Richard Epstein and Tea Party Constitutionalism. Two peas. Different pods.
One week ago yesterday, the New Republic published a Cass Sunstein article that reviews Richard Epstein’s latest book The Classical Liberal Constitution: The Uncertain Quest for Limited Government. While I am familiar with some of Epstein’s work, I have not read his latest book. However, my purpose here is not to critique Sunstein’s criticisms of Epstein’s work but rather my purpose is to challenge Sunstein’s claims that Epstein’s legal theories serve as the intellectual framework for Tea Party constitutionalism.
…if Tea Party constitutionalism has academic roots, or a canonical set of texts, they consist of Epstein’s writings. More than anyone else, he has elaborated the view that our Constitution is libertarian, in the sense that it sharply restricts the power of the national government, and against both the nation and the states, creates strong rights-based protections of private property and freedom of contract…
…In many places his discussion is highly technical, but in some important respects—of course not in all—you can take it as a careful and sophisticated guide to Tea Party constitutionalism…
…Everyone knows who Rand Paul’s father is, but in an intellectual sense it is Richard Epstein who is his daddy…
He doesn’t specifically define Tea Party constitutionalism, but I think it’s pretty easy to get a working definition that we can mostly agree upon. The three characteristics I would associate with Tea Party constitutionalism are as follows: strict construction (with one amendment to rule them all), constitutionally limited government and federalism/decentralization. There’s overlap but this is close enough.
Unquestionably, Epstein argues for a libertarian reading of the Constitution. I agree with Sunstein on this point. Also, Epstein’s views overlap with Tea Party constitutionalism in a number of respects, especially with respect to the scope of federal power. However, to consider Epstein as one of the intellectual architects of Tea Party constitutionalism overlooks three important points.
The first point is that Tea Party constitutionalism is rooted in our history. Adherents to this doctrine are more likely to quote from the Declaration of Independence, the Constitution, the notes from the ratification debates, the Federalist Papers, the Kentucky and Virginia Resolutions and the Report of 1800 before they would think about quoting from Takings or How Progressives Rewrote the Constitution. I don’t mean to detract from Epstein’s work, but because of the historical nature of Tea Party constitutionalism, its supporters are more likely to be well versed in the writings of James Madison, Thomas Jefferson, Alexander Hamilton, John Jay, Robert Yates and Luther Martin, to name a few.
The strict constructionism of Tea Party constitutionalism very much has a historical basis. Below is a passage from St. George’s Tucker’s Appendix to Blackstone’s Commentaries:
Whether this original compact be considered as merely federal, or social, and national, it is that instrument by which power is created on the one hand, and obedience exacted on the other. As federal it is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question as a social compact it ought likewise to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the subject of dispute…
The second point is that Tea Party constitutionalism is a form of popular constitutionalism that is removed from most of the mainstream legal and constitutional theories debated in legal academia. It’s historically based and presented in a way that is meant to be as accessible to people without law degrees as possible. Epstein’s material is dense and, at times, highly technical, so much so that people may get a bit caught up in his arguments (it’s happened to me). In my opinion, because Tea Party constitutionalism is a very plain if not crude constitutional theory that is stripped to its barest bones, Epstein would not be the best spokesperson.
My third point is that rather than embrace Epstein, Tea Party constitutionalists are likely to reject his view on two key points. For the first reason, I’ll quote Sunstein:
…Epstein is a moral reader. He objects that progressives ignore the constitutional text, and of course he cares about it, but he acknowledges that on many issues that matter, the text, standing alone, does not mandate his interpretation…
As Tea Party constitutionalists are more likely than not to say that a moral reading of the Constitution is most closely associated with methods of constitutional interpretation favored by liberals (i.e. – the living constitution), then assuming that Sunstein’s opinion of Epstein as a moral reader is correct (and I see no reason to disagree), then Epstein’s approach will be rejected by Tea Party constitutionalists simply because they will reject any moral reading. As far as I have been able to tell, there is no historical case (by historical, I mean the ratification era) for a moral reading of the Constitution.
The second reason Tea Party constitutionalists are likely to reject Epstein is because Epstein believes in a “strong” 14th Amendment that provides strong federal protection of liberties against the intrusions from state governments. My opinion is that Tea Party constitutionalists would most likely reject this view, as strong federal interference in the affairs of states conflicts with its overall theme of decentralization. Tea Party constitutionalists are more likely than not to side with Raoul Berger, whose book Government by Judiciary, puts forth the argument that the only purpose of the 14th Amendment was to give constitutional justification for the Civil Rights Act of 1866. Berger completely rejected incorporation of the Bill of Rights and would have rejected Epstein’s views given that he criticized the Supreme Court for meddling in the economic affairs of the states.
A couple of parting thoughts…
Sunstein claims:
There is an important lesson here about Tea Party constitutionalism as a whole, for the supposed project of “restoring” the original Constitution, or going back to the genius of the Founding generation, is often about twenty-first century political convictions, not about the recovery of history.
Tea Party constitutionalists would reject this by pointing to a number of historical sources, but Sunstein makes a good point. Even if I reject the idea that modern constitutionalism has little if any lineage to the document as originally ratified (more on this in a bit), what history tells me is even if we can go back and determine the meaning of terms like “commerce”, “necessary and proper” and general welfare, the ratification of the Constitution never completely settled the scope of the power under those clauses. Those boundaries of those powers were initially established through the Supreme Court jurisprudence of the Marshall Court, especially in cases like McCullough v Maryland and Gibbons v Ogden, which greatly expanded the scope of the Necessary and Proper and Commerce clauses, respectively.
Also, to the extent that some cite history as the influence for their political principles, it’s not clear that the “recovery of history” is consistent with constitutional meaning. Take for example the modern nullification movement (known as the Tenthers). Without getting into the details of nullification**, the “Tenthers” cite the political principles of the Kentucky and Virginia Resolutions of 1798. The constitutional vision, the constitution as a compact amongst sovereign states, arguably conflicts with the history of the ratification era and how peopled viewed the Constitution, especially its opponents.
I can’t speak to the points Sustein makes about Epstein’s book having not read it, but if he’s looking for an intellectual godfather, he’s got the wrong guy. The first name that pops into my mind is Thomas Jefferson but opinions may vary on that.
To the extent that there is a book that best summarizes Tea Party constitutionalism, I would direct readers to Kevin Gutzman’s The Politically Incorrect Guide to the Constitution. It’s a very accessible book to non-readers and it’s written more with a historical perspective than a legal theory perspective. Professor Gutzman, a libertarian that considers himself a Jeffersonian, lays out the historical case. My views differ from his on a number of points, but, in my opinion, it’s still the most accessible book out there that best summarizes Tea Party constitutionalism in a single very easy-to-read textbook.
** The modern definition is more expansive than the one usually attributed to the 19th Century doctrine advanced by John C. Calhoun. A description can be found here.
Thanks to James Hanley for the second set of eyes.
Good essay.
Schools of Constitutional Interpretation probably say more about the adherents than it does about the Constitution and since the US seems to be heading to further and further polarization, people seem to think their school is the one true school and everyone else is a fraud and traitor.
I’ve heard Scalia talk. He can be funny and charming but he basically called all liberals freaks for their version of constitutional interpretation and he did this in SF which means he has a good chance of provocation.
I don’t necessarily care that Tea Partiers can quote all the things so said they can quote because they can still (and probably are) coming to their conclusions first and working backwards to find the evidence. According to Haidt, most if not all people come to their conclusions first and then work backwards to find the evidence. He would also say most people believe that is true for their opponents but not themselves. I see no reason to give Tea Partiers special pleading or circumstance from Haidt’s neuroscience view of political thought formation.
There are also plenty of dog whistles in Tea Party constitutionalism (at least that I can see), their beliefs on why the 14 Amendment was passed was rather revealing in a way that would get Spock to raise his eyebrows and say “fascinating.”
It seems to me that if American politics is currently in a never ending kulturklampf (which it might have been since the dawn of the Republic), the Constitution is just another tool for sides to declare themselves correct and true and the real Americans (TM).
This is not necessarily a thing unique to America. The recent EU elections show that right-wing populism is also making a comeback abroad.Report
@saul-degraw
Schools of Constitutional Interpretation probably say more about the adherents than it does about the Constitution and since the US seems to be heading to further and further polarization, people seem to think their school is the one true school and everyone else is a fraud and traitor.
If I viewed you as a fraud and traitor, how would we ever have a civil conversation about this? You and I probably don’t agree much on this subject, but my political leanings aside, I don’t see differing viewpoints as a sign of bad faith.
The people that think that way aren’t worth your time…or mine.Report
@dave
I was not making a general observation on the tone of debate, heated language, and feelings across the nation. Not discussing you specifically but I agree. I don’t necessarily think it is wrong or bad to have different schools of thought but there is an inherent tension here that is very hard for people to follow because different schools of interpretation lead to different results and conclusions more often than the same result.Report
I see Tea Party constitutionalism as a form of idolatry. They seem to treat the Constitution as something of an idol to be adored and kept in a state of purity rather than a framework for government made out of a series of compromise. The Founders are treated as prophets rather than politicians trying to so something new. They treat the Constitution as holy writ.Report
I support this idea.Report
So Jesus didn’t hand down the Constitution?
Huh, the things you learn around here.Report
Oh Dear Lord. Thats a violation of the 2nd Commandment if I ever saw one. Take about making a graven image.Report
I thought that was parody. Like the cartoonist for The Onion. Then, to my horror I read the text below.Report
This is the more accurate one, anyway.Report
@will-truman @leeesq
Nope. The dude is a true believer. He has been covered in the liberal media before:
http://gawker.com/tag/jon-mcnaughtonReport
Then there’s this:
http://turoks.net/Cabana/OneNationUnderGod.php
I guess I’m dating myself. I recall when this appeared in The Realist.Report
They do? Then we should see that in action. Screw their words, I’ll look at what they do, and have done. And we have a history – the Bush administration. The right was fine with them doing whatever they could get away with. It wasn’t until the GOP lost in 2008 that these people starting dressing up and whining.
I would also point to state governments run by the Tea Party, but as mentioned, their theory of the constitution is ’50 dictatorships’. Convenient.Report
They treat the Constitution as holy writ.
Personally, I see the Constitution as something that has a process to change it and, if we want to change it, we should change it rather than contort sentences.
If you want people to not have guns, *REPEAL THE 2ND*. THERE IS A PROCESS TO DO THIS.
If you don’t like the process. *CHANGE THE PROCESS*. THERE IS A PROCESS TO DO THIS.
Of course, changing things *IS* difficult and it’s a lot easier to just say that people who don’t agree with you are irrational.Report
How about things like the Commerce Clause where we argue about whether it is narrow or expansive?Report
Saul,
I’d find that a more compelling example if there wasn’t such a clear break between past and present. Something that was more thoroughly debated all along, with never a clear predominance of opinion, would seem a more likely case.Report
@james-hanley
The way I learned it is that there has always been a huge back and forth on Commerce Clause interpretation. The Marshall Court had a rather broad interpretation and then it got narrow during the Industrial Revolution and broad again in the New Deal and narrow again during the Rehinquist court.Report
@saul-degraw
I would say that the scope of federal power was narrowed as early as the Taney Court. Even after the Civil War and a shift in the attitude about increased centralized power, the SCOTUS was generally leery about it and it’s jurisprudence for the most part reflected that. While there were certain areas of law that the court seemed somewhat hostile towards (i.e. labor law), the court upheld most state level economic regulations. The court’s jurisprudence held the line on federalism as best it could but it was hardly purist about it. By the time 1937 rolled around, the Commerce Clause did cover intra-state commerce that was shown to have a direct impact on inter-state Commerce.Report
Saul, here’s my problem with modern Commerce Clause jurisprudence:
Can you name me five things that do not fall under the Commerce Clause? (Please note: if I can explain how your example is similar to the things covered by Gonzales v. Raich, it doesn’t count.)
I submit: if you can’t, it seems to me that the CC is being interpreted a hair broadly.Report
“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed”
You seem to be implying that there is not, or cannot be, a serious and sincere disagreement over the interpretation of this phrase.* Am I reading you right?
I come at these things from an entirely different perspective. Namely, that though the interpretation is always tied to the text, the various possibilities are indeed broad. To use the commerce clause as an example. There is an interpretation that only allows for federal regulation on the instrumentalities of interstates commerce and interstate commerce itself (both narrowly defined). I readily admit that this is a plausible interpretation of “regulate commerce . . . among the several states,” but, with that said, is it the best interpretation of the phrase? I’ve already gone on longer than I meant to, but its clear (at least to me) that there are a number of plausible interpretations of this clause. Each focusing on different sources and elements–the founders intent, the words meaning at the time, how the clause was applied after enactment, the purpose the clause was meant to remedy–with each coming to slightly different conclusions. Then we hash it out, and let the best idea win.
*There is also a disagreement over how the phrase were interpreting should be punctuated, and whether that even makes a difference.Report
@jaybird
Gun possession at school (Rehinquist court decision), a federal cause of action in the Violence Against Women act (Rehinquist decision), The ability of states to exclude unwanted commerce like trash coming through their states (dormant commerce clause).
I think one of the bridges diving conservatives/libertarians vs. liberals is framing rights in a negative or positive manner. Conservatives seem to still see Heart of Atlanta and Ollie’s BBQ as infringements on property rights. I see those cases as manifestations of positive rights and that civil rights (the right for minorities to fully participate in economic and civil life) trump property rights.
I admit that there is a long history of tension between civil and property rights in the U.S. I think civil rights trump property rights personally.Report
I submit: if you can’t, it seems to me that the CC is being interpreted a hair broadly.
I’m curious, but why? It seems that when the CC comes up and the Broccoli argument with it, the reasoning seems to be “And that’s not how it should work!”. Which seems a bit living Constitutionalism to me.
Congress does have quite a bit of power over commerce, from the plain words of the Constitution. And Commerce, as Adam Smith could tell you, pretty much effects everyone and everything.
That might be more power than you (or I or him or whatever) wanted. Or thinks is proper.
But why is the default “It should be limited!”. I mean, yes, many people are for very limited government. Awesome. They’re not the default, anymore than I am.
If the CC is very, very, VERY broad it’s….very broad. Maybe we should make it less broad. Maybe we shouldn’t. But the fact that it’s broad doesn’t make it wrong.
Frankly, I have a really hard time reading the CC and thinking about what ‘commerce’ is and not coming to a “Holy crap, that covers a TON of ground” — I mean, we’re not talking living Constitution here — we’re talking plain language and facts of life (and economics). Maybe we should amend it and make it narrower, but the plain language seems pretty freakin’ broad — but that doesn’t change the plain language, you know?Report
An opportunity for all of us to play Constitutional Lawyer:
http://en.wikipedia.org/wiki/Article_One_of_the_United_States_Constitution#Section_8:_Powers_of_Congress
The part I care about is “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
My assumption is that the folks writing the document were going out of their way to specifically delimit the powers of the government and included stuff like the sentences that explicitly said “The Congress shall have power to” were intended to be exceptions from the presumption of limited power rather than coming out and saying “Congress can pass whatever laws it wants as there is nothing outside of Congress’s jurisdiction.”
The founders could be terse when they were in the mood to be, after all.
Now, of course, this is one of those things that goes back to Wickard and is an example of the Supreme Court wincing after FDR threatened to pack the court… and, of course, the interpretation that gives more power to the feds will always (okay, *ALMOST* always) be preferred by the feds to one that says that these powers should be retained by the states or by the people. So, at the end of the day, you can probably comfort yourself with the fact that the people in power agree with you.
But it seems to me that, for example, friends of Angel Raich giving Angel Raich a bag is not an example of commerce among the various states. Wickard giving wheat to his horses is not commerce among the various states.
But, sure, that’s as open to interpretation as “cruel and unusual”, isn’t it?Report
But, sure, that’s as open to interpretation as “cruel and unusual”, isn’t it?
I don’t know, to me it seems like one is deliberately sorta arranged to be limiting, and the other one is deliberately sorta arranged to not be.
I mean, numbered lists usually indicate “you can do (or are prohibited from doing) the things on this list”.
Statements of principle usually indicate “we think stuff that falls into this squishy basket is probably bad (or good) enough to warrant a blanket prohibition (or not).”Report
Out of curiosity, have you read Wickard or do you honestly think that’s what it said?
Wickard’s fairly straight forward (if perhaps a bad idea) — there was a maximum amount of wheat farmers could grow, a quota designed to stabilize wheat prices. We all agree that the wheat market is, in fact, commerce right?
Wickard grew more than his allotment, claiming it was for ‘personal use’.
The court pointed out that if he used that much wheat, wheat he grew was wheat he didn’t buy — in short, that wheat was fungible. (Is wheat not fungible?). Ergo, the law applied even if he hadn’t sold it.
Now while a kind of an edge case (which, you know, most SCOTUS cases are) there’s actually quite a bit more to it. It’s certainly far more there than it’s often characterized as.
But again: Commerce is far reaching, and the Constitution is pretty vague on the Commerce Clause. It sets, in fact, no real limits beyond “necessary and proper”. The people who wrote the Constitution were not charged per word, so they could have easily placed limits on it.Report
Pardon me, let me rephrase.
It doesn’t seem to me that “commerce among the various states” would include acts such as growing a plant on your land (with your seed, and your sun, and your water) and feeding it to your horses or giving it to your neighbor. And yet those acts are agreed to be covered by those in power. Should it really surprise us when we have discussions over what, exactly, constitutes “torture” and whether the 8th Amendment would, in fact, prohibit it?Report
@morat20
“I submit: if you can’t, it seems to me that the CC is being interpreted a hair broadly.
I’m curious, but why?”
Because then it would just be a general police power for a government that’s not one of limited powers. That’s not what ours was designed to be: it was designed to be a government of limited–delegated–powers (with the remainder remaining to the states), and the commerce power was meant to be one of those delegated powers, but not one of unlimited applicability.
In other words, the why not is because it would work a fundamental change in the nature of the U.S. government. And I say, if that’s what we want, then let’s argue about it and try to do it aboveboard, in the regular process,* rather than try to sneakily backdoor it in stepwise fashion.
