Semi-Daily Journal

Scalia is an ass. He is no different than those he ridicules for their "improper" reading of the Constitution. He tortures the text so it can only be read in a way to be consistent with what the founding fathers thought; but he is the arbitrer of what the founding fathers thought. (And he gives no credence to what the founding mothers may have thought.) He is a great critic of legislative intent as a method of giving meaning to a statute but he is all intent of the founding fathers when it comes to interpreting the Constitution. To the extent someone would interpret the founding fathers of wanting a living, breathing document that was to be interpreted within the context of the society at the time when the issue was in dispute, he would scoff at them, or worse, with his poison pen. Historians will one day conclude that Scalia, or his line of thought, was at the heart of a Constitutional crisis which resulted in his thinking pushed to the side. Souter has predicted as much with the new Federalism that Scalia, Rehnquist, Thomas, Kennedy and O'Connor have foisted upon us. There is more to heaven and earth than is dreamt of in Scalia's philosophy and that will be the undoing of his contribution to Constitutional scholarship. But not until great harm has been done to our society.

see, someone without a good grasp of how the implications of an argument does not invalidate the argument itself might come away with the impression that conservatives are all pretty much racist scum.

by they way, has anyone noticed that Scalia seems to have gotten loopier over the last couple of years, it seems to me that he has now maybe he just feels emboldened to say what he really feels by the current political climate, or it could be that we're gonna find out the guy has a serious prescription drugs problem.

Brad has made a Freudian slip: the ruling (and the report) were about gay not interracial sex.
The larger point holds. What the Founding Slaveowners thought about slavery is immaterial as the slave party lost the Civil War and the US Constitution was changed in a way that prohibits discrimination more generally.

What the hell is this, Brad? I have a lot of respect for you, but this is the stupidest thing I've ever seen on your site. Many people will miss the "joke", and even if they don't it adds nothing to the discussion.

James,

Let us examine two possibilities.

1. Brad has accidentally inserted the word race, or racial instead of gay or homosexual about twenty times.

2. Brad is making a point by deliberately doing it.

Which is it? Me thinks 2, not 1.

My compliments on a fine conceit. Beautifully done.
FWIW (virtually nothing, which does not stop me from using up bandwidth), my own view, following Gary Wills and others, is to consider that there have been at least two "Constitutional Moments" equal to the founding: the Civil War and the Depression. In the former there were explicit amendments; in the latter it's crystal clear there would have been had the Court not backed off.
I've always wondered why Original Intent wouldn't overturn Marburry vs. Madson. I'm sure Scalia has an explanation. Depressingly, he's a very smart man.
And what the Founding Fathers would have thought about a woman and a Afro-American on the court...

>>Brad has made a Freudian slip>>

James - you gotta read the headline, not just the text of the post.

Scalia is an ideologue and a hypocrite who wants to substitute his own views for settled constitutional law and rules of construction. For example, he's for states' rights when states want to do something regressive or the feds want to do something progressive, but doesn't raise states' rights when the states want to do something more liberal.

OK Guys - This is "In An Alternate Universe". . .

Get it?

For those of you not following the bouncing ball - the Yahoo! News is in that same Other Universe - but makes the point about Scalia's gay marriage comments rather elegantly. Since there WERE actually folks back when the Constitution was penned who thought interracial marriage was as "unnatural" as contemporary Bible thumpers now view gay marriage, Brad is playing with that fact and attempting (in vain it seems for some of us) to help us, his devoted readers, to see the absurdity of Scalia's gay marriage rant. If we would now view the Alternate Universe view of interracial marriage as anachronistic (and irrelevant), what prevents us from seeing Scalia's actual comments with the same clarity?

All righty then...let's all go get that extra large cup of expresso...

Evidently in this Alternative Universe there are no 13th thru 15th Amendments, in which case this Alternative Scalia is of course entirely correct.

And this correct Constitutional interpertation is entirely consistent with any personal view he might have that inter-racial marriage obviously should be legal as a matter of justice / morality / policy.

Funny Jim, I thought interracial marriages were held to be illegal long after the 15th Amendment was passed. In fact, if I recall correctly it took 100 years for the USSC to get around enforcing those amendments. And, also if memory serves me right, there is no 'right to interracial marriage' in the Constitution, that was an interpretation of the USSC. Just like the interpretation about privacy.

