideal, should be.

    Posted by snowball777 at 07/17/2009 @ 10:55am

65. Posted by Thrawn at 07/17/2009 @ 10:27am

    "They do NOT earn their position based on some kind of superior moral discernment."

    This is not a claim I made. They are simply in the position to make the decision. The problem you are finding, this and even time you bring this into the discussion, is one of your own device.

    "Your position requires us to believe that a Supreme Court justice's own political philosophy (or perhaps, the aggregate political philosophy of a given majority) is the supreme law of the land."

    It only requires you to believe that the law is what the Supreme Court says it is - which is exactly true under the constitution.

    "And what's also telling is that through all of this..."

    What is telling is the fact that you keep bringing this up and do not understand that it is irrelevant. I've attacked originalism as a reinterpretation of the law and of the constitution. I've attacked it on the grounds that no one can agree on what constitutes this premise:

    "That Constitution meant something upon enactment."

    What did it mean? Particularly, what does it mean in the context of a rich common law tradition that this document assumes and is based on? It means that as common law changed, so did the constitution.

    Boom. The argument is shattered, and you can't even see it. Most telling indeed.

    "...I don't see how any conclusion other than originalism follows."

    I can agree that this is a framing problem and has to do with your perception.

    "...there can be a lot of reasonable debate about what the original understanding was and how it applies to the case at hand."

    How is variable understanding different from judges making decisions based on their preferences? It isn't. Orginalism only "works" if it means something definite. It doesn't. End of story.

    Posted by srjenkins at 07/17/2009 @ 10:59am

66. Posted by snowball777 at 07/17/2009 @ 10:55am

    They are equally nebulous. The only difference between the two is one (originalism) is pretending that it is legitimate because it is based on something definite, when it is not.

    "Justices are not as deterministic as computers, but the law, at least in the ideal, should be."

    The law should be just, not deterministic.

    Posted by srjenkins at 07/17/2009 @ 11:02am

67. Posted by srjenkins at 07/17/2009 @ 10:36am |

    "On a previous thread, Darin argued that adult films were not covered by the 1st amendment because the framers could not have meant film because it didn't exist."

    I find this at odds with my own concept of original intent with respect to the 1st as a guarantee of freedom, but would also offer that this is a textualist argument.

    In the Constitution (in my head?), there's no place for obscenity laws and censorship of something easily ignored by even the staunchest of "Miller test" communities.

    Posted by snowball777 at 07/17/2009 @ 11:16am

68. The law should be just, not deterministic. Posted by srjenkins at 07/17/2009 @ 11:02am |

    If we (the people, and by extension, the SCOTUS) do our jobs 'right', those properties shouldn't be mutually exclusive and we can have both.

    Posted by snowball777 at 07/17/2009 @ 11:19am

69. It was the bare numbers of Democrats in the Senate as well as the Republicans' respect (unlike the Dems disrespect)for the advice and consent clause and the President's rights and authority thereunder as well as that of their fellow Senators in declining to threaten the (unconstitutional) judiicial filibuster, that prompted a rather uneventful foregone conclusion to seat a less than candid, far leftist, racists, sexist, pedesatrian legal mind (the result of affirmative action)to the World's (not just this Nation's)most important judicial body. Nevertheless, the Republicans did succeed at exposing Sotomayor for what she is (see above) and did so without offending Hispanics, nor pandering to the group paternalistically as if they are too dumb to see through such ploys which are the modus operandi of liberals.Republicans also exposed Sotomayor's shameless dishonesty: Courts of Apeeals is where policy is made vs. Fidelity to the law. Which is it, Sonia? Suddenly she is a Scalia-esq originalist at the hearing yet she was a liberal jokester at Duke. "Personal experiences affect the facts that judge chooses to see." My God! A 6th grade civics student knows better than that -- First, judges shouldn't "choose" to see facts if they are impartial the facts in a record present themselves. Second, if you're incapable of exercising such self control to the point that your personal experiences render your ability to view facts in an inescapbaly partial manner, you really ought to consider a job at Home Depot or Walmart rather than with the judiciary.

    Lastly, her explanation of the wise latina comment was simply not credible. The role of her ethnicity and gender, rather than any special legal prowess, in all of this is especially disheartening.

    Posted by Eaglebeagle at 07/17/2009 @ 11:21am

70. Another thought that just occurred to me that is applicable to originalism:

    "Should juries be deciding guilt and innocence for cases based on what the founding fathers, legislatures and so forth thought when they enacted law or should the decide according to their own sense of justice?"

    "Should laws contain explicit sentencing guidelines or should we rely on a judge's sense of what is appropriate in a particular case?"

    Why does this change when we get to appellate courts?

    Posted by snowball777 at 07/17/2009 @ 11:16am

    You might argue that the Miller test with its reliance on contemporary community standards is a good line of attack against textualism and original intent.

    Is it not possible that the founders intent was for a free people to be able to decide for themselves - rather than be constrained by their ideas and the ideas of their time? Maybe the reason Article 3 is so short is the didn't want to over-prescribe.

    It fails the common sense test too. Perhaps we all would have been better off if they would have followed the ideas around "divine right of kings" rather than take the new ideas of Locke and form a government around them? You think our founding fathers would have wanted to constrain the following generations to Locke - if they could find a better way to govern themselves?

    But what about the Amendment process? It is there to solve large problems. It was not designed to correct changes in the founder's "original intent".

    But to your point, I think the principle of the constitution is to favor freedom of expression - but it is also clear that this needs to be weighed against competing freedoms (like the freedom not to be trampled in a crowded movie theater). The judge's job is to figure that out - and founders intent is of limited use.

    Posted by srjenkins at 07/17/2009 @ 11:39am

71. Posted by snowball777 at 07/17/2009 @ 11:19am

    True enough. But, let's err on the side of justice if we must choose.

    Posted by srjenkins at 07/17/2009 @ 11:40am

72. Posted by Eaglebeagle at 07/17/2009 @ 11:21am

    Hey, Eagle....bad news. The polling is against you on that.

    and the WORSE news?.....it's a

    Rasmussen poll!!!!!!

    www.rasmussenreports.com

    Posted by Mask at 07/17/2009 @ 11:42am

73. Posted by srjenkins at 07/17/2009 @ 11:39am |

    "Should juries be deciding guilt and innocence for cases based on what the founding fathers, legislatures and so forth thought when they enacted law or should the decide according to their own sense of justice?"

    Depends...is Happy one of the jurors?

    They should be deciding in the context of the law, not their 'sense' of justice (although that would put a kink in jury nullification).

    "Should laws contain explicit sentencing guidelines or should we rely on a judge's sense of what is appropriate in a particular case?"

    On this point, you've got me somewhat pegged.

    I abhor travesties like the Rockefeller drug laws and CA's 3-strikes nonsense, but I think the answer is to pass law with flexible sentencing requirements, not hand ourselves over to the potential 'moral hazard' of judges taking payments to reduce sentences for the more well-off among us.

    "True enough. But, let's err on the side of justice if we must choose."

    D'accord...may our moral arcs be bent.

    Posted by snowball777 at 07/17/2009 @ 12:24pm

74. Mask:

    The tell-tale of an inferior argument is its resort to polls rather than facts, reason, logic and intellectual honesty. Reagan had terrible poll numbers, but look at his record and hsitory. Popularity does not equate with truth and virtue. See Germany circa 1939.

    BTW, the polling is against me on point specifically. Identify the point to which you refer and lets have a substantive debate on the merits of the point rather than what a Rasmussen poll states.

    Posted by Eaglebeagle at 07/17/2009 @ 12:29pm

75. <i>Posted by srjenkins at 07/17/2009 @ 10:59am </i>

    There are only two arguments in play at this point. Here is the first:

    <<"That Constitution meant something upon enactment."

    What did it mean? Particularly, what does it mean in the context of a rich common law tradition that this document assumes and is based on? It means that as common law changed, so did the constitution.

    Boom. The argument is shattered, and you can't even see it. Most telling indeed. >>

    What is telling to me is that this is the only premise you attack. Since my conclusion follows inevitably if the other premises are correct, your position survives ONLY if your attack on this premise succeeds.

    It doesn't. The document's meaning is embedded within a common-law tradition that existed to that point, BUT it was not itself meant to authorize common-law decision-making. How do we know this? Marshall himself made this point: we have a written Constitution that defines the powers of government, and sets aside certain boundaries that it may not cross. Your position requires either that the people didn't actually enact much of anything or that historical analysis is impossible. The former position is bizarre, the latter effectively negates the existence of historians.

    The second claim is that if there's debate on the original meaning, that's no different than a policy choice. That doesn't make any sense. The difference is between analysis that is (as much as possible) divorced from your own policy preferences and analysis that is nothing but your own policy preferences.

    Is originalism easy? No, and it's nowhere near perfect...but I've seen nothing that compares to it. Judges are in a position to judge...but by what standards? That's what this whole dialogue is about.

    Posted by Thrawn at 07/17/2009 @ 12:42pm

76. Let me clarify the line of analysis about the common-law, because it was brief and may have been slightly muddled.

    Common-law analysis existed up to that point. Then, the Constitution was written. The words the authors chose were understood to have a meaning that was more than just the dictionary definition of the term. Within the common-law atmosphere of their day, those words meant particular things.

    The key question is...does that mean that as thoughts about those concepts changed, the meaning of the Constitution changed as well? I think this is actually one of the strongest arguments against originalism, but I don't think it succeeds. Constitutional law was never meant to be a common-law system. Stare decisis exists, but justices are not in the strict sense bound by their prior decisions, especially if they got it wrong.