___________________
*While I would be one of the people in opposition, I’d accept it as an outcome of that process. Trying to do it any other way seems to me like letting the ends justify the means, which I think is most often wrong.Report
Again: The word “commerce” covers practically everything, because practically everything is commerce. As noted, there are limits (guns and schools, for one). And the Constitution’s only limits on the Commerce Clause are ‘relates to commerce’ and ‘necessary and proper’ and ‘not running afoul of other specific restrictions of power or granting of rights’.
however, if you agree the wheat market is ‘commerce’ and that wheat is fungible (that is, any bushel of wheat is equivalent to any other’, you’re stuck with Wickard.
Your problem seems solely to be you don’t think it SHOULD be that broad, that there should be limits. Where in the Constitution’s text is it limited further?
To be blunt: Just because you (or I) might say “That shouldn’t be right” doesn’t make it wrong.Report
@jaybird
Wickard willfully took part in a government program during the New Deal and part of the strings for the program was that he would follow the quotas. His my own land argument was an ex-post facto justification when he was fined for not following the program.Report
it was designed to be a government of limited–delegated–powers (with the remainder remaining to the states), and the commerce power was meant to be one of those delegated powers, but not one of unlimited applicability.
Says where? It seems like we’re doing a lot of interpreting and adding language.
Again: “Commerce”, “Necessary and Proper”. Those seem to be the primary limits. Must involve Commerce and the laws proposed must be on point (necessary and proper).
Wickard involved commerce (the wheat market) and the quota system was certainly necessary and proper to what Congress wanted to do with regulating commerce. So the only question the courts had to face was “Is wheat fungible”. If yes, Wickard loses. If no, Wickard wins.
We can talk about design and intent, but wasn’t this started by saying if you want to be strict constructionist you don’t get to do that?Report
“Wickard willfully took part in a government program…”
If that’s your reasoning, then you don’t even need to go that far. Wickard, due to existing within the borders of the United States, was subject to anything Congress cared to do. Not so?Report
Morat, I do not disagree that the government asserts that it has the jurisdiction to tell people that wheat grown and fed to horses is “commerce among the states” because, hey, if he didn’t do that he would have had to buy it.
I just disagree that growing wheat and feeding it to your horses is commerce among the states.Report
@gaelen
There is an interpretation that only allows for federal regulation on the instrumentalities of interstates commerce and interstate commerce itself (both narrowly defined). I readily admit that this is a plausible interpretation of “regulate commerce . . . among the several states,”
This is exactly how it was understood in 1789. It was defined very narrowly.
but, with that said, is it the best interpretation of the phrase?
Apparently not.Report
I just disagree that growing wheat and feeding it to your horses is commerce among the states.
So you claim wheat is not fungible?
Look, if you’re going to claim the outcome is absurd you need to show where it left the rails. Wickard relies on a handful of facts: One, wheat market = commerce. (Was the wheat market commerce between the states) and two: Is wheat fungible?
Which of those two statements is bugging you? I mean I realize you dislike the outcome and think it’s wrong, that’s understandable — but if you’re gonna argue it’s unconstitutional or whatnot, you’re gonna have to break the legal chain here because gut feeling and personal preferences aren’t really a sound basis for decisions here.Report
I just disagree that growing wheat and feeding it to your horses is commerce among the states.
Or, you can lead a horse to water AND make him drink; but it should be across a state line before the Fed gets involved.Report
“So you claim wheat is not fungible?”
So there was evidence that Wickard was actually providing his wheat to other farmers?Report
This is exactly how it was understood in 1789. It was defined very narrowly.
That’s debatable, especially in light of Gibbons, which was in 1824.
Unless you’re claiming that in a mere 35 years the meaning of ‘commerce’ radically changed from what the Founders intended.
I mean, good lord, Gibbons was talking solely intra-state commerce. (River navigation solely inside the borders of a state).Report
I will try to demonstrate its absurdity through an analogy to thingy.
If I engage in thingy with my wife, should that be covered by the interstate commerce clause?
It depends on the extent to which thingy is fungible, of course, but it seems that there are quite a few people out there who engage in what is called “the oldest profession” who provide thingy to people who are willing to provide the necessary funds.
Given that we can put a dollar amount to thingy (given that people do), surely the thingy that happens between happily married couples would also be covered by the CC.Report
So there was evidence that Wickard was actually providing his wheat to other farmers?
Do you not know what ‘fungible’ means? Or did you not read Wickard? Or a synopsis of Wickard?
The question you’d want to ask is: If Wickard didn’t grow extra wheat for personal use, would he buy what he needed or go without? And given laws are written in general, the fact that he COULD buy it was all that was necessary.Report
“it was designed to be a government of limited–delegated–powers (with the remainder remaining to the states), and the commerce power was meant to be one of those delegated powers, but not one of unlimited applicability.
Says where? It seems like we’re doing a lot of interpreting and adding language. ”
This is very simple. Article 1, section 8, says “Congress shall have power to…” and gives a specific list of things it has power to do. This is in marked contrast to the concept of a government with the general police power to regulate for the health, safety, and welfare (and sometimes is added the word morals) of the public. If you create a government that’s got the general police power, you don’t need to make an explicit, and limited, list. It would be logically contradictory to do so.
In Federalist 45, Madison wrote:
The concept of federalism, as it has always been understood even throughout its considerable evolution, would be incomprehensible. It has always been understood that some powers are beyond the direct legislative reach of Congress. For example, even today it’s understood that Congress can’t regulate educational standards directly, but can only do so through the means of giving/withholding grants to the states.
Along with that, the 10th Amendment is specific about the issue.
No words need to be added to see that not all legislative power was delegated. In fact one of the criticisms of the 10th is that it doesn’t add anything substantive to the Constitution, but is merely a restatement of what the Constitution already makes clear.
This is really standard–consensus, or likely even unanimous–constitutional theory and understanding of the design of the American system. Everyone who studies constitutional law and/or American government agrees with this, regardless of ideological perspective. What they disagree on is what we should do with that foundation point; whether we should stick more rigorously to it, whether the way we’ve relaxed it to date is sufficient, or whether we should chuck it entirely (which doesn’t mean chucking the explicit limits in the Bill of Rights, but just saying Congress can legislate on anything they are not explicitly forbidden to legislate on; the Bill of Rights would be exceptions to the general power).
You can legitimately argue that the U.S. government ought to be something very different from a government of limited powers, but I don’t think you can legitimately argue that it wasn’t designed to be a government of limited powers. It’s a flat-earth level argument.Report
Jaybird,
Sex with your wife isn’t fungible. Your WIFE isn’t fungible. If I, through negligence, kill your wife I cannot make your losses whole by handing you another woman and saying “here you go”.
Not to mention you’re conflating goods and services.
Honestly, you appear to have decided the Constitution simply CAN’T authorize Wickard, therefore it doesn’t. Not that, perhaps, the Constitution doesn’t fit what you’d prefer. Or even was written by people who didn’t really think it through — or who, you know, were slamming together a compromise document.Report
You can legitimately argue that the U.S. government ought to be something very different from a government of limited powers, but I don’t think you can legitimately argue that it wasn’t designed to be a government of limited powers. It’s a flat-earth level argument.
Thrilling stuff, but we’re back to the point that the Constitution’s only limits on the Commerce Clause are “Commerce”, “Necessary and Proper” and “explicit things it’s forbidden in other places”. (IE, it cannot use the Commerce Clause to violate the first Amendment).
Now, the Constitution might be all “limited government” in theory, but where it got written down here for this case, the limits are pretty much not there. “necessary and proper” is about it.
So while it’s awesome that the theory behind the Constitution is all “limited government great”, that doesn’t change words on paper wherein you’re effectively saying “Despite what it SAYS, it’s different, because THEORY”.
Madison ain’t the prophet of the Constitution and while the 10th Amendment is awesome, it’s not exactly applicable to the CC. So again, we’re back to where we started: The CC is written very broadly with few limits, which is how it’s been applied. You think that’s wrong, because the Founding Fathers couldn’t have meant that despite that being what they wrote.
I’ll point out Gibbons again: 35 years after the signing and the CC was used to regulate commerce that never left a state’s borders.Report
Wait, are services not “commerce”? I SMELL LOOPHOLE!!!!
Oh, anyway, yes my *WIFE* is not fungible. Not at all. Not even a little bit.
But we weren’t discussing my wife. We were discussing thingy.
Is thingy not fungible?Report
The word “commerce” covers practically everything, because practically everything is commerce. As noted, there are limits (guns and schools, for one). And the Constitution’s only limits on the Commerce Clause are ‘relates to commerce’ and ‘necessary and proper’ and ‘not running afoul of other specific restrictions of power or granting of rights’.
Eh, no, on a couple points. The Constitution’s other limit on regulation of commerce, it’s most historically important one is “interstate.”
Your fungibility argument is one line of thought on interstate commerce, but it is far from evidently the correct one, and far from evidently what the Framers envisioned. If you look at the economic problems that first spurred interest in amending the Articles, they had to do with more direct interstate commerce problems, like states setting discriminatory tariffs against each other. There’s no legislative history suggesting that they wanted a power to regulate all commerce that had some faint affect on interstate transactions.
Also, education has never yet been declared to be interstate commerce. That’s why Congress has never tried to regulate education directly, but does so through grants-in-aid to states. States have full authority to disregard No Child Left Behind…but Congress has no obligation to give any state education funds if they don’t want to adhere to the attached strings. States don’t go along because Congress can command them; they go along because Congress successfully bribes them.Report
Would that by rubbing my belly I could get rid of hunger.Report
If Wickard hadn’t done what it did for interstate commerce, then Amazon and entire intertoobz thing would have done it. Anything and everything is and can be interstate, international and very possibly interstellar commerce now.Report
There’s no legislative history suggesting that they wanted a power to regulate all commerce that had some faint affect on interstate transactions
Gibbons. 1824. State regulating transit entirely inside it’s own borders. State lost.
I submit that if the Founder’s “intent” was dead on the CC 35 years after the Constitution was signed, you might as well accept it as reality now and arguing “original intent” is going to require a lot more than some Madison quotes, because Marshall didn’t buy it either.
Jaybird,
Thingy is a service. Services are far less fungible, in general, than goods. A pound of specified grade coal is akin to any other pound of coal, but a pound of artwork varies depending on the artist even if the materials are identical. Thingy is most definitely a service, and the fact that I can’t swap your wife out with another woman and you not see a difference is a pretty good sign it’s not fungible.
I mean, if I replace all the ten dollar bills in your wallet with other ten dollar bills, you’re not going to care (beyond the fact that I apparently broke into your house and rifled through your wallet). If I replace your wife with someone else, you’re not going to go on with your day as normal — whereas if McDonald’s swaps out the person at the register right before you order, you’re not going to care (that service is fungible).Report
Oh and Jaybird: The fact that steetwalkers and call girls charge different prices is another good sign it’s not fungible. If it was, no one would use 3k a night call girls when they could get the same service for 50 bucks down the street.Report
While I, Jaybird, might be a horrid example when it comes to the irreplacibility of my thingy partners, it does seem to be the case that there are examples out there of people for whom thingy is, in fact, fungible. This seems to demonstrate that thingy is, in fact, fungible enough to be covered by, tah dah, interstate commerce.
I mean, presumably, if the guy who does provide a good example for these purposes who went to the parlor was unable to procure the services of this’un, he’d be able to procure the services of that’un. Fungible.
Now, I wish the world were not this way. There are a lot of things that I wish.Report
@morat20
Thrilling stuff, but we’re back to the point that the Constitution’s only limits on the Commerce Clause are “Commerce”, “Necessary and Proper” and “explicit things it’s forbidden in other places”.
Wrong. “Interstate” is an explicit limit on the Commerce Clause. That limit still exists in constitutional law today, even if much less constrained than in the past.
Now, the Constitution might be all “limited government” in theory, but where it got written down here for this case, the limits are pretty much not there. “necessary and proper” is about it.
Wrong. The limited list is in fact a limit.
that doesn’t change words on paper wherein you’re effectively saying “Despite what it SAYS, it’s different, because THEORY”.
Wrong. That’s utter nonsense. You’re the one propounding a theory that has no textual basis, which is why you will not find any scholars arguing it.
Madison ain’t the prophet of the Constitution
Wrong. He was one of the two primary advocates for a convention, he drafted the original plan that became the basis for discussion, he left us the most extensive set of notes from the convention debate, and he was one of the two main authors of the Federalist papers that explained and justified the Constitution. He really is taken by constitutional historians as the leading prophet of the Constitution.
and while the 10th Amendment is awesome, it’s not exactly applicable to the CC.
Wrong. The ICC (funny how you keep leaving out that key word) is but one of the delegated powers in Article 1, section 8, that set of limited powers to which the 10th refers.
I’ll point out Gibbons again: 35 years after the signing and the CC was used to regulate commerce that never left a state’s borders.
Wrong. Gibbons v. Ogden involved ferries operating between New York and New Jersey. Last time I checked, you can’t go from New York to New Jersey or vice versa without leaving one state’s borders.
There is so much just factually and historically wrong with your argument that it’s a bit overwhelming to try and respond to all of it.Report
How about things like the Commerce Clause where we argue about whether it is narrow or expansive?
Of course, it wasn’t just the Commerce Clause. The early years after ratification were filled with examples of the Founders, now members of Congress or President, stretching the hell out the “limited, enumerated powers” idea in all sorts of ways. IIRC, the strict constructionists of the time argued that the Postal Clause didn’t actually authorize the federal government to provide postal service, and for some years the Supreme Court agreed with them.Report
Actually, the key point of dispute was New York denying Gibbons landing rights without a New York permit. Landing rights in New York. Land which is, in fact, entirely in New York and not half in New Jersey.
The entirety of the case was about narrow versus broad definition of “commerce” (ie, the subject at hand): To wit: “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.”
Wickard wasn’t that far from Gibbons, because Wickard was mostly about quotas and partially about fungibility (if you grew past your quota, but didn’t sell, did that affect the market? Of course, everything you grew extra you didn’t need to buy off the market. Once you get past the oddity of growth quotas, it’s pretty straightforward).
You don’t get Wickard without Gibbons, and you certainly don’t get “Gibbons” from “limited federal government” because Gibbons was a Commerce Clause smack in the face to the States.
You lost this argument in 1824, effectively. By people who were ALIVE when the Constitution was being hammered out.Report
morat, not even the Obama Administration tried to use the argument you’re using now.Report
Seems weird to argue that Utah putting up roadblocks to prevent goods from coming in from Nevada can’t be “interstate commerce” because the roadblocks are entirely in Utah.Report
Gibbons. 1824. State regulating transit entirely inside it’s own borders. State lost.
Morat, you’re not doing yourself any favors by repeating something that is factually wrong, and instantly recognizable as such by everyone who actually has studied some constitutional law.
From the opinion, describing the facts of the case:
In no way can a boat running from Elizabethtown, New Jersey, and New York be understood to be operating entirely within one state’s waters. This is clearly an interstate commerce case, and the conclusion giving federal authority over licenses for this “coasting trade,” is an authority over moving interstate, not an authority over purely in-state waters.
More from the ruling, with pertinent points highlighted:
In other words, had the conflict in question related to the right to ferry service (which is what Gibbons was operating) on solely in-state waters (across a river at a point where the shore on each side was New York territory, for example, or up and down an in-state lake), Congress would have had no say.
I have never in my life heard someone make the argument you’re making about Gibbons. It’s fatally, fundamentally, flawed. Don’t take my word for it–read up on it on the internetz, pick up a copy of a caselaw textbook, ask a local law professor.Report
“There’s no legislative history suggesting that they wanted a power to regulate all commerce that had some faint affect on interstate transactions
Gibbons. 1824.”
I’ll gratuitously point out that you seem not to understand the term legislative history, either. Even were your inaccurate interpretation of Gibbons correct, it would be judicial history. And simply as a temporal matter, an interpretation that happens decades after the drafting cannot be part of that drafting process, so could in no way be part of the legislative history.Report
@morat20
That’s debatable, especially in light of Gibbons, which was in 1824.That’s debatable, especially in light of Gibbons, which was in 1824.
Unless you’re claiming that in a mere 35 years the meaning of ‘commerce’ radically changed from what the Founders intended.
First of all, I am not an original intent originalist. All I am doing is pointing out the meaning of terms as they were understood. “Intention” suggests applying those understandings to the outcomes of cases. I am not attempting to do that.
To your point about something “radically changing”, it was very well understood that “necessary” meant “necessary” when the Constitution was ratified. This is how the necessary and proper clause had to be sold to the those opposed to its ratification, especially in key states like New York and Virginia. By all means, go back to the notes to the ratification conventions and see for yourself. Again, and I keep repeating myself, why do you think we have a Bill of Rights and a Tenth Amendment?
Did that stop Marshall from greatly expanding the definition of necessary in McCullough v Maryland? No. I’m not surprised Marshall went there given his nationalist tendencies but that does not mean that the meaning changed. It means that Marshall, for his reasons, deviated away from the original meaning.
The same goes for the meaning of commerce in Gibbons v Ogden, which was not just a case involving intra-state commerce. It was a question of concurrent jurisdictions given that it was well understood that the federal government possessed jurisdiction over navigable waterways that crossed state lines. Marshall, Story, et al favored a broad reading. How does that prove history wrong?
If anything, having read Barnett’s book, I think he makes a pretty good case that if anyone was wrong, it was Marshall.
Are we really debating our history by using what Supreme Court justices said decades later to disprove what we can read for our own eyes? By the way, I don’t think Gibbons was that radical (although expanded) and the court never embraced his doctrine until well into the 1930’s.
Madison ain’t the prophet of the Constitution and while the 10th Amendment is awesome, it’s not exactly applicable to the CC. So again, we’re back to where we started: The CC is written very broadly with few limits, which is how it’s been applied. You think that’s wrong, because the Founding Fathers couldn’t have meant that despite that being what they wrote.