Which tells me that the Constitution mostly means what the USSC wants it to mean.

So, given that, I think Brad's point is perfectly valid.

Throw out the original meaning of the Constitution when it suits them? Is this not what the majority did in Bush v. Gore? I guess the meaning of Constitution matters not when Scalia has a chance to select a President - even if the citizens of Florida really voted for the other guy. The man lost any ability to critic anyone else with a straight face when the Court made this illogical decision.

Though I think Brad's argument does work - it simply isn't logically tenable to argue that a ruling goes against the constitution simply because "it's been this way for hundreds of years" - I also think he ought to be wary of making a logical error of his own, that of the "faulty analogy."

Interracial marriage and consensual homosexual sodomy aren't at all analogous, beyond the fact that they are both personal decisions freely entered into between willing parties. One can argue, as libertarians (and I do), that all decisions in the personal sphere should be out of the government's hands to police, but the reality is that there are many other personal decisions between private parties that the government currently does enforce, and without much of an outcry from most of the liberal or conservative population, including drug usage and prostitution.

Scalia's appeal to past practice as a determinant cannot stand on its own feet, but at the same time, I think the ruling made in the Lawrence v. Texas case was flawed. Why didn't the court have the guts to recognize the right to privacy in all its' manifestations, rather than rhetorically hedge it around so that only homosexuals could enjoy its' benefits? If the court lacked the courage to face the ramifications of recognizing the right to privacy in ALL forms, why didn't it then simply go with the equal protections argument, striking down sodomy laws that unfairly singled out homosexuals (after all, most practitioners of sodomy in any form are heterosexuals)?

To do what the Supreme Court did was simply cowardly and dishonest, in my view, an attempt to legislate the moral preferences of a handful of judges without facing the backlash that might have ensued from taking a principled stand. In that respect, Scalia is onto something, though the means he takes to arrive at his critique are without logical foundation.

For a similar argument, see Samuel Marcosson, “Colorizing the Constitution of Originalism: Clarence Thomas at the Rubicon,” in the legal journal “Law and Inequality,” volume 16, page 429 (Summer 1998) (published by the law school of the University of Minnesota), which points out that had Clarence Thomas been on the Supreme Court in 1968 when Loving v. Virginia was decided, he would have been forced by his jurisprudential philosophy to rule that Virginia could have put Clarence Thomas in jail for marrying a white woman without violating the constitution. The article concludes, at pages 490-491 (citations omitted):

“It is undeniable that the ratifiers of the Equal Protection Clause would not have thought that Virginia was compelled to recognize Clarence Thomas' marriage. Under his oft-stated constitutional vision, Thomas' claim to legal recognition of his marriage is no more constitutionally valid than Keith Hudson's claim not to be brutalized in Louisiana's prisons, or Jane Roe's claim that Texas should not dictate her decision whether to take her pregnancy to term, or Tom Foley's claim not to be subject to term limits imposed by the state of Washington, Michael Hardwick's claim to be left alone in the privacy of his Georgia bedroom. The Justice Thomas who would deny their claims would have to deny the Lovings' claim as well, and in so doing admit Clarence Thomas' own subordinate status in the colorized Constitution of original intention.”

I suspect Scalia would agree with this statement (from a certain old Supreme Court decision):

"The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted."

But of course, that philosophy of constitutional interpretation led the Court to the following conclusion:

"It becomes necessary, therefore, to determine who were citizens of the several States when the Constitution was adopted. And in order to do this, we must recur to the Governments and institutions of the thirteen colonies when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations. We must inquire who, at that time, were recognised as the people or citizens of a State whose rights and liberties had been outraged by the English Government, and who declared their independence and assumed the powers of Government to defend their rights by force of arms.
* * *
"They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics which no one thought of disputing or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.
* * *
"No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.

What the construction was at that time we think can hardly admit of doubt. We have the language of the Declaration of Independence and of the Articles of Confederation, in addition to the plain words of the Constitution itself; we have the legislation of the different States, before, about the time, and since the Constitution was adopted; we have the legislation of Congress, from the time of its adoption to a recent period; and we have the constant and uniform action of the Executive Department, all concurring together, and leading to the same result. And if anything in relation to the construction of the Constitution can be regarded as settled, it is that which we now give to the word "citizen" and the word "people."