    The Constitution was never meant to be an answer to every pressing social issue that came along; that's what the system of democratic debate and compromise was for. The Constitution could be amended if an issue really needed to be addressed, but the initial plan was for democratic rather than judicial institutions to be the harbingers of reform. Sometimes, they screw up; that's why the Constitution sets boundaries on them. The only way they can be boundaries, however, is if there is an anchor upon which you can rely. Absent that, the rubber band that can bend one way can just as easily bend in the opposite direction.

    Posted by Thrawn at 07/17/2009 @ 12:53pm

77. Posted by snowball777 at 07/17/2009 @ 12:24pm

    "They should be deciding in the context of the law, not their 'sense' of justice (although that would put a kink in jury nullification)."

    I have more confidence in there being one person among twelve to have the decency to do the right thing than I have in a system of law designed to get the other eleven to act as if they had that decency.

    "I abhor travesties like the Rockefeller drug laws and CA's 3-strikes nonsense, but I think the answer is to pass law with flexible sentencing requirements, not hand ourselves over to the potential 'moral hazard' of judges taking payments to reduce sentences for the more well-off among us."

    I think a better answer is to find ways to identify outliers and implement a more frequent and robust review and impeachment process.

    Posted by srjenkins at 07/17/2009 @ 1:09pm

78. Posted by Thrawn at 07/17/2009 @ 12:42pm

    "Since my conclusion follows inevitably if the other premises are correct..."

    For one, I only attack one premise because I'm not interested in completely demolishing your position. I'm more interested in seeing if you can see the problems in it and make a more interesting argument. For two, I don't think your conclusion necessarily follows - as you assert.

    For example, the Miller test is a constitutional intepretation based on setting a contemporary standard. There is no reason to believe that the founders did not intend to do something similar. If that was indeed their intent, then originalism again is shown to be in error.

    "Your position requires either that the people didn't actually enact much of anything or that historical analysis is impossible."

    Actually, they didn't enact much of anything and the common law system wasn't codified until the 20th century. Even if that weren't true, this is also a false dichotomy.

    "The second claim is that if there's debate on the original meaning, that's no different than a policy choice. That doesn't make any sense."

    People attempting to determine "original intent" can, and do, come up with completely different conclusions on a wide variety of Constitutional issues. The only limit is on their creativity in interpretation. If originalism can then be used to justify, more or less, a wide range of position (perhaps any position) it is not any different than judges using their own justifications. In fact, it may amount to the same thing.

    In other words, it is originalism that doesn't make any sense - but since you assume it as fact, "the only way", the problem is invisible to you. You cannot see the criticism because your framing making you blind to it.

    Posted by srjenkins at 07/17/2009 @ 1:23pm

79. <You sure do paint with a broad brush here anti. "I would be careful which size brush you paint with Larry. You open yourself up for others to do the same and leave yourself little argument against it

    Posted by Cccomfo1 at 07/17/2009 @ 02:07am

    And three posts later on another thread, he'll post how much he hates it when "liberals stereotype conservatives"....and see no discrepancy.

    Posted by Mask at 07/17/2009 @ 05:56am>

    Another great example of reading something different than I actually posted. I specifically applied a NARROW application to FRINGE feminism rather than feminism in general.

    <Thanks for providing a good example of why the fringe element of feminism is anti-American and hates the constitution.

    Posted by antisocialist at 07/16/2009 @ 6:11pm>

    Posted by antisocialist at 07/17/2009 @ 2:03pm

80. Can't wait to read your column about how and why the Democrats blocked Miguel Estrada's ascension to the U.S. Court of Appeals.

    Probably will be a VERY long wait, eh?

    Posted by JackDavis1 at 07/17/2009 @ 2:08pm

81. I think it is besides the point. It is important only in that it shows that original intent is a nebulous concept. Posted by srjenkins at 07/17/2009 @ 10:36am

    It is you SRJ that has the radical concept of the role of the Federal Judiciary. Reading Federalist 78 we find that the Supreme Court is to be the least of the 3 branches and it's role is to ensure that the other branches do not expand beyond the limited govt that the constitution provides for.

    <Federalist No. 78

    It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.>

    continued

    Posted by antisocialist at 07/17/2009 @ 2:12pm

82. To SRJ continued on the limited role of the Courts from Federalist 78. And note that Madison said a "limited constitution".

    <Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments

    The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.>

    Posted by antisocialist at 07/17/2009 @ 2:14pm

83. ON PAT BUCHANAN'S RACIST RANTS

    In his racist rants at Rachel Maddow Show (July 16, 2009), Pat Buchanan made many factually incorrect claims. He said that judeg Sotomayor is not qualified to be in the Supreme Court. Continuing, he asserted that only White men built up this country. What about White women, Native Americans and Blacks? Blacks sweated the hard stuff, including building the White House and Capitol Hill. They helped to build our monuments and great houses (especially in the South). Mr. Buchanan said that if affirmative action helped anyone go to top universities, it matters little that that person disguished himself/herself as a student--a category Clarence Thomas falls into. No university worth its salt would give its top honors to anyone on the basis of race, gender or other subjective factors. Buchanan claimed that the top universities in the country give about 50 per cent of their academic honors away--implying not excellence-based but a give away. If true, George W. Bush and John McCain would have gotten one, especially as they have the right connections. Buchanan asserted that White men justifiably deserve to nearly 100% dominance in the Supreme Court for more than century because they have been here from the beginning. That logic is false, especially as Native People were here first and Blacks also have been in North America for more a century. These claims and more are fatuous and must be rightly debunked. Thank God this man was never accepted in public office and never elected President.

    Posted by drsam8 at 07/17/2009 @ 2:30pm

84. Mask:

    The tell-tale of an inferior argument is its resort to polls rather than facts, reason, logic and intellectual honesty....

    Posted by Eaglebeagle at 07/17/2009 @ 12:29pm

    Just for the record on the "poll" MASK claims to be against you (and me).

    THAT poll had 41% "Against" confirmation and 37% "For"...22% did not take a stand!

    Posted by Happy at 07/17/2009 @ 3:11pm

85. Posted by antisocialist at 07/17/2009 @ 2:12pm

    "It is you SRJ that has the radical concept of the role of the Federal Judiciary. Reading Federalist 78 we find that the Supreme Court is to be the least of the 3 branches and it's role is to ensure that the other branches do not expand beyond the limited govt that the constitution provides for."

    You'll pardon me, but I don't see anything inconsistent with what I have said and your extensive quote. If anything, it supports it. Example:

    "It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature...If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."

    So, the judges are to value the intention of the people (the citzenry) over their agents ("The Founding Fathers"). This blows another hole into originalist thinking, splitting the original intentionalist camp into those that quote the Federalist papers and those trying to guess at the intentionality of the masses and their state representatives ratifying the constitution.

    Both of which, I would argue are (1) exercises in futility and (2) not how judges actually decide the law.

    Posted by srjenkins at 07/17/2009 @ 3:42pm

86. Posted by antisocialist at 07/17/2009 @ 2:14pm

    Same goes for this quote. This basically is saying that since judges don't control the finances or the guns, the citizenry has the least to fear from them - in terms of usurping power. Their interpretative powers are limited to the cases that are brought before them, stare decisis, common law, etc. So, all this talk about judges "making law" is only so much hot air. I couldn't agree more.

    See, the problem - for you, Thrawn, and others of the originalist camp - is that you confuse your ideas for reality. You can talk about the music of the spheres and how it just seems so right to put the Constitution as the center of the world, but this doesn't mean that you are right. And even if the Constitution is at the center, it doesn't mean your ideas about how it filters through the atmosphere of the judicial process to shine on any particular case are correct.

    Stop making theoretical, silly arguments like, "If the Constitution that was ratified meant something, then..." Instead, take a moment and look at the empirical evidence.

    Show me where judicial decisions consistently reflect "original intent". How many previous decisions has the Supreme Court overturned? How consistent are the legal justifications? If there are changing their mind a lot (and they are) and if they are not consistent in their application of the law (and they aren't), then this idea that some defined original intent is guiding their actions is dubious.

    If it isn't empirically true, then we are dealing with a "should" argument. You'd like the world to be this way. The problem is you cannot agree even among yourselves what this original intent is. So, we then see it for what it is, a bogus justification for your bias.

    Posted by srjenkins at 07/17/2009 @ 3:58pm

87. Posted by antisocialist at 07/17/2009 @ 2:12pm

    What is radical about my position, is that I suggest getting rid of the bogus justifications of bias - and accept them because they are real. Justice Scalia isn't making any less biased pronouncements than Justice X who believes there is systematic bias against blacks in our legal system that he is trying to correct for in his decisions. I'd argue that Justice X is more just, and further doesn't live in a fantasy land of judicial interpretation.

    And to stave off Thrawn's invariable justices aren't morally superior argument, let me address that too. A judge is in a position to make a decision the same way that a military commander is in the position to make strategy for the army. Does this mean that the judge or the military commander are more capable, moral or have any other good quality compared to a juror or enlisted soldier? No, obviously not.

    You would hope there was a selection process would provide for individuals capable of doing the job, but it is quite possible that others not in the position would be better. All of which is besides the point. I only bring it up because he is guaranteed to make this argument again - despite my repeated efforts to show him that it is a bad, pointless argument to make.

    Posted by srjenkins at 07/17/2009 @ 4:07pm

88. Show me where judicial decisions consistently reflect "original intent". How many previous decisions has the Supreme Court overturned? How consistent are the legal justifications? If there are changing their mind a lot (and they are) and if they are not consistent in their application of the law (and they aren't), then this idea that some defined original intent is guiding their actions is dubious.

    If it isn't empirically true, then we are dealing with a "should" argument. You'd like the world to be this way. The problem is you cannot agree even among yourselves what this original intent is. So, we then see it for what it is, a bogus justification for your bias.

    Posted by srjenkins at 07/17/2009 @ 3:58pm

    You have chosen to ignore the central theme from Federalist 78 and it's application to original intent.