Please go read the notes to the various ratification debates and see what the opponents thought of the Constitution. Even after some of the delegates fought hard and pushed back against those that wanted to replace the Articles of Confederation with a wholly national government that would have completely absorbed the sovereignty of the states, the anti-Federalists STILL thought that the proposed Constitution gave the federal government too much power. They were less concerned about the meaning of the Commerce clause than they were the general welfare clause, the Supremacy Clause, Article III and the necessary and proper clause.
Some perspective is necessary. Not too long before this, the colonists declared their independence from the British Crown. They fought a bloody revolution to keep the sovereignty that they took back for themselves. Their very recent experiences with centralized rule made them extraordinarily distrustful about it, so much so that when a new Constitution was presented to the various states for ratification after the delegates had only been authorized to make changes to the Articles, it did not go over very well in some states, and getting those states to ratify was a fight.
That’s where the compromises took place. Morat, if you want to tell me that the people of Virginia and New York were just going to sit there and accept this and accept a federal government that they feared would rob them of their hard-earned sovereignty, then I think you and I have a completely different opinion of history.
I’m not looking to the intent of the Framers. I am looking at how the RATIFIERS in general, meaning those that debated the merits of the Constitution in the various state ratification conventions understood it. John Marshall was not the only person with an opinion on these matters and neither was Madison nor Hamilton.
Again, I’ll point out that the broad(er) version of commerce invoked by Chief Justice Marshall in his gibbons opinion never came to fruition until the 1930s. After Marshall’s tenure, the Court backed away from the Marshall/Story brand of nationalism and began to put more limits on federal power.Report
“praying an injunction to restrain the said Gibbons from using the said boats, or any other propelled by fire or steam, in navigating the waters within the territory of New York”.
The injunction Gibbons got? The one he sued over? Forbade him from sailing his boats in New York waters. Which, again, is entirely in New York.
“This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized “to make all laws which shall be necessary and proper” for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a “strict construction?”
followed by:
“The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling or of barter.”
and:
“It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.”
This whole “Narrow” versus “Broad” definition of commerce? The whole freakin’ Gibbons case turned on it, was expressly addressed by Marshall.
People point at Wickard and scream, but you’re really thinking Gibbons was wrong and Marshall didn’t know what the Constitution meant, because again:
“The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities”
See that bolded bit? That lost. They claimed navigation wasn’t commerce — the piloting of a boat wasn’t ‘commerce’ and the Federal government couldn’t regulate it.Report
You can argue Marshall was wrong until the cows come home, but he ain’t been overturned on McCullough or Gibbons and it’s been 200 years.
Barnett doesn’t even come CLOSE to making the case that we, today, somehow have a better idea of what the Founders “meant’ than Marshall. And again, you come to the point that you believe we deviated from the Founding Fathers on the CC 200 years ago and haven’t looked back.
You want to roll back 200 years of precedent, to return to a state that existed only until the very FIRST major case hit SCOTUS, in what amounted to a transition period between the Articles and the Constitution? When the still living Founding Fathers were moving directly away from that position?
Good luck with that. I guess “Founding Fathers, they had it right until they actually implemented it and totally hosed it up.” is an argument, just not a very convincing one.Report
That they ruled it was commerce doesn’t say or suggest that the “interstate” aspect of it was irrelevant.
Arguably, the interstate aspect of it is so obvious that it didn’t even really need to be ruled on.
Even then, they said “it does not extend to a commerce which is completely internal.”
I’m not sure how you can look at this and say thathey ruled that all pretty much all commerce (or economic activity or whatever) is interstate commerce.Report
The injunction Gibbons got? The one he sued over? Forbade him from sailing his boats in New York waters. Which, again, is entirely in New York.
Meaning he could not cross over into New York waters.
And you are ignoring the words in the decision that explicitly emphasize that the power does not touch purely internal commerce:
It is solely because those New York waters intersected with another state’s waters, and the regulation prevented crossing that line, that the federal power was relevant.
Where are you getting this idea that Gibbons was about regulating commerce on wholly internal waters? Is it just your own independent reading of the decision? Or do you have any expert source that supports your reading of it?
I do agree that Marshall read the term “commerce” more broadly than Ogden wanted him to, but even so it was not a very broad reading. Let’s keep in mind that Ogden’s lawyer was likely, as all lawyers do, looking for any argument that he hoped might work. But shipping goods or people across state lines, even the most anti-New Deal people I’ve known would agree that’s interstate commerce. Given that one of the primary stimulants for the Constitution was the desire to eliminate barriers to interstate trade, a contrary ruling in Gibbons would have undermined one of the primary goals of the document.
Constitutionally, the most significant element of Gibbons was its declaration that the power over interstate commerce was exclusive to Congress, and could not be exercised by the states concurrently.Report
@morat20 I’m actually pretty sympathetic to your general argument that the body of the Constitution itself (as opposed to the Bill of Rights and subsequent amendments) contains damn near limitless grants of powers to the federal government – I’ve argued as much in the past, and still think it’s probably the correct view on the whole, whether I like it or not. Certainly, that was the position of the anti-Federalists at the time, and that belief was a big part of why we wound up with a Bill of Rights.
However, you’re grossly over-reading Gibbons, which made pretty clear that, regardless of whether the Constitution as a whole gave the feds close to limitless power, the commerce clause specifically had limits, with the court saying:
“Comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce, to which the power was to be extended, would not have been made, had the intention [22 U.S. 1, 195] been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State. The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself.”
My emphasis.
Yes, Gibbons was in a sense about favoring a comparatively broad view of commerce over an absurdly narrow view of commerce. But primarily it was about what constitutes regulation of commerce “among” the States. New York was seeking to bar federal license-holders from using its rivers; the issue wasn’t that New York granted a monopoly over wholly in-state commerce so much as it was that it acted to undermine the feds’ ability to regulate commerce “among” the states.
Another way of looking at Gibbons is just to view it as saying that commerce “among” the states isn’t limited to two people exchanging goods while standing on opposite sides of a state border, but instead includes ensuring that people in Georgia could engage in trade with people in Massachusetts.
It most definitely does not stand for the view that all or nearly all commerce is interstate.Report
Yeah, I misremembered that. (I’m not sure what I was thinking of, probably some of the navigation specific stuff that isn’t commerce).
Which is why I moved to pointing out that Gibbons, a mere 35 years after the Constitution was ratified, had reiterate an expansive view of the Commerce Clause. Marshall was, in fact, pretty effusive over the fact that reducing commerce to the mere exchange of goods wasn’t gonna fly, and talked at length about how expansive commerce was and how broad the Federal government’s powers were.
The people complaining about the Commerce Clause being ‘too broad’ are really arguing Gibbons (which makes “Original Intent” a pretty bad argument, insofar as if Marshall doesn’t count when the issue first came up to SCOTUS then it’s just a game of pick a quote from a Founder and pretend he was King and wrote the Constitution by himself).
Wickard’s a side-show — honestly, it’s a good example of how a solid law in general can sometimes have weird results (nobody argues the wheat limits were unconstitutional, so the issue turned entirely on whether growing wheat for personal use impacted the market — which turned on whether wheat was fungible, which is a pretty obscure question that’s not gonna come up much) — compared to Gibbons, which flatly rejected the ‘limited view of commerce’.
Marshall had a change to limit the definition of commerce, to suit the states and ‘limited federal government’ and he went balls-to-the-walls opposite of that.
It’s been 200 years. If Marshall didn’t grasp original intent, we’re certaintly not going to.Report
Yeah, I misremembered that.
Hooray.
Which is why I moved to pointing out that Gibbons, a mere 35 years after the Constitution was ratified, had reiterate an expansive view of the Commerce Clause.
Only expansive compared to what Ogdens’ lawyer wanted. The very first impulse for amending the Articles came from nabigation conflicts. Specifically, Madisin and Hamilton were visiting Mt. Vernon while VA and MD were there negotiating issues of navigation on the Potomac. The Gibbons v. Ogden issue is right in the bullseye of what Madison and Hamilton were targeting with their push for constitutional change, so it wasn’t that expansive to interpret navigation/shipping as commerce.
Of course Ogden wanted it more narrowly defined, but that was a legal strategy to protect his business interests, not the common understanding of the meaning of the ICC.
The people complaining about the Commerce Clause being ‘too broad’ are really arguing Gibbons
No, they agree with Gibbons. Wickard was a substantive step beyond. Whether one thinks it was right or not, given that Wickard’s wheat never crossed state lines, the constitutional logic is different than Gibbons.Report
@saul-degraw
How is that an example of something that doesn’t fall under the commerce clause? I had thought the “dormant commerce clause” was the idea that states couldn’t interfere with interstate commerce because of the awake commerce clause.Report
Gabriel,
Saul got that wrong, or else I’ve misunderstood him. In Philadelphia v. New Jersey the Court ruled that states could not discriminate against out-of-state garbage.
I’m familiar with that one because I live in Michigan, which has an on-going self-pity-fest about out-of-state garbage, including out-of-country garbage from Ontario. They had also tried to discriminate, by having higher dumping (“tipping”) fees for non-Michigan garbage. They lost in federal court, iirc, and based on the Philly v. NJ decision gave up their fight.Report
@james-hanley @morat20 @jaybird
It’s not a general police power or an overturning of the concept of enumeration of powers if in fact everything but the fewer than five things @jaybird asks for are in fact interstate commerce. It doesn’t indicate that a formal police power has been granted or that a formal shift in constitutional structure has occurred if everything turns out to be interstate commerce, or if the Congress is justifying exercises of power by claiing they are regulating according to an enumerated power. Instead, by justifying the exercises that way, they are affirming that structure and claiming no general police power.
to the extent there is a problem, @jaybird states it correctly: if too many things are commerce among the states under the current law/precedent, then that phrase is being interpreted too broadly as a substantive matter. It’s that simple. I think the phrase should have some limiting meaning, so I can’t really disagree that if fewer than five things aren’t interstate commerce, then the phrase may be being interpreted too broadly. but I don’t think it’s crazy to ask why it necessarily is. It’s not inconceivable that in practice at some point through economic development the set [not commerce among the several states] becomes a null set. If it becomes a null set, it’s not the case that this means that a general police power has been granted or that a revolution in constitutional structure has taken place. It’s when Congress says, “We have power to regulate irrespective of whether the power flows from a grant in Article I” that those things may have taken place.Report
As an aside, given that Marshall was a staunch Federalist, with as vigorous a belief as Hamilton had in making the federal government as strong as possible, it’s kind of surprising the Gibbons decision was as limited as it was. Marshall settled for ruling against state’s authority to concurrently regulate interstate commerce, leaving the federal government unchallenged in that arena, but was surprisingly (I think) explicit about the limits on federal power. He could, theoretically, have gone on to say that any in-state activities that ultimately end up passing across state lines are interstate commerce, as is the rule today, but he passed up this opportunity to further promote federal power.
Given that it’s said he could win any argument if you ever granted a single one of his premises, one has to think he might have been able to do so fairly persuasively. I’m not sure why he wouldn’t have, other than that such a claim went too far even for him, or at least beyond what he thought he could get to fly. That’s speculative, of course, but given his relentless drive to justify expansive government power, I’m not sure why else he wouldn’t have done so.Report
I’m not sure why he wouldn’t have
I recommend that people read Part 1 of that dog’s dinner known as Making Our Democracy Work by Stephen Breyer for insight into possible answers to this.Report
I found Active Liberty so bad I’d be hard pressed to accept anything Breyer wrote. Your calling the other book a dog’s dinner doesn’t increase my confidence, either. 😉 I mean, I might take a look, but only if you swear or affirm (solemnly, and with no crossed fingers) that on that particular issue Breyer isn’t full of it.Report
We already have gone through this. I was recalling what you called the book before there, though now that you mention it it was probably Active Liberty you called that (or something much like it). I’m not (here) recommending the later book in general (though I do recommend it), but instead saying that I think that part of it (Part 1) potentially speaks to your question about why Marshall would not have gone further in defining the federal commerce power even if he believed it should reach more activity than was presented in Ogden. Namely, that Marshall was acutely aware of the Court’s limited writ at that time (it’s much stronger an more legitimate now), and may have been husbanding its authority. Of course, it’s also entirely possible that he was simply stating his real views on the power in Ogden.
And, knowing your view of Breyer, I didn’t direct the rec to you, but to those of your readers whose interest your question may may have piqued.Report
that Marshall was acutely aware of the Court’s limited writ at that time (it’s much stronger an more legitimate now), and may have been husbanding its authority
That’s likely. He was very strategic. He initiated judicial review in a case where the Court couldn’t be defied because he didn’t order the exec to do anything, then never used it again in his long tenure content to set the precedent.
That “winging it” thread the other day, with its references to “competency porn”? I think Marshall was the real deal.Report
@morat20
By chance, have you ever delved into the notes from any of the ratification debates? Your arguments are so ahistorical that my suspicion is that you haven’t.
You can argue Marshall was wrong until the cows come home, but he ain’t been overturned on McCullough or Gibbons and it’s been 200 years.
It bears repeating – whatever Marshall did in those cases, it took well into the 20th Century, I’d say 1937 to be exact, for the view you ascribe to those cases to come to complete fruition. As I said before, the Taney court backed away from Marshall’s staunch nationalism and took more of a federalism approach.
The Progressive legal scholars leaned heavily on Marshall’s jurisprudence for influence but it still took decades to get the Supreme Court to come around. If you want to talk about 200 years, that’s fine but I can just as easily say that no one that succeeded Marshall on the court had any interest in carrying his jurisprudence any further than he did. This took place for the better part of 100 years. Cases you seem to think are a slam dunk under Marshall’s jurisprudence went the other way (exceeded commerce power in many of those cases), including a number of New Deal programs. Care to venture a guess why?
Barnett doesn’t even come CLOSE to making the case that we, today, somehow have a better idea of what the Founders “meant’ than Marshall.
First that is your unsubstantiated opinion and second, I find it funny that you find it appropriate to lecture us on the fact that Madison isn’t a prophet yet here you are worshiping at the altar of Chief Justice Marshall in a rather amusing fashion.
If you’ve actually read Barnett, you’ll notice that Barnett is seeking the original meaning by understanding the term as it was understood by the public back then. As a historical matter, while Chief Justice Marshall has an opinion, it does not follow that a single opinion is definitive. People like Barnett, Natelson, Balkin and other people that have sifted through the historical record need to answer this question by finding as many references to the terms as possible.
If the public meaning is one thing and Marshall thinks it’s another, guess what? He’s wrong. Period. How and why we got to decisions like McCullough and Gibbons is a whole other discussion (one that discusses the proper methods of interpretation), but since you seem content with Marshall’s jurisprudence, probably because it fits your worldview, I’ll respectfully pass on that one.
And again, you come to the point that you believe we deviated from the Founding Fathers on the CC 200 years ago and haven’t looked back.
The entire scope and nature of the Constitution changed over the last 200 plus years. There were three major moments. The first was the Bill of Rights, the second was the reconstruction amendments. The third was the New Deal. Having read several very interesting books on the subject, as I mentioned to Saul (I think), the reasons for this can’t be boiled down to talking points. Doctrines changed. The view of law changed. The people changed. The state of the world changed. I probably get it just as well if not better than you do. Legal realism largely replaced legal formalism. Economic conditions were no longer what they were in an agrarian economy. Manufacturing, labor and commerce were so intertwined that attempting to carve out commerce from this was becoming problematic. Most importantly, the people themselves were looking to the federal government to deal with the misery caused by the Great Depression.
You want to roll back 200 years of precedent, to return to a state that existed only until the very FIRST major case hit SCOTUS, in what amounted to a transition period between the Articles and the Constitution? When the still living Founding Fathers were moving directly away from that position?
I’m sorry if my countering your arguments with historical facts is somehow causing a disagreement with your worldview. I’m sorry that that anti-Federalists threw a bit of cold water on the nationalist ambitions of Hamilton and Marshall, but they did. I’m sorry that a Bill of Rights was ratified with two key provisions that were specifically geared towards limiting the power of the federal government (Amendments 9 and 10).
Feel free to disagree with my positions. That’s fine. What I don’t understand is how the hell you came up with the conclusion that I would want to roll back 200 plus years of jurisprudence simply because I disagree with you and 2 of Marshall’s decisions.
Seriously. The kinds of people you speak of are the kinds of people I’ve beaten bloody in debates on topics ranging from the separation of church and state to gay marriage (which I think CAN be supported on originalist grounds by the way). How the fish can you attribute my views to someone like Clarence Thomas simply based on a historical inquiry?
I’m going to give you the benefit of the doubt and assume it was something I said somewhere. I’m sure you’ll be glad to point it out to me, and if you can’t find where I made that insinuation, you’ll do the right thing and admit what would be an egregious error on your part.
Good luck with that. I guess “Founding Fathers, they had it right until they actually implemented it and totally hosed it up.” is an argument, just not a very convincing one.
I’m sure you won’t be surprised if I don’t find your theories awe-inspiring.Report
@dave
because I disagree with you and 2 of Marshall’s decisions.
Do you disagree with Gibbons v. Ogden? That one seems a nearly inescapable conclusion of the Interstate Commerce Clause to me.
As I noted above, it was a conflict over navigation* that first got Madison and Hamilton talking about the need for changes in the Articles. And while it was not necessarily inevitable that concurrent regulation of interstate commerce be completely rejected, if the Supremacy Clause meant anything, it would mean that federal regulation of interstate commerce would trump any conflicting state regulations, and since Ogden’s NY charter conflicted with Gibbons’ federal one, Ogden’s had to fall.
*Virginia’s royal charter granted them possession of the whole Potomac, so even though the river formed a border with Maryland, Maryland ships had to pay navigation fees to VA, just to go upstream along their own coast to their own ports. They and VA had delegates at Mt. Vernon to discuss this, Hamilton was there to visit his old boss, and Madison was there because his mentor Jefferson told him that to be anybody in VA politics he needed to know Washington. As Hamilton and Madison discussed the VA-MD conflict, they agreed it was just one of a larger set of similar conflicts between the states.Report
@james-hanley
Good catch. I have no problem with the decision in Gibbons but I did think that Marshall’s construction of the commerce clause was a bit broad with regard to the “among several states” part which I read him to mean “more states than one”. I’d have to go back to the language in the opinion, which I can’t do at this second.