And, upon a full and careful consideration of the subject, the court is of opinion, that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts, and consequently that the Circuit Court had no jurisdiction of the case, and that the judgment on the plea in abatement is erroneous."

See Dred Scott v Sanford, 60 US 393 (1856). It seems fairly clear to me how Scalia would have voted on this, given his judicial philosophy.

We establish confirmation here -- as if we needed it, because we don't, alas -- that some people read science fiction and understand what "alternate universe" means, and some people don't.

It's all about how you read. And view the universe. And it's possibilities.

Some people grok the idea of an alternative universe. And some people don't.

Some people get it. Some don't. Some read certain novels and stories and some don't see the relevance. What have they to do with the subject at hand?

Brad, I usually expect better from you. You don't see an issue when the Supreme Court substitutes its own policy preferences for something on which the constitution is silent? The Fourteenth Amendment invalidates most racial issues in theory, not that people had followed it all that well for its first hundred years.

That's why many on the right who oppose homosexual marriage are pushing for an amendment--the presumption historically has been that if the constitution doesn't mention it, it's up to the states to screw things up. That also includes really liberal states.

Finally, there's no better way to antagonize people than to use the courts to force policy preferences down their throats. Sometimes it's justified (enforcing 14th Amendment for instance when the legislature and executive ignored it) but this is a rare case. Bakke and Roe come to mind; they have unsettled and divided far more than they have solved.

Thanks for putting out the text of the Dred Scott decision. It's rather scarey, when you think about it.

Why didn't the court have the guts to recognize the right to privacy in all its' manifestations, rather than rhetorically hedge it around so that only homosexuals could enjoy its' benefits?

That's incorrect. The Court struck down all sodomy laws that criminalize private consensual conduct, whether between people of the same sex or opposite sex.

Loving v. Virginia wasn't decided until 1967. Until then miscegenation laws existed - and were enforced - in many states.

Scalia's tirade about the recent supreme court sodomy case would have applied equally to the Loving v. Virginia case. The legal principle he appeals to would identically apply.

That's the point brad is making.

well I'm sort of embarrassed as I was caught out by this alternate universe, I did consider that it was a mind-blowing statement for him to make, of course as I don't follow the Supreme Court that closely I was surprised that there had been a recent ruling legalizing interracial marriage - why would one be needed in this day and age I thought.

hard day at work is my only defense.

Brad's conceit of inter-racial marriage lets me wonder out about the extent to which both the decision to prosecute in the Lawrence case and the final judgement of the Supreme Court may have been influenced by the fact that what the police stumbled upon was not just sodomy, but inter-racial sodomy. I suspect the racial aspect to this whole thing was not insignificant, and that if it had been a couple of white men caught in the act, we would not be discussing this Supreme Court decision just yet because no prosecution would have been brought.

Bent,

Re-posts aside :) ... I think you're absolutely right.

Incidentally, those who argue that "only homosexuals" benefit from the Court's June ruling are either ignorant of the facts of the case or lack imagination.

>>The Fourteenth Amendment invalidates most racial issues in theory, not that people had followed it all that well for its first hundred years.<<

Ah, but you see, according to Scalia's canons of interpretation the Fourteenth Amendment doesn't invalidate laws against interracial marriage.

Brad DeLong

If you were to apply an "original intent" analysis for interpreting the 14th Amendment, then Loving was wrongly decided, because in the debates surrounding the adoption of that amendment, there were many, many explicit discussions about the fact that it would not sanction interracial marriage. One major problem with the "original intent" theory is that the American people of the 18th and 19th century were unabashed racists.

There's some wiggle room for Scalia, because Loving v. Virginia was decided under the 14th amendment equal protection clause, which weren't put into the constitution until the mid nineteenth century, whereas Lawrence v. Texas was decided under the 14th amendment due process clause, which also wasn't added until the mid nineteenth century but which directly echoed the 5th amendment due process clause which had been inserted by the original framers. It does break down, however, when you start looking not just at what the original framers thought but also what the 14th amendment's ratifiers thought, since it's obvious as a historical matter that they didn't intend to repeal racial miscegenation laws.