    Madison said that the Federal judiciary would be a vanguard to ensure that the Executive and Legislative branches did not violate the people's constitution of LIMITED GOVT.

    This is a central tenet in originalist thinking. It maintains that we CAN know the intent of the originators because 1)they left us a lengthy documented record, 2)the doctrine of limited Fed govt is well established, and 3)contrary to you and others, the constitution is fairly straightforward in establishing itself as an enumerated powers document.

    I think where you have an argument is in Original intent vs Originalist interpretation. I have been guilty occasionally myself of conflating the two when responding to arguments.

    Originalism is the predominant conservative constitutional theory as led by Scalia and conservatives like Mark Levin

    continued

    Posted by antisocialist at 07/17/2009 @ 4:51pm

89. To SRJ continued

    Justice Oliver Wendell Holmes argued that interpreting what was meant by someone who wrote a law was not trying to "get into his mind" because the issue was "not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used." This is the essential precept of modern Originalism.

    The most robust and widely cited form of originalism, "original meaning" emphasizes how the text would have been understood by a reasonable person in the historical period during which the constitution was proposed, ratified, and first implemented. For example, economist Thomas Sowell notes that phrases like "due process" and "freedom of the press" had a long established meaning in British law, even before they were put into the Constitution of the United States." Applying this form involves studying dictionaries and other writings of the time (for example, Blackstone's Commentaries on the Laws of England; to establish out what particular terms meant.).>

    continued

    Posted by antisocialist at 07/17/2009 @ 4:53pm

90. Posted by antisocialist at 07/17/2009 @ 2:03pm

    I think you are misinterpreting her position. You are assuming from one post that she is fringe. Again you are making assumptions about someone you don't know.

    Posted by Cccomfo1 at 07/17/2009 @ 4:54pm

91. SRJ continued

    <Justice Scalia, one of the most forceful modern advocates for originalism, defines himself as belonging to the latter category: "The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words."

    Originalism assumes that Marbury is correct: the Constitution is the "operating charter" granted to government by the people, as per the preamble to the United States Constitution, and its written nature introduces a certain discipline into its interpretation. Originalism further assumes that the need for such a written charter was derived from the perception, on the part of the Framers, of the abuses of power under the (unwritten) British Constitution, under which the Constitution was essentially whatever Parliament decided it should be.>

    cont

    Posted by antisocialist at 07/17/2009 @ 4:55pm

92. <In writing out a Constitution which explicitly granted the government certain authorities, and withheld from it others, and in which power was balanced between multiple agencies (the Presidency, two chambers of Congress and the Supreme Court at the national level, and state governments with similar branches), the intention of the Framers was to restrain government, originalists argue, and the value of such a document is nullified if that document's meaning is not fixed. "If the constitution can mean anything, then the constitution means nothing".>

    http://en.wikipedia.org/wiki/Originalism

    Interview with Mark Levin on Originalism

    <Now, you talk in this book about an originalist interpretation of the Constitution, Mark. You say, "The Conservative is an originalist, for he believes that much like a contract, the Constitution sets forth certain terms and conditions for governing that hold the same meaning today as they did yesterday and should tomorrow. It connects one generation to the next by restraining the present generation from societal experimentation and government excess. There really is no other standard by which the Constitution can be interpreted without abandoning its underlying principles altogether.">

    http://tinyurl.com/dz52wp

    Posted by antisocialist at 07/17/2009 @ 4:56pm

93. I think you are misinterpreting her position. You are assuming from one post that she is fringe. Again you are making assumptions about someone you don't know.

    Posted by Cccomfo1 at 07/17/2009 @ 4:54pm

    Well, she had the opportunity to correct my understanding.

    Posted by antisocialist at 07/17/2009 @ 4:57pm

94. Posted by antisocialist at 07/17/2009 @ 4:51pm

    I've chosen to work with the exact quotes you gave me. It's not my fault your argument came out worse for the wear. I could have chosen far more devastating quotes like this one:

    "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge."

    You'll notice that Hamilton does not assume that the Constitution or legislative law is the difficult part of being a judge. It is mastering the large body of common law. So, these ideas that the law means what an average person might have construed them to mean is directly contradicted by the very source you cite.

    The central tenet is that the judiciary polices the executive and legislative branches. I don't see much support for your ideas about originalism in this document. In fact, quite the contrary. Hamilton, wisely, acknowledges that understanding and applying the law is difficult. Originalism makes the mistake of thinking it is easy. It isn't.

    Posted by srjenkins at 07/17/2009 @ 5:20pm

95. Posted by antisocialist at 07/17/2009 @ 4:53pm

    I think the previous post gets at why the law is not what the average person thinks it is in my previous post. If that is a central component of originalism, then you have yet another problem in your conception of it.

    I think the Scalia makes an interesting point. Perhaps you could argue for originalism, in the man on the street sense, in the Constitution because it represents a special case. I don't think this is accurate though because in order to understand and apply the Constitution to a particular case, you have to understand the whole body of common law that has arisen out of it. You don't get to look at each cash fresh, and only consider the Constitution. As a result, you cannot say this is how the law is applied. It isn't. I don't think you can plausibly maintain it should be done this way because then you would start violating stare decisis and creating all kinds of variations depending on individual interpretations.

    You also get wrapped up in this Constitution being the supreme law of the land, operating charter and the like. People are not challenging this point.

    The challenge comes from the premise that the "written nature introduces a certain discipline into its interpretation". As I stated above, show me this is the case. If you cannot even agree among yourselves on basics on whether it is merely the text or intent or whose intent, then how are you going to talk about the discipline it provides for applying the 1st Amendment?

    Posted by srjenkins at 07/17/2009 @ 5:30pm

96. Posted by antisocialist at 07/17/2009 @ 4:56pm

    I agree the framers were trying to avoid some of the problems of the British system. I also think this comment is a good one:

    "...intention of the Framers was to restrain government, originalists argue, and the value of such a document is nullified if that document's meaning is not fixed. 'If the constitution can mean anything, then the constitution means nothing.'"

    The problem is that the constitution has to be understood within the body of common law. So, it does mean something. But that something is not fixed, it changes as common law changes.

    The problem for originalists is that they cannot arrive at the fixed meaning. This idea is not a feature of the Federalist papers. It's not a feature of our common law. It's a new idea with origins in the 1980s that was one result from efforts to codify common law in the early part of the 20th century.

    So, it is a radical reinterpretation of law. I, personally, don't have any problems with radical reinterpretations - so long as they are logical and more importantly more useful. The problem with originalist thinking is it pretends at certainty when it doesn't have any. It like doing math when all your numbers are probabilities. It doesn't work based on its own logic. It doesn't describe the real world.

    In other words, I just don't see the point of it. Originalism is the sci-fi of legal interpretation. Wow! Wouldn't the world be fantastic if it worked that way? I'm not so sure it would be, but we will never know - because the world is different than what originalists would have it be.

    So, it's a utopian vision of law. I suppose there is some value to that. But, it is positively destructive when you conflate this utopia with reality.

    Posted by srjenkins at 07/17/2009 @ 5:40pm

97. Well, she had the opportunity to correct my understanding.

    Posted by antisocialist at 07/17/2009 @ 4:57pm

    Maybe she doesn't feel the need to justify herself to someone she doesn't know nor cares about?

    Posted by Cccomfo1 at 07/17/2009 @ 5:47pm

98. The problem for originalists is that they cannot arrive at the fixed meaning. This idea is not a feature of the Federalist papers. It's not a feature of our common law. It's a new idea with origins in the 1980s that was one result from efforts to codify common law in the early part of the 20th century.

    So, it is a radical reinterpretation of law. I, personally, don't have any problems with radical reinterpretations - so long as they are logical and more importantly more useful. The problem with originalist thinking is it pretends at certainty when it doesn't have any. It like doing math when all your numbers are probabilities. It doesn't work based on its own logic. It doesn't describe the real world.

    In other words, I just don't see the point of it. Originalism is the sci-fi of legal interpretation. Wow! Wouldn't the world be fantastic if it worked that way? I'm not so sure it would be, but we will never know - because the world is different than what originalists would have it be.

    So, it's a utopian vision of law. I suppose there is some value to that. But, it is positively destructive when you conflate this utopia with reality.

    Posted by srjenkins at 07/17/2009 @ 5:40pm

    You can continue making a summation that is not supported by the facts, but it just doesn't make it true. Originalism has been a part of the Court going back as Thrawn suggested to Marbury v Madison.

    In the following paper by Scalia, he presents the argument of Originalism being the interpretive rule of former Chief Justice, former President of the US, William Howard Taft.

    http://tinyurl.com/mxk7ss

    Posted by antisocialist at 07/17/2009 @ 5:57pm

99. SRJ,

    And consider this argument from Scalia on what alternative can there be to Originalist?

    <Apart from the frailty of its theoretical underpinning, nonoriginalism confronts a practical difficulty reminiscent of the truism of elective politics that "You can't beat somebody with nobody." It is not enough to demonstrate that the other fellow's candidate (originalism) is no good; one must also agree upon another candidate to replace him. Just as it is not very meaningful for a voter to vote "non-Reagan," it is not very helpful to tell a judge to be a "non-originalist." If the law is to make any attempt at consistency and predictability, surely there must be general agreement not only that judges reject one exegetical approach (originalism), but that they adopt another. And it is hard to discern any emerging consensus among the nonoriginalists as to what this might be. Are the "fundamental values" that replace original meaning to be derived from the philosophy of Plato, or of Locke, or Mills, or Rawls, or perhaps from the latest Gallup poll? >

    http://tinyurl.com/mxk7ss

    Posted by antisocialist at 07/17/2009 @ 5:58pm

100. Well, she had the opportunity to correct my understanding.

     Posted by antisocialist at 07/17/2009 @ 4:57pm

     Maybe she doesn't feel the need to justify herself to someone she doesn't know nor cares about?