I think the assertion of exclusive jurisdiction and the lack of concurrent power is understandable as well.Report
My claim of inevitability was probably an overstatement, though. As I dropped my kid off at school and went to Tim Hortons for my coffee and donut, I was pondering this.
Given how new and still fragile the union was, and given how much serious opposition to the Constitution existed, and how untested the Constitution was, and how little authoritative interpretation it had so far received, the ruling against concurrent regulatory power wasn’t truly inevitable at the time, even though I think it was clearly the right conclusion from both the perspective of the text and the intent of the convention.
Consider that the presidential election of1800 was a hotly contested rematch of the 1796 election, this time with Jefferson defeating Adams. Jefferson was pretty much an anti-federalist who’d been brought to grudging acceptance of the Constitution by his mentee Madison, but who still bitterly opposed the nationalist visions of Adams and Hamilton.
Chief Justice Ellsworth, a Federalist moderate enough to be viewed with favor by John Calhoun, had resigned due to poor health. A lame-duck John Adams tried to appoint John Jay to serve again as Chief Justice, and received Jay’s letter declining the offer on January 20, leaving Adams just over a month to get the office filled so Jefferson wouldn’t get to choose the CJ. So he offered it to Marshall, but at first the Senate did not want to confirm him, but then agreed out of fear of not getting a desirable candidate approved in time. The Federalists controlled the Senate, and not only was the incoming president–Jefferson–a Democratic-Republican, but the Federalists were losing their grip on the Senate (they began the session of Congress with a majority, but substantially diminished, and ended it as the minority).
Marshall, of course, was determined to help the Federal government become a stronger, more effective entity than the Congress of the Articles had been. And Jefferson staunchly opposed him. Had Ellsworth stuck around a little longer, giving Jefferson the chance to appoint the CJ, it’s not inconceivable that his appointee would have taken the chance to boost state power by approving concurrent regulation of interstate commerce, even if only in cases where the state regulation did not too heavily interfere with the federal regulation of it.
The nature and future of the union was so unsettled at the time, it’s hard to say what would have followed from that. But the casebooks all call Marshall’s ruling in Gibbons “expansive,” and I think that’s the sense in which they mean it. Obviously not that it reached out to the New Deal Court’s level of expansiveness, but that when the bounds of federal power were so unsettled, and under an Democratic-Republican CJ it could have gone the other way, Marshall chose the reading that enhanced federal power vis a vis the states, rather than the reverse.Report
I’ve had my students — graduate students, going for master’s degrees — say with not only a completely straight face but with the sobriety appropriate to someone Proclaiming An Important Truth that “The Constitution comes from God, and it says that we have inalienable rights of life, liberty, and the pursuit of happiness, so it’s immoral for one person to interfere with someone else’s pursuit of happiness.”Report
Do you teach at a religious institution?Report
No, he just teaches in a region with a lot of religious conservatives.
That’s my wager, anyway. You should go down there for a visit sometime, Saul; it’s the perfect getaway spot for a NY/SF liberal. [Note: Do. Not. Take. Hanley’s. Advice. Ever.]Report
@james-hanley is right. Well, about my region of California. If you do come down and visit, though, @saul-degraw , you must let me know beforehand so Natasha and I can entertain you while you are here.Report
I used to get frustrated with OTB’s Steven Taylor because he seemed to constantly writing lecturey rebuttals to things almost nobody within the OTB community actually believes. Then I remembered that he teaches at a second-tier college in Alabama, and that helped put his seeming regular state of exasperation in perspective.
(I probably shouldn’t say this out loud, in case I actually end up enrolled in said college, which could happen.)Report
Weird. Not that I spend much time thinking about the Hellhole That is Everything South of Fresno, but I thought the coastal area was pretty liberal these days, and you had to go pretty far east before things got conservative.Report
@mike-schilling
Coastal? As Johanna, who’s from not far away from there, just said, “not unless you count the desert as a beach.”
I think you have to cross two mountain ranges to get to the coast from Burt’s town.Report
Burt must not live where I thought he did. Never mind.Report
The Tea Party, as politicians are really just Republicans with a different brand of toilet paper in their bathrooms.
And the Tea Party of the populace are as accurate in their historical documents as they are in their Christianism.
I’m left wondering where’s Waldo; totally unsure who we’re discussing, and I think perhaps someone’s trying to link Tea Party and Libertarian? To suggest the Tea Party’s roots are libertarian?
Similar phrases used.
But we’ll see if the same words ring with different meanings; I don’t think the GOP establishment (which includes most of the Tea Party politicians) embraces Rand Paul. And I won’t mind at all if the Libertarians attract some of the GOP voters away.
But mostly, I think the whole Tea Party thing is just people not wanting to admit they’re Republicans because Republicans screwed things up so badly while Bush and Cheney were in office. They’ll get over it soon. It’s pretty much like the way Democrats started using “progressive” when of ‘liberal’ was a four-letter word.
So go Libertarians.Report
zic: “The Tea Party, as politicians are really just Republicans with a different brand of toilet paper in their bathrooms.”
They’re worse, which is frightening – a devolution in action.Report
BTW, I always thought that attending protests in costume as kind of silly. What are those tricorner hats supposed to do to help convince me that there argument is correct?Report
How many times do people not employed by Colonial Williamsburg get to where 18th century garb? Revolutionary cosplay opportunities are far and in-between.
The costumes are just evidence for my idea that the Tea Party fetishize the Constitution in the way that people not affiliated with the Tea Party do not.Report
I think it goes beyond that and is an unconscious manifestation (or perhaps a conscious manifestation) of Corey Robin’s idea that conservatism/reactionaryism is all about preserving the privilege/power of the few and denying it for the many. It harkens back to the early days of the Republic before there was even universal male franchise and when you needed a certain amount of property to vote. Their ideas on the 14th Amendment also confirm this for me.
It also allows them to engage in the yeoman fantasy that I think infects a lot of modern conservatism. They seem to think that there was a time when most of us lived as self-sufficient or almost self-sufficient farmer-craftsmen and there was no need for a large government. Of course they don’t realize that this was untrue and also for a pre-Industrial economy.Report
BTW, I always thought that attending protests in costume as kind of silly.
That’s the point. If you’ve ever attended a major protest you’ll know that they are super boring. You’re basically spending hours in crowd of people who either largely agree with you, or only care about their own marginal pet-cause. Costumes, drum-circles, silly rhyming chants, weird signs are all there to primarily draw in media attention, but also to just liven up the protest itself. Modern day protests are basically just networking events – what pithy protest sign would convince you on the argument anyway – so anything to help pass the time is encouraged in my book.Report
Unless you’re cosplaying as Captain Jack Sparrow, wearing that hat is completely lame.Report
That description recalls to mind the left’s protests of Jean Kirkpatrick when she came to speak at my university. “Jean Kirkpatrick is the contra queen” they shouted as they danced around in a circle waving banners and signs, banging their drums.Report
@saul-degraw
The thing that really gets me about it is that there’s nothing particular to the Founding Fathers about tricorner hats and powdered wigs – everyone of means dressed like that back then, including the Loyalists.
To mean, it suggests a cargo cult mentality whereby people adopt the trappings of people they admire, instead of engaging with their ideas. It’s not politics it’s cosplay.Report
It might be cosplay but it is a form of cosplay that gets substantial political results.Report
Pff..
That’s not the kind of cosplay that gets my attention. 🙂Report
What if it was a good looking women in a sexy version of 18th century cosplay?Report
I’m kinda surprised Fox News hasn’t already gone there.Report
It’s magical thinking: symbol = reality.
For instance, flag = country = patriotism = good moral intent = good moral action.
So, tricorner hat = faith to the spirit of the Founders/Framers = moral superiority.Report
I look good in a corset thank you very much.Report
@leeesq
I’m having trouble with “18th century” and “sexy” used in the same sentence. 🙂Report
I think the male corset is usually referred to as a garter belt.Report
Berger completely rejected incorporation of the Bill of Rights and would have rejected Epstein’s views given that he criticized the Supreme Court for meddling in the economic affairs of the states.
I always thought it was amazing how many people on the right seem to have a problem with incorporation.
Uh, guys? You do realize that without incorporation, there’s no second amendment restricting the states? They could just completely and utterly outlaw all guns.
Some of the right will point out state constitutions often protect gun rights, except, uh, state constitutions are often trivial to change. So good luck with that protection hanging around.
And they’re often making too many assumptions about state constitutions anyway. My state of Georgia, for example, says ‘The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.’. So, uh, there’s not actually a right to bear arms…there is one in theory, but the legislature can make up any rules it wants about it. (I.e., you can only bear arms unloaded and disassembled, locked inside gun cabinets. Or, more likely, just not letting people bear them in public except in designated areas.)
Of course, I’ve made the argument that the second amendment shouldn’t be subject to incorporation anyway, as the purpose of it actually is to stop the Federal government from disarming the state militias, and hence it’s entirely nonsensical to try to apply it to states. But that’s an entirely different subject.
But it’s funny to see the right just completely overlook how the second amendment works, and ignore the fact that most proposed gun laws they have issues with are state laws.Report
Can someone point me to an example of a Tea Partier quoting the Constitution. I constantly here them invoking the Constitution, but I can’t recall ever hearing them cite any of its provisions.Report
If I recall, McDonald was decided on due process grounds, not 14th amendment grounds. Many wanted it decided on 14th amendment grounds & felt the court punted rather than reverse itself from a previous decision (Dread Scott, I think).
Or am I getting that wrong? It’s late & it’s been a long day.Report
@mad-rocket-scientist
You are right and wrong. Incorporation is done via the Due Process clause of the 14th Amendment. Due Process is mentioned twice in the Constitution. Hugo Black used this to create the idea of incorporation.Report
@saul-degraw
Thanks. I looked it up. The desire was for the court to overturn the Slaughter-House decision, but instead it incorporated on Due process grounds.Report
All this is okay, because it’s the sovereign state of Georgia doing it (not coincidentally while a Republican is governor) and not the subordinate federal government.Report
Of course it’s sovereign. Sovereignty is indivisible. To divide is to destroy. You may as well be speaking about half a square or half a triangle.
Either the states kept their sovereignty when they ratified the Constitution or they transferred it en toto to the national government. Which is it? Huh…huh?Report
Oh, please. It’s a compact between the states. So unless the states collectively and individually specifically delegated their power to the federal government, they retain those powers. I thought you linked to the King of the Amendments in the OP.
(I notice that the last clause of the Tenth Amendment applies with particular force when a sufficient number of the state’s elected officers are Democrats.)Report
@burt-likko
You have learned well wise one. Don’t forget that the reserved power to decide whether to alter, amend or abolish remains with the sovereign states.
I should probably stop joking in case someone finds this discussion, takes it seriously and tries to get into a debate over the nature of the union. I’ll give someone a gold star if they recognize that the “half a triangle” line is from John Calhoun’s Discourse on the Constitution. 😉
Needless to say, I greatly enjoy cracking these kinds of jokes together…and no talk of divided sovereignty per the commenting policy.Report
“Either the states kept their sovereignty when they ratified the Constitution or they transferred it en toto to the national government. Which is it? Huh…huh?”
I think you might have a false dichotomy there, Dave.
A sovereign state can make an agreement with another sovereign state. Georgia can’t make an international agreement with France. They pretty specifically signed away that authority when they ratified the Constitution. A sovereign state can make an economic pact with another sovereign state regarding trade. They pretty specifically signed that one away, too.Report
@patrick
I think you might have a false dichotomy there, Dave.
I can’t claim ownership to this but yes it is a false dichotomy and one with a pretty substantial history behind it. If you read any intellectual defense of the Constitution as a compact amongst sovereign states, the argument is ALWAYS made against a nationalist theory that assumes that the sovereignty of the states was transferred to the national government.
The reason this happened was that supporters of the compact theory made an a priori assumption about the nature of sovereignty – that sovereignty is an indivisible unit. It’s so assumed that it’s not intellectually defended. When Tom Woods wrote his book on Nullification, he defended the compact theory using the same compact theory vs. nationalist theory used by people in the 19th Century including John Taylor of Caroline, Abel Upshur and John C. Calhoun, among others. He spends less than a paragraph discussing sovereignty.
John Taylor of Caroline defended the indivisibility of sovereignty at great length in his New Views on the Constitution, an interesting historical treatise on the states rights view of the Constitution.
The problem with the view is, as you said, if sovereignty remains indivisible, then only two things could have happened when the states ratified the Constitution. The states either retained 100% of their sovereignty (compact theory) or transferred 100% of their sovereignty to the new government (nationalist/consolidationist). The latter is so absurd that it can be eliminated before any argument is made in support of the former.
This is how the states rights advocates advanced their arguments. The debate over the nature of the federal union was no longer based on a historical inquiry but rather a metaphysical concept of sovereignty. Any form of Constitution based on divided sovereignty was eliminated from consideration not because the Framers DIDN’T intend on dividing sovereignty (it was understood that this is exactly what happened), but rather that the Framers COULD NOT divide sovereignty because it was a metaphysical impossibility. James Madison would have none of this and he categorically rejected this view of sovereignty when he rejected Calhoun’s doctrine of nullification in the early 1830’s.
That said…
A sovereign state can make an agreement with another sovereign state. Georgia can’t make an international agreement with France. They pretty specifically signed away that authority when they ratified the Constitution. A sovereign state can make an economic pact with another sovereign state regarding trade. They pretty specifically signed that one away, too.
Sovereign states can enter into alliances with one another and delegate sovereign powers to an agent to execute them on its behalf. It’s not the same thing as signing away one’s sovereignty because under an alliance situation, any party to it, as a sovereign state, can exit at any time meaning they can resume those powers.
Personally, and some people may disagree, this is how I view the federal government as it existed under the Articles of Confederation. Given that there was absolutely no way for a federal power to force states to comply, it was effectively a weak league of states that could have left at any time.
Still, it’s a false dichotomy.Report
@davidtc
Uh, guys? You do realize that without incorporation, there’s no second amendment restricting the states? They could just completely and utterly outlaw all guns.
If I had to guess, people that hold these views are largely in red states that either protect the right to bear arms in their state constitutions or have politicians that know they’d get their asses thrown out of office or worse if they attempted to over-regulate firearms.
There are quite a few people that understand how states can violate the rights of citizens but will argue that it pales in comparison to the violations of rights done by central governments. At least they are consistent.
I’m aware of what you said after the fact but the idea that those protections will only stay in place if there is federal protection of those rights is a bit of a stretch.
But it’s funny to see the right just completely overlook how the second amendment works, and ignore the fact that most proposed gun laws they have issues with are state laws.
I’ve been meaning to write a post about the modern nullification movement but it seems that if you see what they’re trying to do, they’re trying to pass resolutions preventing state officials from cooperating with the enforcement of federal gun laws in their states. That tells me the problems aren’t with the states.Report
So while we’re on the subject of constitutional interpretation, something occurred to me yesterday. If you go the route of original intent, then there’s ample historical evidence to indicate that the 2nd amendment was about collective defense while avoiding a standing army. To get an individual right you have to disregard the prefatory clause along strict constructionist lines. BUT, if you do that then you’re stuck with the commerce clause enabling the feds to do almost anything they like that’s not expressly prohibited. You have to use original intent to limit it to preventing trade wars between the states.
So a consistent interpretive philosophy is problematic no matter who you are.Report
Actually, I’d prefer that sort of interpretation if I had my ideological druthers.Report
Which, @murali , original intent or strict construction?Report
Even though I think Original Intent is for other reasons bad interpretive strategy, its use in this case gives me results that I am happier with.Report
Mmm… okay. I’m a bit bemused that your preference is based on it giving you the outcome you like. Sounds like you’re slipping into “living constitution” territory there.Report
No, I don’t actually prefer original intent as an interpretive method. And I certainly don’t think that we should necessarily be interpreting the law in such a way that it lines up with our ideological presuppositions. All I’m saying is that while in America, there are two teams one of which prefers more guns and fewer regulations and another which prefers the opposite, I prefer fewer guns and fewer economic regulations and if I were the sort of guy to choose an interpretive scheme to suit my ideological preferences original intent would be what I would choose when just looking at this pair of outcomes.
That said, judges should avoid interpreting the law in ways that suit their ideological preferences as far as possible. The best way is to use the most recent use of terms as constraining current use. This does create a sort of living constitutionalism (sort of like the telephone game effect), but that is not a problem. Laws are still predictable and prospective. As long as we keep to the most recent meaning, we can in at least some limited sense pin down a range of what a judge will say on the issue. For example, now the interstate clause is broadly interpreted. So, we know that few economic regulations will be found unconstitutional. Even if I think that things will overall be better if more regulations were struck down, the predictability of the rule of law trumps substantive considerations.Report
Well, although I am inclined to agree with you, @murali and @road-scholar , you must admit that the originalists have a point of some intellectual heft when they say that the proper way to interpret a word or phrase is with the meaning that was understood at the time that word or phrase was adopted into the Constitution by the people who did the ratification.
Disposing of that argument requires delving further into the issues that a) that understanding is difficult, if not impossible, given the large number of people involved in ratification, b) the authors of ambiguous words or phrases deliberately chose phrases with ambiguity in mind so as to broaden the political appeal of the document for which they sought political approval as evidenced by, inter alia, squabbles arising almost instantly after ratification about the meaning of things like “judicial power” and “supreme law of the land”, and c) the Framers, particularly the original Framers, were intentionally assuming a posture of modesty about future problems, future technologies, and future political decisions.
Tea Party constitutionalism (as opposed to Epstein’s) must allow little if any room for ambiguity of this nature, or for the sort of modesty about the wisdom of future policies that the Framers themselves held.Report
You must admit that the originalists have a point of some intellectual heft when they say that the proper way to interpret a word or phrase is with the meaning that was understood at the time that word or phrase was adopted into the Constitution by the people who did the ratification.