Anyone looking for legal consistency in Scalia's musings will be sorely disappointed. There's plenty of political consistency, but any legal theories constructed to justify his rulings are a sham, as he often shows (i.e. Bush v. Gore). His is Nixon's brand of strict constructionism, which is to say, constructing the constitution strictly against civil liberties and democratic processes when they disagree with his reactionary politics.

Uh, Chris, Scalia's supposed first principle of interpretation is to look at the "plain meaning" of the text. Relevant phrases of the 14th Amendment are "nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

So when you argue that "The Fourteenth Amendment invalidates most racial issues in theory", you are not only being insupportably imprecise for a purported advocate of limited government, you are imposing your own inclinations on the plain meaning of the text, which makes no reference to any racial, gender or any other differentiating characteristic in any of Section I.

If you look to the intent of the framers of the 14th Amendment, then you can't defend Loving v. Virginia. Trying to defend the Court's holding by saying that "not that people had followed it all that well for its first hundred years" just admits that you think the framers' intent was either wrong or not determinative. You've now disavowed both plain meaning and intent of the framers.

Either way, you've put yourself on the side of a living Constitution. Don't worry, you're in good company -- with John Marshall, Lincoln, Holmes, and John Marshall Harlan.

Well, one obvious and glaring difference between the two cases is that in Loving v. Virginia, there is at least an actual constitutional provision that can be cited: The Equal Protection Clause. (People may have misinterpreted that clause for several decades, Scalia would say, but the plain text should be controlling.)

Lawrence, on the other hand, conspicuously relies on the theory of substantive due process, which not only doesn't exist in the actual Constitution, but is the SAME theory that was used in Dred Scott. (Rea therefore has matters exactly backwards: Scalia, as an opponent of substantive due process, would have voted with the dissent in Dred Scott.)

Q: What do you call someone who is winning an argument with a liberal?

A: A racist.

When the bien pensing social democrats of the left coast are reduced to fabricating smears out of whole cloth, it's a good bet they are not only on the back foot, as the English might say, but really really despondent.

I don't see any provisions of the founding documents of the Holy Office that contradict Judge Scalia's judicial philsophy. Opus Dei meetings in which , Judge Scalia and his co-patriot Robert Hanssen discussed the finer points of Constitutional Law and Sacred Doctrine must have been a hoot.

Joe M., I assume you are not aware that Bolling v. Sharpe, which was the DC schools' counterpart case to Brown, was decided solely on substantive due process grounds. Because DC schools were at that time a federal responsibility (but the case applies to any federal provision of services), the 14th Amendment couldn't apply and the Court had to find a 5th Amendment substantive due process form for the equal protection argument used in Brown (and later in Loving).

And because Scalia (following Bork) argues that substantive due process is inherently evil and unoriginalist, his pretensions to consistency are unmasked. Of course, Scalia already admitted this by calling himself a "faint hearted" originalist for allowing equal protection to be used in Brown because of the moral importance of the case. But that's 20/20 hindsight -- when Bork gave his opinion on the Civil Rights Act of 1964 (an action of the elected branches, which so-called originalists purport to find the only acceptable way to approach these problems), he called Congress' ban on discrimination in public accommodations "a principle of unsurpassed ugliness."

Bucky Dent: Please to indicate where in the comments any poster called an antagonist "racist"? I find two uses of the word prior to your deployment of it. Neither is relevant in context.

Or was your "bien pensing" [sic] remark a clever way of admitting that the liberals were winning, not losing the argument?

>...indicate where in the comments any poster called an antagonist "racist"?

The initial post by Dr. DeLong is transparent in its inference.

>...Fat Tony is all despondent...When the thickheaded redneck coporatist Republicans of East Bumblefuck Texas are incapable of understanding...

And of course, someone has to prove Ann Coulter right, in her assertion that *after* race, liberals call their opposite numbers "stupid", because that's what you do when you're losing.

Wow, you guys know a lot about this stuff. I don't, but I do have a question.