     Posted by Cccomfo1 at 07/17/2009 @ 5:47pm

     Then why are you defending her when you have no better idea of her meaning?

     Posted by antisocialist at 07/17/2009 @ 6:00pm

101. Posted by antisocialist at 07/17/2009 @ 4:53pm

     Just another thought, it is interesting you quote Oliver Wendell Holmes, "the Great Dissenter" who was probably a great justice because he put so much of himself into his opinions. If we were on today's court, he would be called an "activist judge".

     It is also interesting that you don't see any contradictions in these two statements:

     "Justice Oliver Wendell Holmes argued that interpreting what was meant by someone who wrote a law was not trying to "get into his mind" because the issue was "not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used."

     "For example, economist Thomas Sowell notes that phrases like "due process" and "freedom of the press" had a long established meaning in British law, even before they were put into the Constitution of the United States." Applying this form involves studying dictionaries and other writings of the time (for example, Blackstone's Commentaries on the Laws of England; to establish out what particular terms meant.)"

     I don't know about you, but this normal speaker of English does not look to Blackstone's, Black's Law Dictionary or similar resources when I'm using the language. And when I do think of "due process", I do think to look it up there - which suggests that Oliver might have been wrong on this one.

     Posted by srjenkins at 07/17/2009 @ 6:02pm

102. If a constitution as interpreted can truly be changed at the decree of a judge, then "[t]he Constitution… is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please,"

     Thomas Jefferson

     Posted by antisocialist at 07/17/2009 @ 6:07pm

103. Posted by antisocialist at 07/17/2009 @ 5:58pm

     I'm looking at this article. I just can't bring myself to read it. Skimming for the words originalism, Scalia manages to create a false dichotomy of originalism and nonoriginalism. Is it a profound lack of imagination? He couldn't bring himself to write: "Living Constititution", "Moral Constitution", contextualism but rather lump them all together as "nonoriginalism"?

     On skimming he acknowledges that originalism is not the way law has been historically interpreted. He acknowledges that it is impossible to come to a consensus on what the original text means. He goes on, then glosses over it all and say he thinks originalism is better.

     Really? You don't say Justice Scalia? I'm shocked. You can't be bothered to talk about the relative merits of other approaches and decide to use the labels originalist vs. nonoriginalist and you come down on the originalist side?

     Pretty weak. If you want to read the whole thing and point out something important I missed, fine. But, it strikes me as, "move along, nothing to see here," at the moment.

     Posted by srjenkins at 07/17/2009 @ 6:15pm

104. Posted by antisocialist at 07/17/2009 @ 6:07pm

     It is still wax under originalism. Jefferson also rejected judicial review and Marbury. Are you sure you want to go this route?

     Posted by srjenkins at 07/17/2009 @ 6:23pm

105. BTW SRJ,

     Hugo Black was another Originalist and he was a Democrat appointed by FDR who served from 1937-1971

     And Liberal Legal Scholar Akhil Amar argues for Originalism as the only legitimate method for both conservatives and liberals.

     < Rethinking Originalism

     Yes, it's true that on today's court the two leading originalists are both conservative, but perhaps the court's most influential originalist in history was the great Hugo Black--a liberal lion and indeed the driving force behind the Warren Court. (For more on Black's role in leading the Warren Court to apply the Bill of Rights against states, protect the rights of criminal defendants--especially the indigent--champion the rights of political dissenters, and enforce racial and voting equality principles, click here.) It's also worth remembering that the most towering originalist scholar of the 1970s was also a professed liberal, John Hart Ely.

     In short, there are many reasons to question the idea that modern liberals should abandon constitutional history rather than claim it as their own. This short posting is not the place to present all the historical evidence that some modern anti-originalists are overlooking--I've tried to do that elsewhere (in an article in the Harvard Law Review published in 2000, and, more comprehensively, in my new book being published this month). But I hope I've said enough here to convince thoughtful anti-originalists to take a second look at the Constitution's first principles.>

     http://www.slate.com/id/2126680/

     Posted by antisocialist at 07/17/2009 @ 6:25pm

106. Then why are you defending her when you have no better idea of her meaning?

     Posted by antisocialist at 07/17/2009 @ 6:00pm

     I'm not defending who she is. I am defending against someone making broad generalizations about someone they don't know.

     Posted by Cccomfo1 at 07/17/2009 @ 6:32pm

107. It is still wax under originalism. Jefferson also rejected judicial review and Marbury. Are you sure you want to go this route?

     Posted by srjenkins at 07/17/2009 @ 6:23pm

     Just because I quote someone doesn't mean I agree with everything they ever said or wrote, nor I'm sure does that apply to you.

     But I certainly find the statement true about constitutional interpretation.

     BTW, this addon comment about Akhil Amar who is a liberal registered Democrat.

     <Just as Amar has been praised by the right, his scholarship has received effusive kudos from the left. Harvard law professor Laurence Tribe hails America's Constitution by saying, "What David McCullough is to John Adams, what Walter Isaacson is to Benjamin Franklin, Akhil Amar is to the Constitution." Supreme Court justices of all stripes have cited Amar's writings roughly 20 times.>

     http://tinyurl.com/mfcz33

     Posted by antisocialist at 07/17/2009 @ 6:33pm

108. Posted by antisocialist at 07/17/2009 @ 6:25pm

     You have a strong reliance on Wikipedia. Akhil Amar is at least better than Scalia because he talks about modes of constitutional interpretation and tries to be a little more generous with his dichotomy: document vs. doctrine.

     But, in the final analysis, he's making the same argument as Scalia. He's just focusing more on the Amendments as a source of judicial change that "liberals" and "progressives" might like. I think he provides an excellent example of how originalism is basically a justification for bias. The fact that this bias can be applied to liberal causes as well as conservative ones is not something I find particularly compelling. It's still flawed, and it is still trying to legitimize judicial decisions as being objective when they are empirically subjective.

     Another point, he, like other originalists, are desperately trying to find pre-1980s antecedents. For example, I'll go to Wikipedia which states that John Hart Ely was against originalism.

     The best part is if you read Ely's book, "Democracy and Distrust," he calls originalism by another name: interpretivism. He defines it as, "judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution."

     But while he calls himself an interpretivist, he views the Constitution as a document about process and structure and he favored an active court promoting democratic processes. Here we have yet another originalist with a novel view of the Constitution that allows him to interpret it according to his agenda - and I like his agenda. Still, it's problematic.

     http://islandia.law.yale.edu/amar/lawreview/2000Supreme.pdf

     Posted by srjenkins at 07/17/2009 @ 7:25pm

109. Posted by srjenkins at 07/17/2009 @ 7:25pm

     I'm still waiting for your to proffer an logical alternative as was the challenge from Scalia and from Amar.

     I don't have strong reliance on Wiki. It was just convenient in this case for some of the material.

     But I listed info from Amar from Slate which is a liberal magazine.

     Posted by antisocialist at 07/17/2009 @ 7:29pm

110. Posted by antisocialist at 07/17/2009 @ 7:29pm

     The logical alternative is to acknowledge that the law is what the Supreme Court says it is - and to find people with extensive legal experience and good judgment to work on the people's behalf in the administration of just law.

     My solution: Let's put nine Solomons on the bench and enjoy their discernment in administering justice without sugar-coating the fact that its ultimately an undemocratic process and the only legitimate reason for it is that it is necessary.

     Posted by srjenkins at 07/17/2009 @ 7:56pm

111. <i>Posted by srjenkins at 07/17/2009 @ 7:56pm </i>

     Very telling choice of words. Solomon...the philosopher-king? Judges might have a relatively small kingdom, but really it's kings that you're defending. That may be all well and good...but it's not our system and it's fundamentally incompatible with democracy.

     <i>Posted by srjenkins at 07/17/2009 @ 5:40pm </i>

     This almost sounds like a concession that originalism would be great if it could work. Unfortunately for you...it can. The fact that it doesn't spit out results like a computer doesn't make it a flawed system. Anyone who's studied philosophy should know that the lack of perfect agreement doesn't negate the existence of a right answer or prove that the search for a right answer is a cloak for bias. That's nothing more than a bald assertion on your part.

     Posted by Thrawn at 07/17/2009 @ 8:24pm

112. Posted by Thrawn at 07/17/2009 @ 8:24pm

     Chosen for my audience. What is important is Solomon's wisdom - not the fact that he was a king, a philosopher or that he happens to appear in the Bible.

     It's reality I'm defending, from a vision of utopia masquerading as reality. We don't live in a democracy. We live in a republic, and in a republic, representatives are chosen to perform certain functions. Judges are no different, and unlike kings, they can be impeached.

     Show me an example of originalism "working". The computer analogy was used because YOU are the one claiming that originalism acts as some kind of constraint that leads to predicable results with some mild variation. The problem is that is not what one sees in the world. There are many instances where justices reverse themselves, fellow originalists disagree with themselves, and originalists of conservative and liberal stripes using it to justify their legal interpretations - all of which are different from one another.

     So, in effect, originalism doesn't do what you say it does. It doesn't work. And despite your claims to the contrary, your wishful thinking doesn't change these basic facts.

     Anyone who has studied philosophy will know of sophist argument when they see one. This is a sophist argument, and the person you are deceiving is yourself.

     The give away is this "search for a right answer" comment. Your whole argument is predicated on the assumption that you already know the answer. If you are searching for the right answer, then originalism has not foundation, and your whole argument rests on this foundation. Is this inherent contradiction truly alluding you or are you just running from what logic dictates here - which is to give up this bad argument?

     Posted by srjenkins at 07/17/2009 @ 8:55pm

113. The logical alternative is to acknowledge that the law is what the Supreme Court says it is - and to find people with extensive legal experience and good judgment to work on the people's behalf in the administration of just law.