I dunno about this one, Burt.
I mean, if you apply it consistently and all, it’s a usable framework, sure. But one can make the counterargument that since the document in question is capable of being amended using a known process, there’s no real reason to default to trying to go two hundred years in the past (plus more in many cases) to attempt to discern “original intent”. We define the words as what they mean today, and if we don’t like the outcome, then the right thing to do is amend/update the document.
Your two choices are update your legal document periodically or attempt to freeze meaning in linguistics. The second one is by and large completely impossible, particularly if you want the law to have any meaning for the average Jane or Joe walking around on the street… and I’d definitely argue that of all of the intentions of the Founders, having the law be accessible was one they’d all get behind. Logically, then, the right course would be to amend the document.
“Cruel and Unusual” is sufficiently vague that one can argue that it was intentionally vague, rather than using a finite list of things that they regarded as “Cruel and Unusual”.Report
There is something quite strange about being governed by a document written by a bunch of landed gentry more than 200 years ago, in a time and political context very different from our own, and being restricted to what they thought it meant in that time and political context. Putting aside the dependency of meaning on context, and the evolution of meaning over time, that just seems like a pretty alienating approach to governance. Don’t get me wrong, if you’re going to have a constituting document, I think there needs to be some way of coming up with an agreed upon meaning for the words it uses, but “This is what these dead guys who had no concept of 21st century life and politics meant when they wrote it” just seems like the wrong way to go about it.Report
We define the words as what they mean today, and if we don’t like the outcome, then the right thing to do is amend/update the document.
If you do that too loosely, then it’s not really a constitution, is it?
One of the criticisms of many state constitutions is that they can be amended by a simple majority vote, which really just makes them glorified statutes.
Or, if we take your approach without sufficient caution, we really can decide that Obama is an illegitimate president because he’s not a natural born citizen.
To some extent, this updating is obviously unavoidable. Even Scalia explicitly gives in to it from time to time. But there should be a presumption of great caution about it, I think.
As Chris says, it is weird to be governed by a two century old document written by a bunch of landed gentry who could not have conceived of a fully industrialized economy and a politics of mass communication democracy. But they did give us a means to change it, and if we find that means too restrictive in general, we can change the means, given sufficient will. As far as I know, there’s never been a serious effort toward doing so, which suggests that despite our complaints, there’s not much will for actually making it easier to change.
I think part of the reason is that we fear the changes others might like. But then, is making it yet easier to change really a logical solution? I’m afraid of making it a little bit easier to change, but I’m enthusiastic about making it a lot easier to change?Report
@chris
“This is what these dead guys who had no concept of 21st century life and politics meant when they wrote it” just seems like the wrong way to go about it.
I think that’s why it makes sense to have a “purpose” originalism, as opposed to a textual originalism. E.g., Randy Barnett’s claim that the original purpose was to ensure liberty, so we should read it with a presumption of liberty. Or one could read it as having a primary purpose of general welfare, and read it with that presumption (I’m less persuaded that could be as reasonably argued, but I want to make a general point, not just plump Barnett’s approach).
Then, instead of the dubious task of trying to figure out just what the words meant back then, or assuming some kind of spurious agreement among the Framers about the boundaries of each clause, we interpret the words with an eye toward whether they promote that purpose or not.
Not that this approach would readily resolve all questions, but it provides a more principled approach than treating the Constitution like statutory law, and allows us to take the Framers seriously without being pedantically constrained by them.Report
But one can make the counterargument that since the document in question is capable of being amended using a known process…
But a process that is so onerous that after the first ten, it’s only managed to be done 17 times (15 net if you don’t count prohibition) in over 200 years. It took 600,000+ deaths to set up the conditions under which the 13th-15th could be passed. Except for that group, most amendments have been tinkering around the edges. In the last 50 years, only three amendments (a) tidying up succession, (b) mildly extending the franchise, and (c) when Congressional pay raises take effect. This despite enormous societal changes.
Heck, it takes fewer states to call a convention to rewrite the whole thing than it takes states to approve an amendment. I, for one, don’t think that was an accident. The message is “Amendments are for tinkering; once this baby’s dated enough, get together and rewrite something more appropriate for your times.”Report
I *FULLY* support the idea that we rewrite the Constitution from scratch every Generation.
Of course, if we pull the whole “living” document even yet, it’ll probably do more harm than good.Report
A constitution written from scratch in late 2001 early 2002 would be one fugly mama jama of a constitution. Well at least coming from my own biases, but it would have made the whole torture and forever war thing a lot simpler and easier.Report
@james-hanley
But they did give us a means to change it, and if we find that means too restrictive in general, we can change the means, given sufficient will. As far as I know, there’s never been a serious effort toward doing so, which suggests that despite our complaints, there’s not much will for actually making it easier to change.
My observation?
I think the reason why the amendment process has tapered off is because the living constitutionalists have been a voice for a while.
Ultimately, the relationship between the citizenry and the law that governs them is a dynamic, I think we’d all agree. Provided there is enough general consensus that the law is working according to the perceived needs of the general consensus, the particulars don’t really bother anybody overmuch (at least, anybody who isn’t a lawyer or a crazy politico-minded nut, like us guys and gals here).
If you took a strict constructionist approach and that strict constructionist approach held six young seats at SCOTUS, you might wind up with not much legislation getting passed and upheld for a long while, and people would respond to that one way or the other. Maybe the amendment process wouldn’t be quite so onerous. Maybe we’d have a Convention. I don’t know for certain.
But the point here is that there’s no way of saying “legal language ought to be considered immutable, the document should be changed if the common parlance varies too far from the document” is a better or worse (or more intellectually rigorous) approach than “legal language ought not to be considered immutable, if you find that your classic interpretation is too out of bounds with common parlance, you should be the one to undergo the amendment process”.
Either way, there’s a burden of proof, both sides are just trying to get the other side to commit to accepting it. You think Cruel and Unusual means X, I think it means Y, the current interpretation of the courts is Y’ or X’, whoever wants to make the change happen is the one that is really going to have to do the work. Just saying, “my definition is closer to the correct one” is playing the cheater’s game, iff’n you ask me.
On the other hand, we’ve picked up enough cruft since 1215 that maybe the occasional reboot is better than patching the system while it is running.Report
The highest values devalue themselves.
Especially when you put them in stone or behind bulletproof glass.*
*This part is not Nietzsche.Report
@michael-cain – 15 net if you don’t count prohibition
Why would you want to do that? Prohibition shows that (almost) within living memory, the process could be used to A.) get something done and B.) Get it UNDONE when it’s clear we’ve made a huge mistake.
@greginak – that is a terrifying alternate history novel setup. We’re having a hard enough time course-correcting now.Report
The lesson I learn from prohibition is that it takes a decades-long political movement to create change, and then an exceptionally bloody, incredibly expensive nation-wide crime spree to realize we made a mistake and reverse that change. One point for the system!Report
It’s too bad that the War On Drugs didn’t need an amendment. We could have put this crap to rest sometime around Reagan.Report
Alcohol Prohibition –> repeal: 13 years.
Drug Prohibition –> repeal, or even significant positive modifications: ??
I’d say the Amendment process has a lot going for it in that respect, in that Alcohol Prohibition took longer to implement, and less time to reverse.Report
I think the reason why the amendment process has tapered off is because the living constitutionalists have been a voice for a while.
Agreed. Because it is easier to load up the Supreme Court and get it to interpret the Constitution the way you want than to get an amendment done. Regardless of which way you want to move things. Abortion is a good example. Liberals got a SCOTUS opinion that made it impossible for states to ban many abortions; conservatives are now getting SCOTUS opinions that are chipping steadily away at that.Report
Thats why treating the Constitution as holy writ is a bad idea. The thing was a product of compromise in order to set up a national government that was more functional than the Articles of Confederation. It wasn’t strictly intended to establish either a minimalist government* or the type of state liberals want. There is no way that the Constitution could be interpreted to give any particular ideology everything they want.
*Before the doctrine of incorporation, the only limit that the Constitution placed on state governments were that they had to have a republican form of government. Besides that restriction everything was cool. This means that under an original reading of the Constitution states could range from libertarian minimalism to socialist collectivism as long as there aren’t any monarchs or nobles involved. A state might even get away with monarchy by having a Hereditary Governor like the old Dutch Stadtholder if you interpreted the republican form of government clause as meaning anything that would be a republic by late 18th century standards.Report
Before the doctrine of incorporation, the only limit that the Constitution placed on state governments were that they had to have a republican form of government.
Side note, Colorado has a case slowly working its way through federal court over the issue of what “republican form of government” means. It hasn’t gone a long ways yet, but the district court ruled that in this situation — a state constitution provision that prohibits the state legislature from adding a new tax, or increasing the rates of existing taxes; they may only refer the matter to the voters — the question is justiciable. A three-member panel of the appeals court agreed unanimously with that, and the defendants have filed a request for an appeals court rehearing en banc.
I have no idea what the Tea Party position would be on the question of how much the authority of the state legislature to enact policy can be restrained before it stops being a republican form of government, and becomes direct democracy instead.Report
Of course, assuming for the sake of argument that the original meaning of the 2nd amendment didn’t give an individual right to bear arms, anyone who believes in a living constitution has to admit that seeing it that way now fits within their interpretive scheme.Report
Yup, @james-hanley , I’m not arguing for any particular interpretive philosophy or outcome* here. Just noting that neither of the philosophies generally thought of as “conservative” reliably gets them their preferred outcomes and they seem fairly unabashed at slipping and sliding between them, to the extent they’re even aware they’re doing it.
*FWIW, I support a regulated individual right to keep and bear on, I guess, classical liberal grounds, so I’m okay with the current state of affairs. I’m just not convinced that the Constitution demands that outcome.Report
To get an individual right you have to disregard the prefatory clause along strict constructionist lines
I don’t agree. The operative clause of the 2nd Amendment refers to the right of “the people.” Everywhere else the Constitution and Bill of Rights refer to “the people,” it specifically means the citizens, or at least voting members of the republic.
E.g., First Amendment: “Congress shall make no law… abridging… the right of the people peaceably to assemble.”
Fourth Amendment, “The right of the people to be secure … against unreasonable searches and seizures…”
The Tenth Amendment clearly distinguishes between the “the states” and “the people.”
The indication is that the phrase “the people,” refers to (or establishes, depending on your view) an individual right.
And as I argued in one of the UCSB shooting threads, the “preamble” in the Second Amendment simply is not operative language. Consider, the Constitution as a whole has a preamble, but this has never been considered as operative language, merely hortatory. The patents and copyright clause also has language explaining the purpose, “To promote the Progress of Science and useful Arts,” but nobody argues that copyright should be limited by any sense of what is “useful.” I can copyright on a string of randomly created nonsense words that have no meaning.
To put the explanatory language of the 2nd Amendment into play, or to deny that “the people” creates an individual right, is to apply a unique and idiosyncratic interpretation to the 2nd Amendment, one that is not applied to any other portion of the document.Report
With all due respect, @james-hanley , that’s just not historically correct, at least as I understand it. For instance, there was a decision mid-twentieth century that affirmed an individual right but only for military-style weapons useful for militia duty, based on the prefatory clause. So it may not have been controlling exactly, but it wasn’t a complete throwaway either.
In any case, you’re arguing on strict constructionist grounds, which is fine, but I hope you also then won’t turn around and complain about decisions based on the commerce clause, because that requires you to shift to original intent and at that point I’m going to ask for some justification for making that convenient move.Report
@road-scholar
I’m going to break my response up into two separate comments, one dealing with the individual vs. collective rights argument, the other dealing with the force, or lack of, of the militia clause.
But to start, no, I’m not arguing on strict constructionist grounds at all. I’m arguing on the principles that when the writers of a law use a particular term, they should be understood to use that term as they normally use it, unless they are explicit that it means something else, and that when another term that they have used is available and they don’t use it, that they didn’t mean that other term. I’m also arguing on the principles that preambles aren’t limiting unless explicitly made so. These are not principles that are strictly limited to any particular branch of constitutional interpretation, but are generally employed by all of them.
Re: SCOTUS ruling in 1939 (U.S. v. Miller) that that the 2nd allowed restrictions of firearms that had a “lawful” use (upholding a ban on sawed-off shotguns). While Miller does make use of the militia clause, it does not specify a collective right–it is ambiguous on that question.*
Over the remainder of the 20th century, the individual rights interpretation grew in strength among law professors, not just right-wingers or gun-rights advocates. I think this is because in the context of the Constitution as a whole, and particularly the Bill of Rights, the individual right argument just “fits” better. Again, everywhere else that “the people” is used, it is referencing individual rights. So that meaning has the rebuttable presumption of being controlling whenever that phrase is used, and given that in the 2nd it would be a unique departure from meaning, I’d argue there’s a pretty high standard to meet for a satisfactory rebuttal.
_____________
* (I’ll add that for anyone with a decent background in constitutional law, that U.S. v. Miller opinion reads as rather thin, not an impressive work of legal scholarship, but reading more as though it was written by a historian without significance knowledge of principles of legal interpretation.)Report
2nd part, re: the militia clause.
From Scalia’s opinion in D.C. v. Heller, with emphasis added.
Notice that Scalia here is demonstrating that reading the preamble as non-limiting has a legal history. By contrast, McReynolds’ analysis in Miller contains no references to general interpretive principles justifying his unusual reading of the preamble as limiting.
All I see in claims that the militia clause is limiting are historical references to how the founders understood militias (a curious form of originalism itself, an approach that “militia as controlling” advocates usually reject), which is not irrelevant, but is not the complete story in legal interpretation. In fact it is not even the primary story in legal interpretation, since the text is where we have to begin, and it’s both more charitable and produces a more coherent document if we read it as though the drafters had a consistent understanding of the purposes of particular words, and of the purpose of preambles/explanatory clauses.
I’ll throw in the note that, as one commentator on the 2nd Amendment has said (I forget who, but this isn’t original with me), the militia reading provides justification for a right to own military-style rifles, but not hunting rifles. I’d go further and say it also can justify a right to handguns, since the military also uses those. In fact, it might justify the right to own sniper rifles, but not that .22 squirrel gun, which has no military purpose. 😉
In truth, I have little brief for broad gun rights. I don’t own guns, I think the death toll from them is unacceptable, and I think the empirical evidence of insurrections in other countries demonstrates that we, the people, could fight an effective insurrection against the U.S. military if it ever came to that.* But interpreting the 2nd differently than other parts of the Constitution seems to me to be reasoning backward from one’s desired conclusion.
___________________
*My only brief for the 2nd is that I worry greatly about the precedent of repealing any element of the Bill of Rights. If I was comfortable no precedent would be set, that’s certainly the one I’d be comfortable repealing. But given that we’ve already seen constitutional amendments to limit the First Amendment come within a whisker of passing Congress—the flag burning amendment–I’m just not sanguine.Report
To put the explanatory language of the 2nd Amendment into play, or to deny that “the people” creates an individual right, is to apply a unique and idiosyncratic interpretation to the 2nd Amendment, one that is not applied to any other portion of the document.
Did you really just assert that the right to assemble is an individual right? Because that’s just silly. Obviously the right to assemble is a collective right…how could one person assemble? Or ‘petition’? (In the strict sense of ‘writing a list of complaints down and having people sign it’. Nowadays we use the word ‘petition’ looser, but that’s what it really means.)
Did you notice that the right to assemble and petition are actually the sole collective rights in the first amendment, and the sole things the ‘the people’ have the right to do?
Likewise, the 4th amendment actually states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
While that is perhaps the strongest case you have, that can indeed be read as a collective right. The people, collectively, have a right not to have their persons, individually, searched.
Meanwhile, there are several other places where ‘the people’ only makes sense collectively:
Senators are elected by ‘the people’, as are the representatives in Congress from the original constitution.
Powers not delegated to the Federal government are delegated to the states, or the people. Aka, local communities. For an example, the Federal government was given no power to regulate speech, so that power would be delegated to the state (before incorporation), or a local community, not ‘every person’.
And, perhaps most importantly, it is ‘We the People of the United States’ who are doing the entire thing, and it’s really difficult to read that ‘the people’ in anything but the collective sense.Report
Did you notice that the right to assemble and petition are actually the sole collective rights in the first amendment, and the sole things the ‘the people’ have the right to do?
No, they are individual rights. They can be individually enforced, and those deprived can be individually compensated.
Likewise, the 4th amendment actually states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
While that is perhaps the strongest case you have, that can indeed be read as a collective right. The people, collectively, have a right not to have their persons, individually, searched.
Same argument as above, except I’d argue even less defensible. Nobody claims that the police have violated “our” rights when they search John Doe without a warrant, but that John Doe’s rights were violated. I’ve read quite a few 4th Amendment rulings, and I’ve yet to see it described as anything but an individual right.
You seem to be confusing a right held by all the individual persons of the nation, by virtue of their being a “person,” with a collective right. They’re not the same.
We have, for example, collective rights to a republican system of state government. If my government becomes non-republican, I won’t be able to get individual compensation from it when it is overruled (assuming the Court were to stop seeing it as a non-justiciable issue).
Meanwhile, there are several other places where ‘the people’ only makes sense collectively:
These places are exercises of power, not a reference to rights. That’s categorically different, and has to be unless you want to completely wipe away the concept that the Constitution protects any individual rights, or at least wipe away any clear principle that would enable us to distinguish between collective and individual rights.Report
“If my government becomes non-republican, I won’t be able to get individual compensation from it when it is overruled (assuming the Court were to stop seeing it as a non-justiciable issue).”
The Supreme Court sees something that is spelled out in the plain text of the Constitution as non-justicable?
Oh, okay they did
But I would contend that were such a test be presented today, they would not be a loathe to rule – even ‘strict constructionists’.Report
The political questions doctrine is not necessarily a dodge to avoid rulings that cold too easily be ignored in political practice, but it provides ample cover for such a dodge. I suspect the republican government analysis is one of those. As such, I both loathe it as a matter of principle, and respect it highly as a strategic choice.Report
@kolohe
The Supreme Court sees something that is spelled out in the plain text of the Constitution as non-justicable? Oh, okay they did But I would contend that were such a test be presented today, they would not be a loathe to rule – even ‘strict constructionists’.