I remember reading some time ago that Scalia, after spending the first four years after his appointment showing off his brain to the rest of the court, received something of a surprise when Souter arrived on the scene. Often, when he and Souter were on opposite sides of the argument, Souter would end up demonstrating a greater understanding of issues. Essentially, Scalia had been far from perfect all along, but the rest of the court was not up to noticing it. Souter was, and beat Scalia by doing (or having done) better research and devising better arguments.

So the question is, was that just the view of one court watcher, or is there some truth to it? I still hear that Scalia is smart and hear little about Souter, but that seems at least partly to be explained by a difference of personality and ideology, rather than intellect.

I know multiple postings are a rite of passage here and all, but isn't it possible some change sin the commenting software could be in order? This debate is taking on fugue-like qualities...

(And while we're at it, why does this page load so slow?)

K Harris, that's sort of my impression as well. But I don't follow the court like I used to.

You know what I think? I think someone at the White House told Scalia they weren't going to nominate him for chief justice. That means that he's free to say these sorts of things that would give him trouble in a confirmation hearing; and, it also makes whomever they do nominate look more moderate. Although I can't imagine that working for Thomas. I can't imagine them having the audacity to nominate Thomas for chief justice, but you never know. These people have a tin ear.

There was a time when I still respected Scalia. I don't anymore.

But I sure love me some Souter. And Ginsburg.

Uh, Bucky. The liberals won the argument. That's why Fat Tony is all despondent.

When the thickheaded redneck coporatist Republicans of East Bumblefuck Texas are incapable of understanding an analogy, it's a good bet they're not only dumber than a sack of hammers, as the person of average wits might say, but that they're really, really insane.

People interested in original intent ought to look at the text of the Fifteenth Amendment.

In effect, it does two things: I. Enfranchise former slaves, and II. Disenfranchises former Confederates. It seems that the authors shared my antipathy for those sons-of-bitches.

Unfortunately, they put in a provision for restoring the traitors' rights, which happened far too soon as the result of a dirty political deal. A damn shame.

>... they put in a provision for restoring the traitors' rights, which happened far too soon as the result of a dirty political deal.

My dim recollection of Lincoln's prescription for the post-war peace he did not live to see was to
"forgive and forget" the rebels, allowing them to keep much of their property (horses, guns) to expedite the South's economic recovery.

If I'm wrong, which I readily admit I may be, please enlighten me.

>>So even the Left thinks America isn't ready for a youthful black chief justice.>>

The left is not ready for a radical right-wing ideologue who appears to have little regard for settled constitutional law.

I'd guess the left is as fond of Thomas as the right was of Thurgood Marshall.

"So even the Left thinks America isn't ready for a youthful black chief justice."

So, if I had said the same about Scalia, would you have said that "even the Left thinks America isn't ready for a youthful white chief justice"? Just wondering.

I'm not, however, wondering whether you're an asshole. That's manifest.

>I'm not, however, wondering whether you're an asshole.

From your webpage: "I think that Dick Cheney is the antichrist."

Looks as if you have boundary issues.

"So even the Left thinks America isn't ready for a youthful black chief justice"

Some advice, bucky boy. One who is attemting to imply that his opponents are resorting to accusations of racism because they are losing an argument should not then play the race card himself, lest he look rather foolish.

BTW, what's up with the phrasing "even the Left"? Does that mean that the "Right", of which you seem to be a member, agrees with this proposition? I think you are the only one to note the color of Thomas's skin in this discussion.

Incidentally, Brad's analogy is clearly not meant to imply that Scalia is a racist, but simply that he is intellectually inconsistent. He takes the form of Scalia's argument and applies it to an argument which is no longer really supported by anyone, right or left, to show that it leads to an absurd conclusion. That's what we on the "Left" call "Logic".

Irony and satire clearly are difficult concepts.

What document founded America, the Declaration of Independence or the Constitution? Brad is smart enough to know that this is one of those controversial issues that people have been arguing about since 1789. It was the main split between the Federalists and the Anti-Federalists.

> Finally, there's no better way to
> antagonize people than to use the
> courts to force policy preferences
> down their throats.

I take you you mean no better way to antagonize _heterosexual_ people, or more specifically, bigots who can't see the people for the homosexuals, since your gay and lesbian neighbors have had sodomy laws forced down their throats for generations now, and they have exactly zero basis other then animus to justify their existance. But I guess it's alright to antagonize people when you outnumber them.