     My solution: Let's put nine Solomons on the bench and enjoy their discernment in administering justice without sugar-coating the fact that its ultimately an undemocratic process and the only legitimate reason for it is that it is necessary.

     Posted by srjenkins at 07/17/2009 @ 7:56pm

     Actually your answer is the most frightening of all. You want 9 people to decide that the law is whatever they feel it is. You voiced the concern of the Founders and stipulated that the other two branches are subordinate to the Judiciary.

     Posted by antisocialist at 07/17/2009 @ 9:12pm

114. Can't wait to read your column about how and why the Democrats blocked Miguel Estrada's ascension to the U.S. Court of Appeals. Probably will be a VERY long wait, eh? Posted by JackDavis1 at 07/17/2009 @ 2:08pm |

     Let's quote the "internal memo" to Durbin that Rove is so fond of, shall we?

     "We must filibuster Miguel Estrada's nomination. He is clearly an intelligent lawyer, but being a judge requires more. He must demonstrate his commitment to core consitutional values, and he has to prove that he has the ability to be fair and impartial. BY DESIGN we know very little about Mr. Estrada, but the burden is on him to prove to us that he is fit for a lifetime appointment. He simply hasn't done that."

     And from the ever-popular Wikipedia:

     "Democratic Senators opposed the nomination, noting Estrada's lack of ANY PRIOR JUDICIAL EXPERIENCE at the local, state, or federal level."

     Did we really need the opportunity to say, "Heckuva ideological decision, Miguel!"?

     Posted by snowball777 at 07/17/2009 @ 10:13pm

115. Posted by antisocialist at 07/17/2009 @ 9:12pm

     You may find it frightening, but it's the world we live in. If it makes you feel better to believe in the originalist fairy tale while Scalia decides what the law is, knock yourself out. For my part, I'd rather dispense with the illusion.

     Posted by srjenkins at 07/17/2009 @ 10:17pm

116. Posted by antisocialist at 07/17/2009 @ 9:12pm

     Oh, and its not that I want it. In my fairy tale, we would just do without the state: the Constitution, the Executive, Congress, the Supreme Court -- all of it, all together. But, I'm not going to sit here and pretend that my anarchist ideals are the way the world really works.

     Posted by srjenkins at 07/17/2009 @ 10:20pm

117. OMG SONIA GOT NOMINATED, REALLY, I HAD NO IDEA SHE WOULD MAKE IT: LMAO. LIKE THEY WEREN"T GOING TO NOMINATE PRESIDENT OBAMAS CHOICE.. She played it smart ,she didn't say much, BUT NOW WHAT HAPPENS NOW THAT SHE IS IN AND SHE STARTS YAKKING AWAY? CAN THEY WITHDRAW HER NOMINATION? I MEAN IF SHE ANSWERED ALL THE QUESTION THEY WAY SHE KNEW THEY WANTED TO HEAR, AND SHE REVERSES HERSELF, CAN THEY THROW HER OUT????

     Posted by imcookie at 07/18/2009 @ 12:39am

118. Reagan

     Posted by Eaglebeagle at 07/17/2009 @ 12:29pm

     frostwin's law: the deeper a righty-tighty falls in the hole, the greater the probability s/he will summon st. ronnie.

     Posted by frosty zoom at 07/18/2009 @ 12:40am

119. <i>Posted by srjenkins at 07/17/2009 @ 8:55pm </i>

     Your relationship to utopia seems very odd here. The burden you place on originalism seems very strange: it must either work perfectly with no disagreement...or be rejected entirely. Why is that? Your position continues to rest on the assertion that so long as originalists disagree with one another, originalism is just a mask for ideology, when there's absolutely no basis for that claim.

     When I say originalism acts as a constraint, I don't mean that it leads to a computerized input-->output justice system. I mean that it gives us at least some anchor by which we can distinguish good decisions from bad ones. The closest thing I see you providing is either one's own intution about justice (about which there is legitimate and ongoing dissension in society) or the internal coherence of one's argument (which tells us little about correct v. incorrect results).

     Your accusation of sophistry also appears to have little merit, and the fact that you don't really defend that accusation is telling.

     Originalism is a philosophy that captures one of your most important benefits (the role of judgment; ascertaining (not dictating) what the law is, and applying it to the facts requires effort) AND retains legitimacy. The only response I see coming from you is simply that it doesn't work. Is there division in hard cases? Sure there is. Are there some easy cases? Yup. Any casual perusing of Supreme Court jurisprudence will show that originalism can work and has worked. Justices have employed it and sometimes come to conclusions that directly contradicted their own political philosophy. To me, that sounds like success.

     If the only way to have judicial review is 9 Solomons, judicial review should not exist.

     Posted by Thrawn at 07/18/2009 @ 12:41am

120. republicans are a disease!!!

     Posted by Tiger2Lover at 07/18/2009 @ 06:18am

121. frostwin's law: the deeper a righty-tighty falls in the hole, the greater the probability s/he will summon st. ronnie. Posted by frosty zoom at 07/18/2009 @ 12:40am |

     Help me Obi-Ron, you're our only `hope'.

     Posted by snowball777 at 07/18/2009 @ 09:02am

122. Posted by Thrawn at 07/18/2009 @ 12:41am

     "The burden you place on originalism seems very strange: it must either work perfectly with no disagreement...or be rejected entirely. Why is that?"

     Actually, the burden is that it must constrain judges to some standard with some minor variation, because ultimately that is the justification for it. The empirical evidence suggest that the interpretations vary wildly and there really is no standard. So, in effect, originalism does not do what it says it does, and if this is true, why bother with it?

     To use an analogy, if I were doing a statistical analysis and my hypothesis is that judges that believed in originalism made consistent opinions because they were using the Constitution as their guide. After I checked and quantified it all, if I find that I can't get to one standard deviation, I would conclude that the consistentcy is not statistically significant and reject the hypothesis.

     That's what I'm doing. I look for consistency, don't see any evidence for the consistency that is supposed to be a feature of originalism, and I have rejected the hypothesis.

     The question I have is that why aren't you checking your claims against reality, but instead, stay stuck to poorly constructed theoretical arguments that try to exclude other possibilities?

     So, the problem comes from the claims you are making about what originalism accomplishes

     Posted by srjenkins at 07/18/2009 @ 3:02pm

123. thrawn--there being a "right" answer is subjective. originalism is nothing more than just another judicial philosophy; and like all judicial philosophies, a judge can easily use it to cover his biases and prejudices. your arguments are not compelling.

     Posted by urmygyro at 07/18/2009 @ 4:45pm

124. <i>Posted by srjenkins at 07/18/2009 @ 3:02pm</i>

     Because a theory that's better and applied imperfectly is better than a really, really bad one ("philosopher judges"). In order for your theory to be better, it has to be the case that originalism can't be anything but a cloak for bias.

     Also, to urmygyro, "it's just a philosophy, therefore nothing more than bias" is a bad argument, and certainly not a response to the actual arguments I've made. Unless you believe that truth doesn't exist, your argument doesn't mean anything.

     Posted by Thrawn at 07/18/2009 @ 11:07pm

125. Posted by Thrawn at 07/18/2009 @ 11:07pm

     It doesn't do what it says it does. Period. It doesn't provide the consistency it claims. It's not a question of imperfection. It is a question of whether it works at all, and it doesn't.

     You may not like the idea of judges make up the law. You may think your theory sounds better, but if you are going to claim it is better, you better have empirical evidence - and you don't. Shit, you cannot even get people to agree on the basics - intent, whose intent, text or cultural context and show any consistent application. And your theory absolutely requires it to justify itself.

     In other words, move along. Nothing to see here.

     Posted by srjenkins at 07/19/2009 @ 12:05am

126. <i>Posted by srjenkins at 07/19/2009 @ 12:05am </i>

     First, I have a question. Suppose that originalism doesn't work and can't work. Is there any justification for judicial review? I certainly can't see one, not in a society that calls itself meaningfully democratic (and yes, I do mean a democratic republic, but it has to justify itself by the consent of the governed).

     Second, the only real attacks you've been able to make are on implementation. We agree that the Constitution meant something upon enactment (and I pointed out how a written Constitution meant that they wanted certain guarantees inscribed, and they're not guarantees without being anchored in relatively fixed principles). The biggest issue I've seen you raise is that it doesn't produce univocal results. In a lot of areas, it provides consistency, and it makes some areas easy. For instance, though it could be a subject of debate on non-originalist grounds, the death penalty is clearly not prima facie unconstitutional. The Constitution itself clearly provides for it (see Due Process Clause, for which a substantive component seems to require poor reading comprehension). Does the current-day implementation violate the Constitution? Well, that's certainly a live question.

     Originalism doesn't remove judgment, but here's the key: much more of the judgment occurs on the level of application, and that's where a lot of disagreement comes in. You have no standard whatsoever for determining what principles a judge should use when evaluating a case. Precisely whose notion of justice ought they employ? Are decisions right so long as you agree with them? Do we really want just another group of politicians with virtually no accountability (no one ever gets impeached unless they're nuts)?

     Posted by Thrawn at 07/19/2009 @ 08:06am

127. Posted by Thrawn at 07/19/2009 @ 08:06am

     "Is there any justification for judicial review?"

     Of course, there are many ideas of constitutional interpretation: doctrinalist, contextualist, developmentalist, etc. You could argue for it on theoretical ground in terms of checks and balances. You could argue for it for other reasons of efficiacy. You could argue that there was an original meaning that has been refined and better defined over time or even Living Constitutional grounds. There's plenty of approaches. Again, the problem is your framing.

     "...not in a society that calls itself meaningfully democratic..."

     Perhaps the problem here is your assumption that we live in a meaningfully democratic society?