See my comment elsewhere. Colorado has such a case in progress, and so far the district court and an three-member panel of the appeals court has held that the Colorado issue (legislature may not introduce new taxes, nor raise existing tax rates, only refer such matters to the voters) is justiciable. We’re all waiting to see if the appeals court decides to rehear th matter en banc, and if not, whether the defendants will appeal to the Supremes or go back to continue the district proceedings.Report
@james-hanley
No, they are individual rights. They can be individually enforced, and those deprived can be individually compensated.
I’d like to see some evidence that anyone has ever won a court case due to being barred an individual right to assembly. Here’s a fun question for you: Is that right explicitly stripped when someone is convicted of a crime? If not, why do prisoners not appear to have it? Heck, they don’t appear to have that right immediately after getting arrested and not convicted.
And, of course, there’s the inconvenient fact it’s ‘the right of the people’, not ‘the rights of the people’.
Same argument as above, except I’d argue even less defensible. Nobody claims that the police have violated “our” rights when they search John Doe without a warrant, but that John Doe’s rights were violated. I’ve read quite a few 4th Amendment rulings, and I’ve yet to see it described as anything but an individual right.
There is an individual right in the fourth amendment: ‘no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’
That clause, the second clause, is an individual right. The first clause is a collective right. There’s another fairly strong clue in the first part:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated
The first part of the fourth amendment does not ban any specific thing at all! It asserts a general right society has to be secure. It even talks about searches and seizures in general. (And, once again, the ‘right’, not ‘rights’.)
Despite the way you seem to think it looks, the fourth amendment is actually phrased somewhat identically to the first amendment. It doesn’t ‘give people rights’, per se, it just outlaws specific behaviors of the government….namely, issuing certain kinds of warrants. Just, for example, like the first amendment doesn’t give ‘a right to free speech’, it just outlaws the government making rules about speech.
These places are exercises of power, not a reference to rights. That’s categorically different, and has to be unless you want to completely wipe away the concept that the Constitution protects any individual rights, or at least wipe away any clear principle that would enable us to distinguish between collective and individual rights.
So you’re saying that when the constitution grants ‘the people’ powers, it means ‘the people collectively’, but when it grants ‘the people’ rights, it means ‘each of the people’. That interpretation is, uh, somewhat unsupported by anything at all.
The fact that it’s talking about something different is not the point. The fact is, the constitution is saying X is something ‘the people’ have. You can’t say ‘the people’ mean something different because X is different.Report
David,
All I’ll say is that my background in constitutional law never hinted at your interpretations. Maybe you had different teachers.Report
@davidtc
So you’re saying that when the constitution grants ‘the people’ powers, it means ‘the people collectively’, but when it grants ‘the people’ rights, it means ‘each of the people’. That interpretation is, uh, somewhat unsupported by anything at all.
I don’t agree with your interpretation either. The Constitution does not grant the people the power. The people of the United States, a sovereign entity, ordained and established the Constitution and vested those powers to a federal government.
The Bill of Rights does not grant the people rights. It does not have the power to, for example, jail people for offensive political speech. It can not prosecute individuals for that so yes, it is a right held by all individuals.
The right to assembly is exercised individually by a number of people. You can say that’s a collective unit but the collective unit doesn’t exist without the acts of individuals.
I’d like to see some evidence that anyone has ever won a court case due to being barred an individual right to assembly.
I’d like to see some evidence that someone asserted assembly as part of an individual right and lost.
Powers not delegated to the Federal government are delegated to the states, or the people. Aka, local communities. For an example, the Federal government was given no power to regulate speech, so that power would be delegated to the state (before incorporation), or a local community, not ‘every person’.
I think you’re reading too much into the Tenth Amendment here. If the federal government can not prohibit political speech and such prohibitions are outlawed by a state constitution, then the people, individually and collectively, have a right to express themselves through political speech without the interference of government. That’s all it is for the most part.Report
@dave
I don’t agree with your interpretation either. The Constitution does not grant the people the power. The people of the United States, a sovereign entity, ordained and established the Constitution and vested those powers to a federal government.
I don’t understand what you think my interpretation is.
The 10th amendment specifically grants rights to the states and to the people. Me and James Hanley both agree that ‘the people’, in this instance, means ‘the people as a collective’. (I.e, ‘the people’ in this sense really means ‘whatever local government’.) It really can’t be read any other way…’the people’ in the sense of ‘that guy over there’ can’t possibly have any powers of the government.
My assertion is that this is the only sense ‘the people’ is ever used in the constitution or bill of rights…in the collective sense. (And hence that’s what it means in the second amendment.) James is asserting that ‘the people’ can mean different things based on context.
I think you’re reading too much into the Tenth Amendment here. If the federal government can not prohibit political speech and such prohibitions are outlawed by a state constitution, then the people, individually and collectively, have a right to express themselves through political speech without the interference of government. That’s all it is for the most part.
No, those are ‘rights’, not ‘powers’. Governments have powers. The tenth amendment says that any powers that governments have which the Federal government has not claimed fall onto the States. Unless the Constitution says the state can’t have them, in which case the people get them.
Rights are literally the absence of the ability for the government to do something, so it’s easy to think that the absence of a power is the same as rights. They are not. The Federal government, for example, has no power to issue titles of nobility, which generally is a power of government. Thus, lacking that power, such a power falls to the states. (None of which do so, but they could.)
Issuing titles of nobility is not, in any sense, a ‘right’ of anyone.
The right to assembly is exercised individually by a number of people. You can say that’s a collective unit but the collective unit doesn’t exist without the acts of individuals.
The right to assembly is not exercised individually. By the definition of the word ‘assemble’, you need at least two people to do it.
Now, obviously, if you need at least two people to do something, both of them, individually, must act to do it. Likewise, the government interfering with one of them has inferred with said assembly.
But let’s divert for a second to ask a rather obvious question: If freedom of assembly is an individual right, than how the hell does that differ from freedom of speech, and why would we need both of those in the same amendment? We wouldn’t, clearly.
There is an individual right to speech, usually called ‘freedom of speech’. And there is a collective right for many people to come together while exercising ‘freedom of speech’, and that right is called ‘freedom of assembly’.
And, while we’re at it, there is an individual right to write things (Freedom of press), and a collective right to agree with such a statement (Freedom of petition.) It’s basically the same two concepts, except with print. (And freedom of religion also combines with freedom of assembly, too.)
Please notice that I am in no way asserting that this lessens the right to freedom of assembly, or freedom to petition. I am not saying the government should have the power to interfere any more there, and in fact I say they interfere too much. Collective rights are still rights. Hell, I’d argue that collective rights need even more protection…the government shouldn’t be allowed to invade peaceable groups and spy on them for no reason. Even if no individual rights are harmed, the collective right to assemble without government meddling is harmed.
I’m asserting it’s a collective right as part of an attempt to explain that the phrases ‘the people’ and ‘the right of the people’ are used in a very specific collective manner in the bill of rights and constitution, and the second amendment should be understood in the context of that.Report
Bah, now you’ve got me doing it.
‘The 10th amendment specifically grants powers to the states and to the people.’Report
So, Tea Party. Unlike Zic, I’ve always seen the TP as folks who were tired of the Democrats “Tax and Spend” and the Repubs not doing enough to stop it. I’ll call the majority of them “disaffected right siders”, who may have been Republicans, “Yellow Dog Democrats”, or others who leaned fiscally conservative, in addition to all the other single issue folks. Unfortunately, a lot of the TP are perfectly content to keep their Social Security at the same time railing against the “welfare state”. Sorry bubs, SS IS the welfare state. The fact that they’ve allowed themselves to be co-opted into the “system” instead of agitating for real change pretty much turned them off for me. Like I said, hypocrisy is a big deal for me.
As to the Constitution, I’m generally, a strict constructionist. Words have meaning, and in general, the words are pretty clear. It’s a document that limits federal power. Oh, you don’t like what is said there? Change it. That’s what the amendment process is all about. So some comments to specific commentary above:
@road-scholar “2nd amendment was about collective defense while avoiding a standing army.” True indeed. However, it was a collective defense wherein every individual male was in the militia and, therefore, ownership of firearms was necessary. The state was not providing every male a weapon and powder and one does not journey miles to the armory only to return to the town to defend it.
@leeesq “This means that under an original reading of the Constitution states could range from libertarian minimalism to socialist collectivism as long as there aren’t any monarchs or nobles involved.” Yep, and I’m cool with that interpretation.
The problem, I see, is that folks don’t want to do the hard work of changing something they don’t like. We’ll just get a judge to “reinterpret” it to mean what we want it to mean. That’s a bad way to make policy and law and why I’ve always been critical of a “living constitution”. If meaning is subjective based upon the winds of politics, then it means nothing. And that means that what is given by gov’t can, and usually will, be taken away eventually.Report
Unfortunately, a lot of the TP are perfectly content to keep their Social Security at the same time railing against the “welfare state”. Sorry bubs, SS IS the welfare state. The fact that they’ve allowed themselves to be co-opted into the “system” instead of agitating for real change pretty much turned them off for me. Like I said, hypocrisy is a big deal for me.
We agree. I just find the timing a bit disturbing; had there been some root of Tea Party evident before Obama won the presidency, I’d give them more credit. Plus, deficits have to declined under Democratic presidents Clinton and Obama; and grown under Reagan and Bush and W. Bush. So TP rhetoric and the facts conflict.Report
@damon , my point was that under a doctrine of original intent, a view preferred by many conservatives like Scalia, a cogent argument can be made that the 2nd is simply inoperative now since we no longer have well-regulated militias as national defense, much the same way the 3/5 business was rendered inoperative with the demise of slavery.
If you’re going the strict constructionist route, that’s fine but I’m going to tell you the same thing I told Hanley. You don’t get to whine about the commerce clause.Report
@road-scholar
I’d have to go back to the Heller decision but if I recall, the basis of the majority opinion was original meaning originalism while the Stevens dissent leaned heavily on original intent.Report
If you’re going the strict constructionist route, that’s fine but I’m going to tell you the same thing I told Hanley.
Road, you’re just wrong about the “strict constructionist” claim. You can call the approach textualist, but that’s not the same thing. And in my case it’s more than just textualist, but based both on standard interpretive principles and on Randy Barnett’s approach to originalism, in which there is a presumption of liberty that suggests a broad reading of rights-protection. And that’s very far from a strict construction.
Hell, I’m not sure the 2nd Amendment lends itself to a strict construction, because the prefatory clause creates the ambiguity about which we are arguing. It’s easy for a strict constructionist to claim the First Amendment’s “no law” absolutely means no law, but what would a clearly “strict” reading of the 2nd be?Report
@Road Scholar
I’m cool. You don’t get to whine about the 10th then either.Report
Nowhere are firearms more restricted, than in the military. There are strict rules about issuing, registering, carrying, firing, arming, storage, and so on, far more than out in the civilian world.
If someone wants to insist that we all are part of the “well regulated militia”, then it seems reasonable to assert that very strict gun licensure and carry laws are perfectly consistent with the idea of a citizens militia.Report
It’s almost like the military sees them as effective, but dangerous, tools of the job.
I’ve often wondered what would happen if we required gun owners to have gun insurance. A separate policy, akin to mandatory car insurance — covering theft and loss (both cost of the gun AND potential damages if the theft or loss was ruled negligence on the part of the owner), accidental discharge, deliberate discharge in cases not ruled strict self-defense, etc.
You know, to actual cover the potential monetary risks associated with gun ownership. From theft to use to misuse.
I’m curious as to how the actuaries would handle that, what sort of costs we’d see. (IIRC, insurance companies actually low-ball their charges a bit — their profit is often on investment of the premiums, whereas the premiums themselves generally break even on payouts over policy life).Report
I’ve seen an argument that “well regulated” meant something rather different in the late 18th century, not so much the concept of fairly strict regulation that seems to be the dominant concept today, but to mean not over-regulated to the point of being burdensome.
I’m not enough of a language historian to pretend to know myself.
And of course that interpretation doesn’t get us to the point of no regulation.Report
I always assumed that “well regulated” meant trained with a command structure, but I could have just pulled that out of my ass.Report
Chris, that would be my basic assumption, too. But if there’s extensive literature that thoughtfully analyzes the original meaning of that term, it’s not yet come to my attention, so I just don’t know.Report
My understanding is that Washington, over his entire career, generally found militia to be poorly trained and a pain in the ass, better than levies but far worse than regular troops.
I’m guessing – at least from the perspective of the O.G. Founders – was that each state would field and train their own militia fighting force, actively, rather than having a standing central Army, or relying upon levies. This is more or less backed up by the Militia Act of 1792, which was just an official notice that the President could call up the state Militias absent a specific declaration of war in exigent circumstances.
Most of this was definitely build-as-you-go stuff, thoughReport
@patrick
I’m guessing – at least from the perspective of the O.G. Founders – was that each state would field and train their own militia fighting force, actively, rather than having a standing central Army, or relying upon levies.
After the service the National Guard had done in Iraq and Afghanistan, one cannot claim them poorly trained any longer. If left to the states, the problem would be one of funding, not training now. State militias would have to be federally funded and coordinated at a national level. But they already are, and each governor is COC of that state’s national guard. Best of both worlds.Report
Unfortunately, a lot of the TP are perfectly content to keep their Social Security at the same time railing against the “welfare state”.
I’m willing to cut them some slack on this one, given that SS has been sold as a savings plan since its inception. FDR said that it had to be described that way in order to make it palatable to the American public, and that continues to be true to some extent through today. Ask a bunch of 35 year-old workers if SS is a savings plan or a pay-as-you-go public pension system, and I’ll bet that well more than half will give the wrong answer.Report
The game is revealed, though, in a radio ad in rotation on the talk circuit that discusses how social security benefits have only increased 1-2% since Obama has been president while Food Stamp spending has increased 3 times.* So “click on this website for one weird trick on how to double your social security benefits.”
*that may not be the exact figures they used, but its around that. Furthermore, those figures are correct – though of course, completely stripped of context.Report
Eh, given the realities of a government saving that sort of money, practically speaking “pay as you go” pension is the only realistic outcome.
You just can’t DO “savings plan” like that. Not unless you want the government trying to find some way to invest ridiculously large amounts of money.
Heck, just to handle the ‘savings’ part of the Boomer retirement required a rather convoluted set of steps to avoid distorting the economy. So convoluted, in fact, that many people seem to think it didn’t happen.
Seriously, people get really confused over the basics of the 84 deal — specifically, the part where it was made revenue neutral to avoid economic effects. Indeed, people seem to think the fact that we spent all the money raised by the increased FICA taxes as some sort of problem, instead of the specific and exact requirements of the problem.
I’m pretty sure I’d describe it as a savings plan to, because it functions as one to the participant’s point of view. I don’t demand to see State Farm’s actuarial tables or their cash-flow policies, nor would I really care exactly how they finance as long as the basic “I pay premium, you pay claims” part was clear.Report
Eh, given the realities of a government saving that sort of money, practically speaking “pay as you go” pension is the only realistic outcome. You just can’t DO “savings plan” like that. Not unless you want the government trying to find some way to invest ridiculously large amounts of money.
You know that, and I know that, yet one of the two major political parties in the US takes the positions that (a) the same principles that apply to running your family budget apply to running the federal government’s budget; and (b) SS can be privatized, with at least a serious fraction, if not all, of the payroll tax money being invested through Wall Street.Report
Yeah, I know. Weird, right?
You know what they call any business run like your household? “Former”. 🙂Report
“I’m willing to cut them some slack on this one”
I’m not. Look into it for 15 seconds, follow the flow of funds into the SSA, the flow out to the US Treasury, and the flow back of USG bonds and it’s clear what’s happening. It’s not a saving plan. The PR BS line of a “lock box” was 100% propaganda. There is no money in the SSA. There is no “trust fund”. It’s all been spent. It’s spent as it comes in. Often payments to beneficiaries exceed payments in by large examples. Folks who never paid in get monies out. It’s a ponzi scheme. Congress has the ability to change the plan’s rules at a whim, shafting people who’ve paid into it with one set of expectations only to have those expectations fall apart. This is something you want to count on when you can’t work anymore? No frickin’ way.Report
Damon,
you’re just as much of a fool if you count on a 401k.Report
Damon’s mind must be blown by the fact that SS has worked for 70+ years, delivering money — and 401ks are, basically, a vast failure. (Bluntly put, most people don’t save nearly enough. It’s possible most people simply can’t).
Anyways, half your rant is basically screaming that a key feature is a bug. The 1984 deal explicitly did NOT want to save money. That is a Bad Thing, because if you take trillions of dollars over a few decades out of the economy (ie, you save it) this does bad things to the economy. It’s just as bad as if you invest it (whether in the stock market or something similar, like use it for loans). Either way, you’re distorting the market or the economy to a vast extent. (Indeed, this very problem is why SS is an ongoing funded pension system).
Which is why the 1984 deal was set up to hike SS taxes, loan the money to the General Fund, which cut taxes by exactly enough to offset the money they were borrowing. No net change to taxes, no money removed from the economy (savings) or invested to distort markets.
It’s reversed very easily — SS cuts taxes back, and General Fund raises them and reverses the money flow. It’s literally the only sane way a government can save money for 40 years without screwing the economy.
That you think this is some weird trick or bug or failure is strange. It not only worked exactly as it was supposed to, exactly as designed — but it worked literally the only way it COULD work.
Seriously — you’re King of America, and you need to save 2 trillion over twenty years. What’s your plan?Report
if you take trillions of dollars over a few decades out of the economy (ie, you save it)
Unless, like Scrooge McDuck, you stick it all in a room, saving does not generally take it out of the economy.Report
@morat20
Oh please. Rant? And I’m not talking about the 1984 deal. I’m tired of people saying that “it’ll be there for you” and it’s a “lock box” when they know it isn’t. It’s not the concept of SS that annoys me the most, it’s that politicians lie about it and people believe it. Everyone understands that what congress promises this year can be reduced or eliminated anytime after that? How is this anything but a sham that can’t be relied upon for anything but empty promises?