     "Second, the only real attacks you've been able to make are on implementation."

     Don't confuse the fact I choose to focus my attacks on the primary problem, as this is the only problem in the originalist position. I could formulate a theoretical argument, but I don't want to reenforce your bias in that direction. You already are so focused on it that you fail, time and time again, to address the fact that your theory is not reflected in reality.

     "For instance, though it could be a subject of debate on non-originalist grounds, the death penalty is clearly not prima facie unconstitutional."

     The Founding Fathers were fine with slavery too. But, the world has moved on. Capital punishment, like slavery, has been repudiated by the world, and it leaves one to ask, "Why should a free people be constrained by the limits of their ancestors?" This illustrates a central problem of the originalist approach. It makes people less free. It is undemocratic in the extreme (not one alive voted for it) but wears a guise of being more democratic. That's bunk.

     Posted by srjenkins at 07/19/2009 @ 10:54am

128. Posted by srjenkins at 07/19/2009 @ 10:54am |

     Are you claiming that we couldn't pass an anti-capital punishment amendment or that we "shouldn't have to", in order to achieve that end?

     Posted by snowball777 at 07/19/2009 @ 11:10am

129. Posted by snowball777 at 07/19/2009 @ 11:10am

     I'm not arguing either. While the amendment process is onerous and it is problematic under an originalist interpretation that would essentially require many amendments to cover the flaws inherent in the theory, I think it will be completely possible to pass an anti-capitalist punishment amendment, perhaps this is even inevitable.

     I also think it is obvious that legislatures or even executives (federal or state) can pass laws or commute sentences of people with convictions of capital punishment to life sentences. New Jersey, Illinois and New Mexico are good examples. Judicial invalidation based on the state constitution is another good example provided by Maine and New York. These facts makes much of this discussion moot, because SCOTUS only then gets cases by states actively engaged in capital punishment, which doesn't reveal any problems in the originalist theory because they assume capital punishment.

     But, let's flip the script. Let's imagine Timothy McVeigh was sentenced to life imprisonment. He appeals to the Supreme Court under an originalist interpretation that points out that life imprisonment did not happen during the time of the Founding Fathers, and he wants to be put to death.

     If you go with this line of thinking, it means (1) that the federal government overrules state constitution and statutes based on an originalist interpretation, (2) it sets a legal precedent that raises the question of whether lifelong imprisonment is cruel and unusual.

     Or, you could go the other direction. McVeigh was convicted of federal crimes. If Oklahoma did not have that statute on the books and the people were against it, would the Federal government be able to execute him based on a Founding Fathers rationale?

     Posted by srjenkins at 07/19/2009 @ 1:01pm

130. I'm only scratching the surface here at how originalism creates so many problems when you start getting into real legal cases and details and get out of silly arguments about whether the constitution meant something when it was ratified.

     And the bottom line is that originalists cannot address these problems. It doesn't work. It is silly to talk about what the Founders thought about lifelong imprisonment or abortion because it didn't exist for them. So, you then have to start talking about principles and application of principles and when you go there, you can basically read whatever you want into it because the Constitution, which is, at base, only a framework. It is vague on the details on purpose. "Freedom of speech" is a nice concept, but the devil is in the details, and the details ain't in the Constitution. Neither are they in our imaginations about what we think the founders might have thought about how "Freedom of speech" might apply to adult films.

     It's all crap. This whole originalist line of thinking is just utter bullshit. And while Thrawn is generally one of the more insightful posters in this forum, it is clear when he asks questions about, "Is there any justification for judicial review?" he isn't using his imagination.

     In this case, he argues like an ideologue, making statements like, "It is better," "It's imperfectly applied," etc. But he cannot address the central challenge. Show me. Where is the evidence? He has no evidence. He's going from the gut.

     It doesn't matter if you point out all the incongruencies in first principles and if you cannot get these straight, you cannot get to a uniform decision making.

     Originalism is an attempt to recast American jurisprudence into the model of the Napoleonic Code, and it is an inept attempt.

     Posted by srjenkins at 07/19/2009 @ 1:13pm

131. Originalism is an attempt to recast American jurisprudence into the model of the Napoleonic Code, and it is an inept attempt. Posted by srjenkins at 07/19/2009 @ 1:13pm |

     In so much as both make an attempt to maintain a separation of powers between the legislature and judiciary, I suppose so. Do you see no difference between determining what the law 'says' and whether or not it 'applies' to a specific case (which was still allowed under the Napoleonic code)?

     I'm starting to come around to your thesis; that originalism makes a claim on determinism that justifies its existence, but that the evidence of same is sadly lacking (Scalia, I'm looking at you).

     But, in essence, aren't you saying that judicial systems, of any flavor, are as doomed to failure as any formal system, as per Gödel's Incompleteness Theorem? i.e. they will either be consistent and fail to capture 'truths' evident in 'real life' or inconsistent (more likely) and therefore not what we asked them to be?

     Lastly, if a director with a sense of humor paints the actresses red,white and blue, and then makes the actors wear Reagan and Bush halloween masks, does that make the porno political speech? If they film it live, at the RNC?

     Posted by snowball777 at 07/19/2009 @ 4:19pm

132. <i>Posted by srjenkins at 07/19/2009 @ 10:54am </i>

     Let's deal with the first issue first: does meaningful, useful originalist interpretation exist? Sure; I'll give you 2 easy examples.

     1) Already given: may the death penalty be struck down as per se unconstitutional? Your theory of "do justice" doesn't clearly answer that; whose philosophy do we apply? Mine does, and the answer is clearly no. Your hypothetical about McVeigh is kind of bizarre for reasons I'll get to later, but suffice to say that life imprisonment existed at the time AND there was no such thing as the government being FORCED to adopt punishment X.

     2) Can a pre-Civil War Missouri Compromise be struck down? Depending on one's own philosophy of property, your standard means...it depends. My standard means...clearly not. Nothing in the Constitution's original understanding forebade any state from abolishing slavery or prohibiting slaves from entering.

     So...originalism can exist.

     As for justifications for the alternative...yours aren't adequate. It can't just be "this works more easily." It also has to be compatible with a system in which authority is derived by consent of the governed. A system of philosopher kings, no matter how limit the domain over which they are effectively unaccountable, is fundamentally undemocratic. However imperfect you think our system is...that's still not justified.

     Also..."why should free people be bound by texts before their time?" is a curious standard. If you buy this, there's no reason a judge can't simply say "First Amendment may have been meant to protect political speech...but we don't need that so much." Bad? Yes. Theoretically problematic? Not by your standard.

     Law requires reasoning. That fact doesn't invalidate originalism; just makes it hard.

     Posted by Thrawn at 07/19/2009 @ 6:09pm

133. Sorry for blippy response; will add more later.

     Posted by Thrawn at 07/19/2009 @ 6:11pm

134. Posted by snowball777 at 07/19/2009 @ 4:19pm

     "Do you see no difference between determining what the law 'says' and whether or not it 'applies' to a specific case (which was still allowed under the Napoleonic code)?"

     I'm not hung up on what a law says. I think the common law tradition is a way to get beyond being faithful to the letter but not the spirit of the law - and ultimately the spirit is about justice. So, there is a difference, but the "says" of the law has traditionally been a large number of cases providing a very nuanced meaning that is part and parcel of its application.

     "But, in essence, aren't you saying that judicial systems, of any flavor, are as doomed to failure..."

     Not really. You could be a legal positivist and say that law is not necessarily just, rules are made, and systemically, it is best to apply them based on some understanding of the law - such as textualism.

     Originalism, to my mind, is in this camp. One problem is that people favoring originalism tend to make even larger claims, such as it is the only legitimate method of interpretation.

     But, more problematically, people subscribing to this label do not have a single standard for understanding the law nor can they show that when the law is applied in this way it is empirically better - e.g., consistent. If they could show this, then we could move on to more interesting discussion, such as the value of consistency in the application to law and how this weighs into just outcomes from a systemic perspective.

     I have less problems with a run-of-the mill positivist. It's a valid perspective, and while I disagree, it is logically consistent. Originalism, on the other hand, goes further and makes additional claims that need support, but they can't back it up.

     Posted by srjenkins at 07/19/2009 @ 9:12pm

135. Posted by snowball777 at 07/19/2009 @ 4:19pm

     As for the 1st amendment considerations, I favor minimal government interference. So, if I were a judge, I'd dismiss the case with the facts you describe - if there wasn't some other (valid) reason for it.

     Posted by Thrawn at 07/19/2009 @ 6:09pm

     Originalism is a concept. If it exists, it exists in our minds. From a philosophical perspective, you are on really shaky ground with this approach.

     I think my example on the death penalty shows that there is no opportunity to strike down the death penalty, if you assume that an originalist would be in support of it because cases demanding it be used would never get to the SCOTUS. So, no way to test it.

     The second example brings up all the issues of how amendments play into an original understanding. After amendments 13-15, how does an originalist understand the Constitution? Yet another problem of coming up with a single standard.

     I am concerned with bringing the real world in this discussion. I know you think originalism would be better, but it doesn't describe the world.

     Anyway, I'll take a look at what you write later and respond more fully then.

     Posted by srjenkins at 07/19/2009 @ 9:21pm

136. <i>Posted by srjenkins at 07/19/2009 @ 1:13pm </i>

     I would draw a couple of important distinctions.

     First of all, there's a difference between analysis at the level of principle and analysis at the level of application. As I've argued, under originalism most of the disagreement takes place at the latter. I'd also argue that this is how it ought to be; judging, in large part, is the gift of ascertaining how the principles inscribed in the Constitution would apply to the situation before you. You take the words of the Constitution, coupled with the understanding those words had at the time. That's not exactly a license to do whatever you want.

     Second, the fact that a philosophical concept exists only in our minds does not mean that its propositions don't have a truth-value. Otherwise, you could simply say any philosophy, by definition, is as good as any other, which is clearly not the case.

     So what do you do with amendments? You integrate them. Where their principles clash with prior texts, the current amendments trump (just as with any statute).

     All I'm saying is...treat the Constitution roughly like a statute. It was designed with specific boundaries and specific rights guarantees, and the only way they remain guarantees is if they're actually anchored to something. Under your position, I have no earthly idea what they would actually be anchored to, which means they are vulnerable to revision at any time a majority of justices so decides.

     There are originalist judges and originalist decisions. It is possible, and I gave you two simple illustrations. I don't understand your reason why the death-penalty claim is judicially unfalsifiable, and it doesn't seem relevant at the point where the argument is clear.

     From whence cometh court authority?

     Posted by Thrawn at 07/20/2009 @ 09:10am

137. Reagan had terrible poll numbers, but look at his record and hsitory.

     both his record and his hsitory are in the toilet. he was a criminal and should have been impeached.

     Posted by emile duBois at 07/20/2009 @ 09:18am

138. Reagan had terrible poll numbers, but look at his record and hsitory.

     both his record and his hsitory are in the toilet. he was a criminal and should have been impeached.

     Posted by emile duBois at 07/20/2009 @ 09:20am

139. Posted by Thrawn at 07/20/2009 @ 09:10am

     "As I've argued, under originalism most of the disagreement takes place at the latter."

     As I've argued, proponents of originalism cannot even agree on whether to use text or intent or the intent of whom, which is prior to any principle or application. If you can't agree on the basic premises, then your argument - based on how you have constructed it - falls apart. You are trying to gloss over this fact and pretend that there is little disagreement or that it doesn't matter much. "You take the words of the Constitution, coupled with the understanding those words had at the time," is one example. You are taking a textualist approach here. The originalist intent group would disagree. And as Marbury shows, it is not the ordinary meaning but the meaning based on English case law that was applied, so other textualists would object on those grounds. And these differences significantly changes principles and how they are applied.

     "...that a philosophical concept exists only in our minds does not mean that its propositions don't have a truth-value."

     If it exists, it is in our mind. To show it exists in the world, you have to have empirical evidence. Newton thought up gravity, and he was able to show how it does exist through empirical evidence. People have thought up "originalism", but you have no empirical evidence for it. So, are we dealing with gravity or unicorns here? I say unicorns.

     "So what do you do with amendments? You integrate them."

     And how long does it take integrate Amendments? Is it like Brown v. Board of Education where it takes about 100 years? What kind of jurisprudence is happening during the lag?

     Posted by srjenkins at 07/20/2009 @ 09:29am

140. Posted by Thrawn at 07/20/2009 @ 09:10am

     "All I'm saying is...treat the Constitution roughly like a statute."

     But, the Constitution is different than a statute. A legislature can modify a statute at will. A Constitution is a legal framework (like a blueprint) and statutes are the laws themselves (like the beams of the house).

     "... they are vulnerable to revision at any time a majority of justices so decides."

     They are vulnerable to revision at any time by any branch of government. Free speech zones seems like one important example that came to be used with regularity during the Bush administration. Congress can pass laws like McCain-Feingold that have 1st amendment implications and the Supreme Court can overturn laws like in Republican Party of Minnesota v. White.

     So, it is not a problem unique to the Supreme Court. The only problem is that there is not an obvious democratic remedy. But, we do have impeachment, and the Supreme Court moves slowly. They don't their own funds nor control of the military. So, if they get too far out of line, they can be reigned in with both.

     I think of it like those houses in California that have central supporting structures that can move in the case of an earthquake. The additional flexibility makes it less likely the whole house will come down, while still providing enough of a structure.

     Posted by srjenkins at 07/20/2009 @ 09:51am

141. Posted by Thrawn at 07/20/2009 @ 09:10am

     "I don't understand your reason why the death-penalty claim is judicially unfalsifiable, and it doesn't seem relevant at the point where the argument is clear."

     Because the real test of originalism in the case of capital punishment is whether it will decide to follow the ideas of the Founding Fathers rather than the ideas of the people currently living.

     So, you would need the court to be prescriptive in some way. Example: They would need to stipulate that the states can only use the methods the Founding Fathers used (e.g., hanging, firing squad) and do so even though the current population has different ideas (such as thinking hanging/firing squad is inhumane). I hadn't considered this before, but this might be another problem: would an originalist court be prescriptive about methods and declare other forms unconstitutional because the founders didn't have these ideas in mind when they wrote the constitution? On what basis do you declare other methods constitutional?

     Because there are states outlawing capital punishment on the state level, the conflict between a current populations objections and a Founding Fathers view never comes into conflict at SCOTUS. So, you only have states where it is actively used.

     If you can think of an instance of how the SCOTUS can impose the founding fathers ideas based on an originalist concepts to capital punishment, I'd love to hear it. I can't think of any.

     On the other end, any overturning of capital punishment would be viewed as activism (of the non-originalist variety). But, that doesn't count as a test of the originalist position.

     I hope this makes the problem clearer.

     Posted by srjenkins at 07/20/2009 @ 10:12am

142. Posted by Thrawn at 07/20/2009 @ 09:10am

     "From whence cometh court authority?"

     Even if you say from the Constitution, it does not mean you have to accept an originalist interpretation. There's Living Constitution, doctrinalist and other interpretations of the Constitution that can be used.

     I've talked about the body of English common law that underlies the Constitution. If you accept this view, then you can both accept that the Constitution grants court authority and at the same time assert that it is not only or even primary source of validity for judicial decisions.

     There's other approaches that can be used as well. But, I think this example demonstrates that this argument is a weak one. It's a framing problem where you are trying to make your interpretation the only legitimate one (without looking at the real consequences I might add).

     Posted by srjenkins at 07/20/2009 @ 10:19am

143. <i>Posted by srjenkins at 07/20/2009 @ 09:29am </i>

     I'll group the empirical debate and the death-penalty analysis into one, because I think this is where the empirical claim I make still stands. The hypo I posited (which the Supreme Court has actually confronted) is the following: is the death penalty per se unconstitutional? There was a strong (and, I think, decisive) argument that it is not. Whether it is unconstitutional in implementation is, of course, another question entirely.

     But what about the sentences themselves? First of all, punishments wouldn't be struck down simply because they didn't exist at the time; I don't know why anything not conceived of at the time of the Founding would automatically be cruel and unusual. Remember, it's not a disjunction, it's a conjunction; unusualness isn't enough even if we measure "unusual" from the time of the Founding (which I don't think we do; the enacting of the Constitution supplies normative principles, not empirical ones).

     Next, I'll start touching on the amendment process. Can it take a while for amendments to actually take hold in the law? Yeah, and interestingly enough, a Supreme Court ruling usually doesn't do the trick. The most effective actualization comes through legislatures, both local and national. The Civil Rights Act did a whole lot more than Brown ever did. This seems to back up the general notion that changing moral values should be applied by legislatures, not courts.

     Posted by Thrawn at 07/20/2009 @ 6:14pm

144. <i>Posted by srjenkins at 07/20/2009 @ 09:29am </i>

     The "non-agreement on details" argument is a curious and dangerous one. Those who call themselves originalist/textualist would generally support the original meaning of the terms involved as the standard, and reject judicial imposition of their own political philosophies. That's the overarching zone of agreement. Yes, there's internal disagreement, but I think this is somewhat analogous to the disagreement on evolution within the scientific community. Are there sharp disagreements on how species evolved and when changes happpened? Sure there are, but to say that these disagreements discredit evolution is manipulative at best and dishonest at worst. I'm not sure why the diversity of views within originalism is any more problematic than this.

     Next, the statutory analysis. I'd argue that as far as courts are concerned, the Constitution is different from statutes in exactly one way: it trumps them. Note, importantly, that it is the Constitution that trumps. The only reason judicial review of laws makes sense in our system is because judges can outweigh lower law (statutes) with higher law (the Constitution). I'll get to your response about the various ways to interpret the Constitution, but I think it's crucial that the Constitution must be the standard, and that's the last part I'll deal with.

     Posted by Thrawn at 07/20/2009 @ 6:19pm

145. <i>Posted by srjenkins at 07/20/2009 @ 10:19am </i>

     Right at the top, I think it's clear that the justices' authority to strike down laws comes exclusively from the Constitution. I'm aware of no argument by which which common-law understanding can trump statutes, and certainly none where the political philosophy of a majority can be the basis for overriding the will of a democratically-elected and accountable legislature.

     I think the really crucial question is this: what does the Constitution mean? Or more centrally and precisely: may its principles change over time without legislative action of any kind, i.e. solely through justices changing their mind about what is right and just? I still fail to see how that's legitimate, and ultimately that's what the common-law is, a fact-centered political philosophical practice.

     Though I suppose it may be overused, I have to go back to the framework argument with which I began:

     a) The Constitution meant something when adopted. Absent this, how it could be a framework of government is not clear. If it had no meaning at the outset, it could hardly be the basis for striking laws down, and absent that, what higher law could be used?

     b) There is precisely one means through which the Constitution's principles may be altered, and the document itself establishes this means.

     As much as you criticize originalism, you have yet to lay out a coherent alternative that can justify itself in a system bound by the consent of the governed, and that can give some standard as to when a ruling is correct. With originalism, that's at least theoretically possible (and, I'd argue, happens a fair amount in practice). I don't see how any alternative you've presented can meet either of these tests, much less both.

     Posted by Thrawn at 07/20/2009 @ 6:26pm

146. Posted by Thrawn at 07/20/2009 @ 6:14pm

     I'm not too interested in the capital punishment argument. I used it mostly for the rhetorical analogy. I ultimately agree that the other avenues, in this and most cases, is adequately handled through legislatures and executive power. Still, there are cases, like slavery, that may require civil war - or in less drastic cases, judicial decisions.