And moving money around between liability accounts on Balance Sheets doesn’t change the overall obligations. It just makes one set of accounts look better. Where I work, that’s called fraud, or at a minimum, misrepresentation.Report
You say you do, then you basically spout BS rhetoric that says you don’t…so, kinda hard to give you the benefit of the doubt there.
Besides, you’re still stuck with this: SS has been around what, 70+ years now? It’s worked. For three+ generations. And 401ks are about to hit the acid test, and the numbers are horrible.
Why you think the sky will fall NOW is beyond me, since every time anyone even thinks about touching SS they get politically slapped so hard their eyes cross.
But you keep telling truth to power, Damon. Sure, you’ve been wrong for 70+ years, but maybe this year’s the one!Report
Besides, you’re still stuck with this: SS has been around what, 70+ years now? It’s worked. For three+ generations. And 401ks are about to hit the acid test, and the numbers are horrible.
Why you think the sky will fall NOW is beyond me, since every time anyone even thinks about touching SS they get politically slapped so hard their eyes cross.
Count me as one who thinks SS will be there in the future. But it is worth noting that as a pay as you go program its functionality depends in large part on the ratio of payers to recipients, and the reason it worked smoothly for so long is because we had very good ratio. As that ratio has declined, it’s gotten harder to pay for, and has run deficits. But barring population growth declining too much, we’ll be in decent shape once the boomers pass on. And if the birthrate’s too low, just open up the immigration doors.
Euthanize the boomers and give citizenship to everyone who comes here illegallu, and SS will be golden.Report
@morat20
http://en.wikipedia.org/wiki/Central_Provident_FundReport
Euthanize the boomers
Get off my lawn.Report
Schilling, as a baby buster I fully expect the boomers and the echo boomers to join forces to stint my generation on SS, so anything that thins the ranks of boomer voters works for me. That’s also why I support legalizing marijuana–I figure there’s no way a bunch of geriatric hippies will be able to resist, and while they’re doing stoner talk about Woodstock we’ll be holding elections.Report
If you can’t smoke their dope and then vote against them, you have no business being a liberal.Report
Murali: I’d bet real money a lot of their investments are in US Treasuries.
Again, you come back to the distorting aspects of doing that in the US. If you invest in regular market T-bills you’re going to be distorting the market — you’re going to flood it with bond purchases, then VERY predictably) flood it with bond sales — which is going to screw with the US economy. I mean like a hammer to it, as debt sales are one of the key levers the Fed uses — before you get into the sort of killing speculators would make, and the massive haircut SS would take both ways.
If you invest it into Wall Street — or anything, really — you run into the fact that US wealth is so freakin’ large. Singapore is small enough that it can get lost, especially if the bulk of it is in something like US debt.
But whose debt would we buy? Who is big enough to absorb that sort of purchase/sale?
Again: There was a very specific reason that the SST was done in such a convoluted way. Realistically, there was absolutely no other way to save that much money without massive negative effects to the economy.
You can’t shove it into a vault, you can’t buy Treasuries unless you ALSO run up the debt, dollar for dollar (or else you’re stimulating the economy, which might be good or bad depending on what was going on in the economy). You can’t invest in the market, because it’d be predictable and subject to massive speculation and profit-taking — and then distort the economy. You could invest in another country’s debt, but who is big enough?
The last possibility is assets — but again, predictable buy/sell patterns.
Someone screaming about IOU’s is someone that hasn’t sat down and tried to solve the problem of “How do I save two or three trillion dollars over a few decades — in the US — without screwing up the economy”?
Heck, you could make a case that the 401k system is probably market distorting. (If nothing else, it’s a natural investment ‘floor’). Perhaps it’s a silver lining that it’s been so under-utilized and income inequality is so high. Imagine what would happen if 401ks were heavily invested and the boomer retirement hit. All those people, withdrawing ALL those assets, all at once and continuing. A massive, multi-year sell off. It’d probably feed on itself, since the sales would drive prices down, meaning they’d have to sell more to keep up their income…Report
@morat20
The only reason why SS has “worked” for so long is it’s beginning was reasonably modest and the number of folks paying into SS was greater than the number of folks receiving payments from SS. Over the years, like most transfer programs, additional benefits were passed by congress, increasing the outflow. Add to that the generational boomer wave is now beginning to crest where the payments out will are starting to exceed inflows. The housing crash and recession that has pushed many people off of the employment rolls hasn’t helped either.
SS is a far different beast from what it was orginally. If you want it to be around for another 70 years, it needs a “fix”, which has been long needed. Everyone’s known SS needed a fix for quite some time now.
And I don’t know why you consider something a sucess just becuase it’s been around for 70 years. The VA’s been around since 1930. Would you call it a sucess in treating vets? I guess if you compared it to nothing.Report
@morat20 writes,
You can’t invest in the market, because it’d be predictable and subject to massive speculation and profit-taking — and then distort the economy.
I have no expertise in this, so I don’t know. But I’m curious about it. I don’t follow the implicit logic in the claim, and that could be due to ignorance on my part.
But Alicia Munnell, a professor of Management at Boston College and Director of BC’s Center for Retirement Research, who was a also a Senior Vice President and Director of Research at the Boston Fed, a member of Clinton’s Council of Economic Advisers, an Assistant Secretary of the Treasury, and, well, read for yourselves, she’s got a hell of a curriculum vitae, thinks we can.
Her response to Morat’s concerns (if I understand Morat correctly) is,
I have no expertise in this, so I don’t know. But I’m curious about it. I don’t follow the implicit logic in the claim, and that could be due to ignorance on my part.
As a simple version of the problem: Say the SST invested in gold to handle the boomer retirement. 2.7 trillion dollars of gold.
What’s going to happen to the price of gold — since supply is fairly fixed? Well, the cost per ounce is gonna jump. And it’s gonna keep going up, because SS is buying out huge amounts year after year. Which means each dollar of SS surplus is going to buy less gold, because each ounce of gold is worth more.
Then, when the SST says “We’re gonna have to start selling gold next year as the boomers retire” — what happens to the price of gold? Well, it’s going to drop like a rock because now the market is going to be flooded with gold. Which means SST is going to have to sell more and more gold to make a dollar. (Now you can probably claim it’s a wash, long-term, but that’d be in a vacuum — if no one was speculating and there were no other buyers and sellers).
Investments in the stock market are going to follow the same pattern. Now, if everyone invested their own SS ‘savings’ it wouldn’t be quite so predictable, but then you’d run into the fun question of “What about the unlucky ones or the bad investors” which runs smack into the problem SS was created to solve and which would, in fact, still exist. (In raw money terms, it’d be worse. 3 trillion was just the surplus, which would be invested in the market rather than T-bills. If you had individual accounts invested, the amounts would be higher. SS’s what, 700 billionish a year in payments?)
Indeed, the gold example is exactly why the 1984 deal involved dollar-for-dollar revenue cuts for each dollar in additional FICA taxes. The total number of Treasuries sold, including the SST ones, stayed the same. You didn’t ‘bubble’ Treasuries — the deficit spending, basically, went up or down irregardless of what SST was doing. They didn’t want a T-bill bubble, which would have been worse than a gold bubble because T-bills are sorta involved in one of the Fed’s monetary tools.
*shrug*. We have enough of a problem with financial bubbles right now, without pumping hundreds of billions a year into the market on top of that. Can you imagine another fun recession and having hundreds of thousands of elderly suddenly having their income slashed by huge amounts because a market crashed tanked their investments? Or SS, if it’s doing the investing, having to figure out what to do when it lost a third of it’s income due to market conditions?
Hey, market crash AND sudden, massive drop in spending to add slack demand to the problem. Sounds like something to avoid, if you don’t like depressions.Report
James Hanley,
D’oh. Forgot to address a few things. First, 8% is 8% on TOP of state and local pensions, right. (So government investment would be crowding 20%, yes?. That’s not counting 401ks). Which is half the trust fund, yes? So 16% if one were investing the entirety of the trust fund (which would, say, be the case if we did this in 1984).
And that’s just the trust fund. Not the bulk of the money SS handles, which is pay-in-pay out. (And half this conversion is griping about the Trust Fund and how it’s an IOU and the other half is complaining it’s not a savings plan, it’s a pass-through pension).
That 8% — or 16% — would be more predictable than the 11% of State and Local pensions, because the Trust Fund is an accumulation of excess income designed to be paid out at a predictable time. Which means 8% or 16% is going to flow OUT at a time virtually every investor can predict, and it’s not going to be replaced — because the Trust Fund is a one-time thing aimed at the demographic bulge the boomers represent.
State and local pensions at least tend to have rough parity in what’s paid in and out, which means while there’s a stable floor of 10 or 11%, it doesn’t vary.
How do you think the markets would react if they knew that, starting next year, 8% (or 16%) of the market was gonna be sold off over the next two decades? (And they knew which 8% it was!). What do you think that would do to the price SS would get it sold?Report
Morat,
I agree that sounds very persuasive, at least to someone like me who is not tremendously well-versed on these matters.
But if it’s so simple and obvious, why are these folks who are experts–and not anti-SS ideologues–in disagreement with you?
What’s your field? Is this your expertise, or if not, is it possible you’ve overlooked something those experts recognize?
I’m not trying to bash you, but if we turn it around, and it’s a case of me making a reasonable-sounding argument about something that’s not in my area of expertise, and you found three respectable experts saying the opposite, I think you’d be skeptical of my claims, wouldn’t you? And I think rightfully so (although I can’t promise to remember to think so in the moment!)Report
@dave
“The problem, I see, is that folks don’t want to do the hard work of changing something they don’t like. We’ll just get a judge to “reinterpret” it to mean what we want it to mean. That’s a bad way to make policy and law and why I’ve always been critical of a “living constitution”. If meaning is subjective based upon the winds of politics, then it means nothing. And that means that what is given by gov’t can, and usually will, be taken away eventually.”
I would say that BSDI but liberals get the blame more often because originalism and strict constitutionalism have been seen as philosophies for conservatives for a long time. The Constitutional system allowed for this to happen since Chief Justice Marshall created the concept of Judicial Review. This is simply part of our system and I have a hard time blaming people who take this course because it does lead to quicker action.
Imagine if SSM advocates went the way that was not via the courts. It would potentially take them decades to win because of gerrymandering and other issues include the innate conservatism of some states. The judicial path allowed for victory quickly in many ways. Telling them to do the slow path is not really fair.Report
Yes, because it the ends justify the means.
Integrity. Doing the right thing. F that. We got it done. We win.Report
“TP are a bunch of racist butt heads who enforce their views at the barrel of a gun.”
“TP are a bunch of racist butt heads who enforce their views at the barrel of a gun.”
Hey, anyone one seen the TP lately? Who are those butt heads coming over the hill with guns?Report
Out of curiosity, who are you quoting? You know, with the bit with the quote marks?Report
I’m trying to figure that out as well.Report
@leeesq
I see Tea Party constitutionalism as a form of idolatry. They seem to treat the Constitution as something of an idol to be adored and kept in a state of purity rather than a framework for government made out of a series of compromise. The Founders are treated as prophets rather than politicians trying to so something new. They treat the Constitution as holy writ.
These are very broad statements.
Keep in mind that the principles of limited government and strict construction have a historical basis and were late 18th/early 19th century principles. I don’t think there’s anyone treating the Founders as prophets because many of the key founders held the sort of nationalist views that, for lack of a better term, Tea Partiers would reject (how many Tea Partiers fly the flag of Hamilton or Wilson). I don’t see as much of an embrace of the Founders as I see an embrace of the anti-Federalists, whose principles, for better or worse, would eventually become associated with the Jeffersonian Republicans and, later on, the states rights movement. I’m not comparing the Tea Partiers to the mid 19th Century secessionists but their origins come from roughly the same place (hence my citation of the Kentucky and Virginia Resolutions).
You make an interesting point about compromise, and it’s important to explore that point further. Does the fact that the Constitution was a compromise mean that it merely established a framework? When I read terms like framework I think of either framework originalism (Jack Balkin) or I think of non-originalist/non-interpretivist methods of interpreting the Constitution, methods most associated with liberals. This isn’t meant as a negative comment about those methods.
Historically, even if we agree that the Constitution is a compromise, the nature of those compromises does not lend itself to a “framework” interpretation. The Bill of Rights does not lend itself to a framework interpretation, especially the plain language of the Tenth Amendment. A Bill of Rights, a compromise in my book, was added after the anti-Federalists pushed for it fearing that the federal government could expand its power and threaten the sovereignty of the states.
By my lights, the Federalists would have preferred a more expansive federal government; however, the resistance from the anti-Federalists, who were extraordinarily jealous about protecting state sovereignty, would have prevented ratification from happening under those terms. They looked at terms like “general welfare”, “necessary and proper” and “supreme law of the land” as well as the language of Article III and the “we the People” language in the preamble and raised all sorts of concerns about the Constitution forming a wholly national government. They expected revisions to the Articles, not a whole new proposed form of government. My opinion on compromise is that slavery aside, the biggest compromises made were to the anti-Federalists that wanted to limit the power of the government.
I’ll make two quick points to wrap this up.
First, even if those compromises leaned towards a limited government reading, it does not follow that strict construction is the proper way to interpret the document. The proper method of interpretation was not settled at ratification. A normative defense of strict construction is fine to make, but to consider it as the “settled” method is ahistorical, especially when one considers the jurisprudence of the Marshall Court, which was anything but (see: McCullough and Gibbons). Strict constructionism is most associated with the compact theory and state sovereignty as laid out by St. George Tucker.
Second, my biggest issue with some people making historical arguments, and I’ve been guilty of this in the past, is that they tend to treat anything that happened outside of that original framework as an unconstitutional usurpation. Maybe there’s a little truth to that since there’s no way in hell that the Wagner or Social Security Acts would have been constitutional prior to the mid-1930s. Absolutely not. If anyone suggested these things to Patrick Henry at the Virginia ratification convention, they probably risked life and limb.
However, our Supreme Court upheld them. Why? Was it because the heroic Roosevelt administration rode to the rescue of the American people held hostage by a Supreme Court that cared more about laissez faire economics than the people? Was it because the Progressives saw the language in the Constitution as an opportunity to exploit the document and “reinterpret” it in order to fit their vision of the world hence destroying the liberty for everyone else? The reality is a little more complicated and may not involve acts of bad faith by those we disagree with.Report
The reason why I say that the Tea Party people treat the Constitution as an idol is all the religious force they invest in it and how they speak about it with a sense of awe. Look at the picture that LWA posted. Thats pretty representative on how many Americans perceive the Constitution in my opinion. They read it like Biblical ltieralists read the Bible. They think that the their interpretation is obviously the truth that they can’t even comprehend disagreement. The Founders lose their separate identities and disagreements and merge into a group of people with one message and identity.Report
@LeeEsq
Virginia Declaration of Rights:
“Section 16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity toward each other.”
I guess George Mason was a religious man and maybe it rings a chord in religious people today. I recognize the observation occurs even in non-religious people. Maybe it is in reverence to the way teachers teach students the value of the meaning of the BOR in schools.Report
@leeesq
They think that the their interpretation is obviously the truth that they can’t even comprehend disagreement.
I get that as well. The conversations usually start and end with “general welfare”. Tea Party types aren’t the only ones prone to constitutional laziness.Report
@dave – Well, I’ll be honest. I don’t really care what a bunch of old rich white guys in a relatively small part of a world in the late 18th century thought how a government should be run when there’s 300 million people. For instance, state’s rights and federalism made a lot of sense when it took 3 days to get across Rhode Island. Now, when I can fly across the country in 5 hours, the point of states as more than administrative districts is kind of silly.Report
@jesse-ewiak
Your comment rather intrigues me for a few reasons.
We all spend a great deal of time grumbling about regulation, but if the great ACA debate taught me anything, it’s that most of the annoying regulation happens at the state level, and residents of one state usually presume somebody from another state has the same annoyance, they go at it talking about asparagus here and squash there as if both were custard pie.
Another is how often I hear people (and often conservatives!) complain about the differences in regulation between states when they realize that they’re all not the same. People who will ideologically go on about states rights, and not realize that no, the rules in MA are different from the rules in TX, which are different from the rules in AK.
So in my view, there’s all this pent up anger about state regulation, even local regulation, that gets dumped on the federal government. This has a complicated relationship to taxes; it’s the federal tax that’s most bothersome, but the local property tax most likely to fall victim to the tax axe; the tax dollars that benefit us the most directly, sacrificed to ire at the Federal government, mostly over ire at regulation made at the state level.Report
Well, I agree that Rhode Island is archaic. Maybe a few others of the eastern statelets. But that’s about it.Report
What about Idaho?Report
Small potatoes.Report
Oh, I would take a pencil and eraser to a lot of places. My own previous hyperbole aside, it’s fine that Idaho exists. It should just exist somewhere else.Report
Are you in favor of merging Rhode Island and Connecticut? Or maybe lumping all six New England states into one? Somewhere in between?Report
When this last came up (elsewhere), the consensus was that Rhode Island was better with Massachusetts. Connecticut probably has too many ties to New York to put with that group, so it stays.
I’d look hard at Maine, New Hampshire, and Vermont. Maybe just the latter two.
Delaware would probably pick up the Eastern Shore, so would become a little less of a statelet and more of a state.
Outside the east coast: Dakota.
Scotching Idaho would be possible, but tough. Keeping southern Idaho as Idaho would probably be the way to go, throwing in some of Oregon, perhaps. I’ve been trying to figure out scenarios for my potential Western States of America Constitution post.Report
federalism made a lot of sense when it took 3 days to get across Rhode Island. Now, when I can fly across the country in 5 hours, the point of states as more than administrative districts is kind of silly.
The speed at which one can cross area is but a small matter in the issue of whether we should be federal or unitary. I agree that it diminishes the value of federalism to some extent. When you cannot get word back and forth to a place for weeks, clearly direct central administration is going to be inefficient.