     New punishments show that it's subjective. You look at how capital punishment was done. You develop some principles. Then, you apply those principles to new approaches. The "develop some principles" part is where subjective assessments get smuggled in.

     I don't have any issues with the amendment process other than the fact that it is not designed for easy change. If you go with the originalist perspective, you more or less are stuck with doing a lot of amendments. I think that is bad.

     Posted by Thrawn at 07/20/2009 @ 6:19pm

     "The "non-agreement on details" argument is a curious and dangerous one."

     It's the central issue. You assert that originalism provides an adequately narrow band of interpretation. I argue it does not. For support, I point to the inability to agree on first principles, wide ranging opinions offered on orginalist ground, reversals, etc. What are you offering in empirical support? Nothing, it always comes back to theory.

     As for statutes and Constitution, we don't disagree here. Where we disagree is that I think you need the common law tradition to understand the constitution and I view the Constitution as a legal framework rather than a document of laws.

     Posted by srjenkins at 07/20/2009 @ 10:18pm

147. <i>Posted by srjenkins at 07/20/2009 @ 10:18pm </i>

     I should hope that you don't see civil war as a first remedy to problems. :D

     I certainly recognize that originalism isn't a perfect framework. There's a lot of ambiguity in the historical record, and so there's room for disagreement (as has been manifest in many court decisions). What I'm saying is that it's the best option we have and the only one which we can justify at the theoretical level.

     That's the biggest issue I have with major alternatives to originalism. I view the theoretical as a precursor to the practical in this respect: any judicial philosophy has to first pass the basic muster of legitimacy. It must involve the exercise of authority consistent with a system that is anchored in the consent of the governed. That's why I don't focus as much on the empirical dimension; if alternative theories can't even pass the first round of tests, the later rounds don't mean anything. I just don't see how they can pass it.

     Moreover, I'm still not entirely clear on what your framework actually consists of.

     For instance, let's look at the common-law part. Which part of the common-law tradition would you find to be relevant? More centrally, if common-law is ultimately little more than judges and justices articulating their philosophies, how can that possibly constitute the supreme law of the land? I accept the common-law perspective in the sense that I think it informed the meaning of the Constitution's terms when the document was actually enacted. Once that happened, though, I think that change in the document was to be left to the amendment process.

     Why is amendment difficult? I'd argue it's because there are lots of questions the Constitution isn't supposed to answer, as we seem to agree on.

     Posted by Thrawn at 07/20/2009 @ 10:38pm

148. Posted by Thrawn at 07/20/2009 @ 6:26pm

     Common law defines statutes. They are the flesh on the bones.

     "What does the Constitution mean? Or more centrally and precisely: may its principles change over time without legislative action of any kind, i.e. solely through justices changing their mind about what is right and just?"

     This is also where we differ. Because of the organic development of common law, it does change. There is a growth process involved and the Constitution changes.

     I've never read much about the Living Constitution position, but a quick scan of Wikipedia has me agreeing with the bulk of it - based on pragmatism and libertarianism. I could have offered up some variation of the arguments quoted from Oliver Wendell Holmes Jr. and Richard Posner.

     Posted by srjenkins at 07/20/2009 @ 10:38pm

149. Posted by Thrawn at 07/20/2009 @ 10:38pm

     The question is not whether it is perfect, but whether it works at all according to the theory. I don't think it does.

     I'm generally someone that believes that there is nothing more important than theory. But, the theory has to be useful and have explanatory power. While I understand what is motivating people to go with originalism, it just strikes me as another variant of favoring the letter over the spirit of the law.

     "That's why I don't focus as much on the empirical dimension; if alternative theories can't even pass the first round of tests, the later rounds don't mean anything. I just don't see how they can pass it."

     This is funny. I approach this the exact opposite direction. If a theory doesn't pass the empirical test, then it's just unicorns. It gets dismissed. Originalism is unicorns to me. It's a nice idea, but it isn't actual.

     From my way of looking at it, common law is definitional. It's like reading a word, over and over, in different contexts where to have a sense of that word that may not necessarily be in the dictionary definition. I frequently have conversations with my wife where I'll have some strange aesthetic sense about how a word should be used that's a little different than what the dictionary says. I think common law is like that. It's intuiting what's right to a particular case based on an encyclopedic knowledge of the law, and this is not something that is reducible to an algorithm. It's judgment.

     Yes, we agree that the Constitution has a limited purpose. We differ significantly on what we imagine the purpose is of the Constitution, however. This is likely why you and I come to conflict on this issue so often. But, it's always interesting. =) Thanks.

     Posted by srjenkins at 07/20/2009 @ 10:53pm

150. <i>Posted by srjenkins at 07/20/2009 @ 10:38pm </i>

     Common-law informs statutes...yes and no. Common-law in existence when a statute is crafted informs it. Common-law that develops afterwards cannot retroactively inform a statute because that is conceptually incoherent. A statute is what the legislators ratified, nothing more, nothing less. They didn't ratify future metamorphoses.

     Because I remain as convinced as before that any position has to pass the basic theoretical tests I've outlined before any of the empirics even start mattering, I don't see how the pragmatism part works. Moreover...why a libertarian political philosophy? Why not an extremely conservative one? Justices don't get authority to overrule laws because their political philosophy happens to be the right one; they get it because they're acting on grounds to which the people can meaningfully be said to have consented to (in the same way as they are deemed to consent to statutes and things). Without that consent, their legitimate authority is nonexistent no matter how good their political philosophy is.

     That's why the common-law approach just seems uncompelling here. Sure, they're in a position to make the call, but that doesn't mean that whatever basis they use is automatically legitimate. That test of legitimacy is one that I think any judicial philosophy has to pass before any other consideration matters.

     Posted by Thrawn at 07/20/2009 @ 10:54pm

151. Posted by Thrawn at 07/20/2009 @ 10:54pm

     "Common-law that develops afterwards cannot retroactively inform a statute because that is conceptually incoherent."

     It is a fact that in many circumstances, common law predates the statute. Common law also makes sense as a development of the statute over time, even when we assume the statute predates it. Judicial interpretation is much like administrative interpretation - it expounds and fills in the law. In doing so, it changes it.

     "...they're acting on grounds to which the people can meaningfully be said to have consented to..."

     I'd argue that I didn't meaningfully consent to the Constitution or anything the government does. So, I don't get hung up on this issue. I don't view any government as legitimate. It is merely useful, or not.

     Posted by srjenkins at 07/21/2009 @ 12:28am

152. <i>Posted by srjenkins at 07/21/2009 @ 12:28am </i>

     Interesting. So you get out of the whole theoretical discussion by saying that you never consented to any of it. Would you then argue that a monarchical system would be no less legitimate than our currently, RELATIVELY democratic system?

     If not...doesn't legitimacy still matter? If so...outside of pragmatism, you could have no grounds for criticizing a justice who decided to eviscerate the First Amendment.

     Finally...if government is all about practicality, I'd love to hear why philosopher-kings with relatively narrow authority are a good thing. You certainly can't say that they provide a balance of progress, because court rulings can cut in either direction. Lacking clear moorings, as your position seems to entail, I don't know why the net contribution of the judicial branch would be good if they're doing nothing more than imposing their own political philosophy on a population that disagrees.

     Posted by Thrawn at 07/21/2009 @ 4:51pm

153. Posted by Thrawn at 07/21/2009 @ 4:51pm

     "Would you then argue that a monarchical system would be no less legitimate than our currently, RELATIVELY democratic system?"

     None are legitimate. So, in that sense, a hypothetical monarchy has as much lack of legitimacy as the Constitution. No one alive ever voted for the Constitution, and any "legitimacy" is drawn from an accident of birth and history. It's a useful fiction, nothing more.

     As for justices doing things we don't like, we could threaten them with French Revolution style uprisings or worse, we could just ignore them. We could go within the system and impeach them, cut off their funding or create a Supreme Court of 101 justices. We could override their rulings with other laws - which will take them a better part of a decade to even consider.

     So, basically, it is a supreme conservative institution that knows not to push it or they end up losing all of their power. They serve a necessary function, so most people don't get bent out of shape one way or another about whatever they are up to. And this is as it should be.

     Posted by srjenkins at 07/21/2009 @ 7:36pm

154. <i>Posted by srjenkins at 07/21/2009 @ 7:36pm </i>

     Let me get this straight. You're outright conceding that there's no real difference in legitimacy between a democracy and a monarchy? Or at least, any democracy with a constitution? Presumably, that would also apply to any law passed before you were born; should every law be renewed, say, every 5 years to make sure they're legitimate?

     Entities which are not legitimate have no rightful claim to authority. The logic outworking of your position is that disobedience is justified whenever it would be convenient. It's worth noting that this premise is crucial to your argument, because as long as the test of legitimacy remains relevant, non-originalist alternatives become awfully hard to defend.

     But is this premise true? I'm not sure why. Surely the fact that you alone can't change the rules of the system doesn't make that system illegitimate; otherwise, nothing but a million fiefdoms would be legitimate. Your narrow notion of consent accepts only something that you directly and immediately agreed to; one wonders, following the train of logic you articulate here, whether ordering food conveys any obligation to pay for it. After all, you never tell the waitress "yes, and I'll pay the corresponding amount that you list in this menu."

     What you are actually suggesting, if I'm reading you right, is that all realistic government is definitionally illegitimate, and therefore that the oonly limitations on it are based on what it is and isn't physically capable of doing. By this standard, notions of law and ethics basically disappear or are reduced to convenient guidelines that can presumably be broken if one prefers to do so and can get away with it. Are you sure this is what you want to defend?

     Posted by Thrawn at 07/22/2009 @ 9:15pm