But another important basis for federalism is inter-regional variability. We already see this problem with some federal laws that would apply a one-size fits all solution to states that are different enough that it doesn’t work well.
Sometimes the differences are political, but why should Idaho and Florida have all laws governing them be the same, rather than having a basic set of laws–laws that ensure fairness in treatment and access to the political process for all, no Jim Crow “states rights” business–and on other matters allowing for variation according to local taste?
Federalism is, in fact, very democratic. Properly structured, it keeps decision-making at the level of the affected stakeholders, enhancing their voice. (I think sometimes contemporary anti-federalism comes from an inability to stomach the thought that someplace, somewhere, people dare to be satisfied with a different arrangement of their political affairs than the outside observer would.)
Sometimes the differences are physical. Building codes appropriate to California are not appropriate to Iowa. California has restrictions on charcoal grilling, because of air quality problems, but that’s not necessary in Maine. Should states be prohibited from setting minimum wage laws higher than the federal level, even though the cost of living is much higher in Massachusetts than in Alabama? Should California’s air quality regulations be wiped out because conservatives nationally keep the national standards lower?
In fact we have “regulatory federalism,” where the federal government sets the standards, and allows states flexibility in meeting them, for just this reason. And we have had an increasing amount of environmental federalism over the past couple of decades as environmentalists realize that there are a lot of problems that can be tackled on the state level, and have realized that they can often have greater success at the statehouse than the national capital.
Federalism is sometimes viewed as a conservative vs. liberal issue, but that’s really inaccurate. The conservative vs. liberal debate is in what issues should be nationalized vs. kept at the state level, but both sides have issues they pursue at the state level in the absence of prospects for national success.Report
Certain groups of the media, and a host of political groups who were very proficient at labeling these folks teabaggers. The comment is just a play on irony that some factions create bigger messes than they can understand.
Most of the people I knew who had tea party leanings have moved on, as I would say most of the TP commons have. Something changed when Ron quit. I don’t think these “told bastards” have a leader anymore. Maybe a few echoes of Jefferson as Dave pointed out above.
I think Free State carries a lot of weight in the 2nd. Not that it could keep this patchwork of society together, but it at least gives a reason of why to arm in the first place.
I think “militia” is in the 2nd because it was an important piece in the Virginia Declaration of Rights. It is somewhat a hat tip to the states rights folk to insure they will retain their right to militia governed by civil authority as secondary back pressure against standing federal armies.Report
Hell, maybe the 2nd existed awhile as a state right before being placed in the federal form. Could be why we have a hard time with it.Report
Upthread, @chris says:
When those amazing men negotiated the Constitution and Bill of Rights, they in great part excluded women. They included slavery.
But their amazing accomplishment was writing a document that could grow to include me, the end of slavery, that will potentially soon recognize my brother’s marriage, though it already does as a states-rights issue. To me, these things are proof of their original intent: something that could grow and adapt to fit the needs of the people. That is originalist thinking. Thinking that literal interpretations of the rules of 1814 should fit the needs of 2014 strikes me as both ludicrous and highly disrespectful of their great accomplishment.Report
What you say seems pretty consistent with what @james-hanley says upthread as well: the general spirit of the document is the important thing, not the meanings of specific words. I think I agree with that in general (though I’d have to think about it some more), and I don’t mean to diminish their accomplishment, even if their system of government and my preferred one are very different.Report
even if their system of government and my preferred one are very different.
A.) I hope one day to get more details about your preferred system.
B.) I also hope its basis may be found in strange wimmin, lyin’ in ponds, distributin’ swords.Report
This time, she gives it to a sister, @glyph
When Jesus comes back, my money’s on Jesus ‘her.’Report
Glyph, after recent misunderstandings — centrist? centrist? — I’ve thought about doing just a, “Here’s what I believe” post, but I worry that a.) only my mother would really care, and b.) it would shock the hell out of my mother.
Also, I cannot think of that scene without laughing. What’s sad, though, is that if Dennis is a spoof of anyone here, he’s a spoof of me. Except that I’m 38, not 37.Report
It sounds pretty consistent with my vision.
In part, their “mistake” given that they wanted to restrict rights to women and non-whites, was in using the non-restrict term “persons,” (and having allowed, some years previously, Jefferson to write that “all men are created equal” line). Once you get that general, it’s just a matter of time before people start noticing how the specific applications don’t fit the general claim and start clamoring to rectify various of those applications, then later others start clamoring to rectify another.
That’s the case with gay rights. The big breakthrough in public opinion was when people began to recognize that, yeah, they’re persons, too.Report
That’s pretty much it, @james-hanley
More to the point, I’m saying that original intent was to allow that flexibility to see persons where we didn’t see it before is the great accomplishment.Report
The important thing about Jesus is not what he did, but what God didn’t. The fact that we killed Jesus and were not immediately vaporized is God’s ultimate (in both the popular and the proper senses) statement on the question of whether we’re on our own now. We are.Report
@zic
To me, these things are proof of their original intent: something that could grow and adapt to fit the needs of the people. That is originalist thinking.
Respectfully, it’s not even close to that. To get the Constitution ratified in key states like New York and Virginia, the Federalists had to bend over backwards to reassure the opponents of the Constitution that the federal government would not exceed their enumerated powers. Remember, it was the anti-Federalists that wanted the Bill of Rights.
Your view would most likely reflect the worldview of the more hardcore federalists but in order to understand the meaning as understood by the ratifiers at large, other positions have to be taken into consideration.
So no. I don’t accept a 1789 version of the living constitution. I’d go one step further and argue that it would never be ratified if it was as you described it. The southern states wouldn’t have touched it with a 500-foot pole.Report
Except I said, When those amazing men negotiated the Constitution and Bill of Rights, because they’re a package deal. And I can vote. And there are no slaves, at least registered as legal property.
So you’re making a distinction of factions about that time that I am not making now; my point is that despite what any of the factions might have intended, they result is a document that grows in how it identifies ‘people’ and ‘rights’ that are protected from encroachment by law.
The result is also a living history, for the system results in a rule of law based on precedent and ongoing interpretation, which has, for the most part, been working toward expanding the concept of who the people actually are; not just white men, not just land owners.
So I pretty much reject original intent, except for the original intent of something that will change in understanding . I don’t think we’ll need a constitutional amendment to grant the right of gay marriage, I think we’ll recognize it as a basic human right to marry the partner of our choice. The right is already there; waiting to be recognized. Attempts to abridge a right often clarify it where, previously, it was unenumerated.Report
Original intent comes to “Whose”? As noted, there were two main factions — and dozens more — and the result was a compromise document with a lot of vague language to smooth over disagreements, and that was — to use the parlance — shipped with a Day Zero patch called “The Bill of Rights”.
So when people say “Original intent” I immediately wonder which FF they’re gonna cherry-pick, because to hear some people you’d think Madison wrote the Constitution himself on a long weekend and then shoved it into law through sheer force of will.Report
@zic
Except I said, When those amazing men negotiated the Constitution and Bill of Rights, because they’re a package deal. And I can vote. And there are no slaves, at least registered as legal property.
If anything, the amazing men you need to thank are the framers of the 14th Amendment and the abolitionists that influenced them. The reason the Bill of Rights applies to the states have everything to do with them and nothing to do with the original framers and ratifiers.
So you’re making a distinction of factions about that time that I am not making now; my point is that despite what any of the factions might have intended, they result is a document that grows in how it identifies ‘people’ and ‘rights’ that are protected from encroachment by law.
The growth is mostly driven by political legitimacy in my opinion. Constitutional doctrines need some measure of political support. That’s why it took so long for the federal courts to start striking down SSM bans using heightened scrutiny despite the fact I made arguments that it should do just that over 10 years ago. If the New Deal era jurisprudence had no political support behind it, it would have never survived.
So I pretty much reject original intent, except for the original intent of something that will change in understanding .
I guess I need to clarify my views here since I’m seeing original intent being thrown my way more than it ever has been, a very interesting thing to see given my strong views against it.
I think that original intent as a means to determine the historical basis/framework for the Constitution is not an unreasonable thing to do. This has nothing to do with constitutional interpretation per se. It is a historical inquiry into textual meaning. Nothing more. At least, that’s how I approach it.
Original intent as a method of constitutional interpretation should be rejected and forcefully. Setting aside obvious problems of legitimacy, I categorically reject it because there’s no way anyone can project the framers intent in a way that can apply to the constitutional constructions required to create legal rules. There are no good normative arguments for it and it’s no accident that originalism moved to original meaning in the late 80s.
I think you need to reject any kind of original intent. What has happened over the last 200 years may have some degree of inevitability (which is exactly why some people opposed ratification) but it’s a stretch to suggest that any of this was originally intended. At the end of the day, it shouldn’t matter anyway.Report
even if their system of government and my preferred one are very different.
I don’t think I’m speaking of ‘system of government,’ so much as the essential ingredient is recognizing flexibility as the essential, agreed-upon foundation; even the constitution itself can be changed through democratic process. We could, for instance, change POTUS to a single six-year term. Or put a limit on Supreme Court appointments.
Or let the ladies vote.
Or amend the 2nd and require active training and militia participation for gun owners. The US military is pretty good at teaching honor, responsibility, and leadership, including through the National Guard already.Report
@zic
“Or amend the 2nd and require active training and militia participation for gun owners. The US military is pretty good at teaching honor, responsibility, and leadership, including through the National Guard already.”
Is this humor, irony or a real statement?Report
Well, given the initial militia setup and the historical uses at the time…the National Guard is clearly the modern equivalent (it’s relationship to the states, for one), and given the plain reading of the 2nd amendment and the direct reference to the militia….hmm, yes, one could make the case that if you wanted to own a gun, you should be in the Guard.
As it was, Heller was based on English Common law (and the English Bill of Rights) from the 1600s.
Frankly, the majority in Heller took some serious historical liberties in that. And honestly with the US at the time. I mean, you can make some strained philosophical cases but really at the time (both English and US) it was about Parliament versus the Monarchy and States versus Federal Government.
The only care any of them gave to the individual and his or her gun was making sure they (the individual) had it in case parliament or the states felt they needed it against the King/Federal Government.Report
yes, one could make the case that if you wanted to own a gun, you should be in the Guard.
If you read the constitution, the states are supposed to have militias and train them, and the Federal government is supposed to provide for ‘organizing, arming, and disciplining’ them. And call them out during an invasion.
The argument that I’ve always made is that the 2nd amendment is intended to keep the Federal government (Which, after all, is all it applied to when it was enacted.) from restricting the rights of states to operate their militia. The Federal government has the duty to arm militias, but it can’t disarm them, or the people in them.
So the argument actually isn’t ‘if you wanted to own a gun, you should be in the Guard’. The argument is more ‘The Federal government cannot disarm militias, which means it actually can’t enact any gun control laws the states do not like. States get to decide who is in their own militia, and hence who the Federal government cannot meddle with the gun ownership of.’.
Of course, this also means, as I have always argued, that states should be free to set whatever gun control laws they want. (And the Federal government should too, with the knowledge that the state, if it wishes, can just declare a person part of their ‘militia’ and override any such Federal laws.)
Incidentally, I think I should make damn clear at this point that random yahoos running around in groups calling themselves militias are not militias. The right has been, for decades, advancing the idea that the ‘military’ are armed forces working for the government, and ‘militias’ are armed forced not working for a government. This is a complete and total lie.
A ‘military’ is composed of professional soldiers, and a ‘militia’ is composed of amateur soldiers. Both of them are operated by governments, and the terms have always referred to groups operated by the government. There is no historical context that would support a random group of people just asserting they were in a militia without any governmental backing.Report
All of the above.Report
I read George Mason about civil power and see that the control of militia are neither state, nor federal holdings.
Ohio National Guard deployed May 4, 1970
68 rounds
Approx. 29 guardsman engage
Approx. 100 yards
4 state opposition fatally wounded
Majority of the rounds likely were .30-06 from M1 Garand
pretty ugly statistics any way I Iook at them
“The US military is pretty good at teaching honor, responsibility, and leadership, including through the National Guard already.”Report
I read George Mason about civil power and see that the control of militia are neither state, nor federal holdings.
I don’t actually know if you’re disagreeing with me or not, but actually I was rather sloppy with my statement ‘the terms have always referred to groups operated by the government’. That rather depends on what you consider ‘the government’ to be. 😉
Often time, in places with nobility, noblemen were granted the right by the crown to raise a militia, which was under their control. Now, in theory, that militia was under control of ‘the government’. In practice, however, things often were a little dodgy. So in practice, militias sometimes wandered off and did their own thing. They were famous for being more loyal to their community than the people they were supposedly working for.
…you know, this probably ties into the whole wack-a-doodle nonsense about ‘sheriffs are the ultimate authority’ nonsense somehow. Which is delusional stupidity…sheriffs have always been under the control of someone else. The word comes from ‘shire reeve’, and a ‘reeve’ is just an appointed royal officer.
But, then again, these are the same sort of nutjobs that have convinced themselves that ‘squire’ on a business card is a title of nobility, so who knows what they think ‘sheriff’ means.Report
Tie in the Admiralty Courts thing and you’ve got a hat trick of crazy.Report
OMG, they’ve got a gold fringed flag!Report
Hanley, do you mean that your flag is not gold fringed?
snif.Report
I am not running an admiralty court or administering martial law, for I am a true patriotic Amurrican who sticks to the original King James version of the Constitution as Washington received it from the hands of Jesus.Report
@davidtc
The 10th amendment specifically grants rights to the states and to the people.
Textually, this is an incorrect reading. Under our system of dual sovereignty, this is legally impossible since the sovereign people of the United States did not give itself that power. It placed certain restrictions on the states and enumerated certain powers to the federal government. For your interpretation to hold, the Constitution would have had to have established a national government where the states were administrative bodies. This may be the preferred approach if I understand what Jesse Ewiak said to me, but it’s not the way the Constitution was set up. Even today, that doesn’t hold true.
The idea that a Constitution grants rights would have been foreign to the ratifiers. They were looking to protect the rights they believed they possessed.
Me and James Hanley both agree that ‘the people’, in this instance, means ‘the people as a collective’. (I.e, ‘the people’ in this sense really means ‘whatever local government’.) It really can’t be read any other way…’the people’ in the sense of ‘that guy over there’ can’t possibly have any powers of the government.
I think Hanley and I disagree with you. As it is, I’ve already shown you why the Tenth Amendment can be read another way, and that way is the correct way.
My assertion is that this is the only sense ‘the people’ is ever used in the constitution or bill of rights…in the collective sense. (And hence that’s what it means in the second amendment.) James is asserting that ‘the people’ can mean different things based on context.
Your assertion is based on what? There are two ways to look at “people”. “People” as a collection of individuals and “people” in the collective sense of a single body politic. The collective rights view applies to your assertion.
We are not going to settle this debate, but obviously, I dispute that notion. The text of the Fifth Amendment refers to a “person” being deprived of life and liberty without due process of law. You absolutely cannot read the Fourth Amendment in the collective rights sense. The same goes for the Sixth and Seventh. The prohibitions and safeguards in many of these amendments protect individuals from the unlawful acts of our federal government.
Yes, there has been a tremendous amount of academic debate about the nature of rights pertaining to the Second Amendment, and in the 2008 Heller decision, the individual rights perspective prevailed. I’m not going to say we can’t debate these points; however, I will disagree with you to the extent that you are attempting to throw the protection of individual rights under the bus to establish a collective rights argument that you can then use to justify your Second Amendment position.
Rights are literally the absence of the ability for the government to do something, so it’s easy to think that the absence of a power is the same as rights. They are not. The Federal government, for example, has no power to issue titles of nobility, which generally is a power of government. Thus, lacking that power, such a power falls to the states. (None of which do so, but they could.)
I can turn this around on you and suggest that just that the lack of federal authority on a certain matter does not mean that it automatically gives the states the power to legislate on that issue. That assumes a nearly plenary police power of the states, and traditionally, the police power has been broad but limited to only those matters that affect the public interest (public health, safety, etc.).
The right to assembly is not exercised individually. By the definition of the word ‘assemble’, you need at least two people to do it.
By definition of collective rights, it can be easily demonstrated that a collective body politic need not exist for a right to assembly to take place. You and I are working from two different definitions of collective rights. To me, collective rights include the right to self rule and revolution, rights that ONLY can be exercised by a sovereign body politic.
Now, obviously, if you need at least two people to do something, both of them, individually, must act to do it. Likewise, the government interfering with one of them has inferred with said assembly. But let’s divert for a second to ask a rather obvious question: If freedom of assembly is an individual right, than how the hell does that differ from freedom of speech, and why would we need both of those in the same amendment? We wouldn’t, clearly.
To point out the problem with this kind of argument, I’m going to invoke another instance where constitutional arguments are made on the basis of logic rather than history – judicial review. One can easily look at Article III and say – “hey, am I supposed to believe that the Founding Fathers created a system where a dispute between the states and federal government is settled by the federal government, one of the parties to the dispute? Doesn’t that sound like a defendant acting like a judge in his own case?” People do this crap all the time, and the easiest way to answer it is look to history. In the case of judicial review, yes, the Framers did intend for the federal courts to settle disputes between states and the federal government (the recent scholarship is as conclusive as one can get).
Given the absurdity of the judicial review argument put forth by some conservatives, nullifiers, states rights advocates and all around fools, why go down this road? If you’re questioning why the Founding Fathers included certain language in the documents, rather than work out whatever logic is going through your brain, I kindly request that you consult the historical material because that’s the only place you’ll find the answers. The historical answers are the only ones I’ll take seriously when the correct answer requires a look into history.
I’m asserting it’s a collective right as part of an attempt to explain that the phrases ‘the people’ and ‘the right of the people’ are used in a very specific collective manner in the bill of rights and constitution, and the second amendment should be understood in the context of that.
I respectfully disagree. I think there’s far more to this discussion,and as much as there may be some basis for a collective rights reading, the scholarship defending the individual rights view has been persuasive to me. If you want to read a good one, I’d recommend Randy Barnett’s defense of the individual rights basis of the Ninth Amendment.Report