You think maybe that "e pluribus unum" is some kind of communist slogan or something...?

Brad's spoof got me thinking. Why don't we simply dispense with all the paraphernalia of a written Constitution and stare decisis? Instead of trying to divine the intent of the framers -- or for that matter the intent of the people we elected to make our laws -- shouldn't the Supreme Court just do what is right? Adjudicating a case is really quite simple -- all the court need do is ask "What would a liberal political order do?".... All that may all make sense in an alternate universe. But back home in this universe surely one of the defining elements of a liberal political order is process. How safe are our liberties when courts are free to set aside our laws unconstrained by anything other than their own vague intuitions of the right "liberal" outcome? I agree with Brad about the barbarity of anti-sodomy laws -- though in practice they were seldom enforced. But a liberal order is about getting the right results by the right process. Haven't we learned the hard way the truth of Milton Friedman's observation, "Concentrated power isn't rendered harmless by the good intentions of those who create it." I'll get my economics from Brad, but I'll shop elsewhere for my jurisprudence.

>I'll get my economics from Brad, but I'll shop elsewhere for my jurisprudence.

You miss the point. His economics is in service of his avowed "social democrat" agenda. Think you'll ever see him "prove" a case for a flat tax? For a meaningful curtailment of the State's reach? His critique of Hillary is not that she was wrong in wanting to nationalize health care, but that she went about it in a way that got the public's dander up.

Bucky, I was talking about the 15th Amendment, not Lincoln's opinion. Lincoln probably thought as you said, but the sons of bitches shot him.

And now the South is solidly Republican, but it still makes the SOB's mad when someone tries to put a Lincoln statue in Richmond.

>>Brad's spoof got me thinking. Why don't we simply dispense with all the paraphernalia of a written Constitution and stare decisis? Instead of trying to divine the intent of the framers -- or for that matter the intent of the people we elected to make our laws -- shouldn't the Supreme Court just do what is right?<<

That is what common law courts do, after all...

" . . .theory of substantive due process, which not only doesn't exist in the actual Constitution, but is the SAME theory that was used in Dred Scott. (Rea therefore has matters exactly backwards)"

Wrong. Not a word about substative due process in Dred Scott.

The principal holding of the case was that the federal court didn't have jurisdiction over the case, because Dred Scott, as a black, couldn't be a citizen--on the basis that the founding fathers never intended blacks to be encompassed within the word, "citizen." A secondary basis for the decision (we lawyers call this "dicta") was that the Constitution recognized slaves as property, and that none of the ennumerated powers contained in the Constitution authorized Congress to deprive a person of property simply because he took that property across a boundary between a state and a territory.

Joe M. I frankly am not sure you know what "substantive due process" means. It's a fairly technical concept, after all. Frankly, to a lawyer educated in constitutional law, people who claim "substantive due process" doesn't exist sound like flat earthers must sound to a geographer.

I haven't bothered to look it up, because the whole concept of "original intent" is quite silly -- you can cite anyone from the pertinent time period as a means of rewriting the constitution -- but I would be absolutely shocked if the original intent of the drafters of the 14th amendment intended for it to abolish anti-miscegenation laws.

Brad's analogy is absolutely dead on -- if you used the 1865 understanding of the 14th Amendment, Loving v. Virginia was wrongly decided. Americans in the 19th century were unabashedly racists -- even the liberals of that time period were racists.

"Irony and satire clearly are difficult concepts" for Bucky Dent.

"The Constitution is not the founding document of the United States of America--the Declaration of Independence is."

Neither, actually; the Treaty of Paris is. The Declaration of Independence was analogous to conception, the Treaty to birth, and the Constitution to - stretching the analogy a bit - a coming of age ceremony.

This is no quibble: the USA had no more claim to existence in 1776 than (say) the Confederate States of America at a similar stage of proceedings; the experiment could have ended at any earlier stage without actually coming to fruition.

A Founder's meta-intentions.

J. Madison concluding his discussion of constitutional interpretation -and explaining his belief that the National Bank was constitutional in 1817, even though he opposed it on constitutional grounds orginially:

Let it then be left to the decision of every intelligent and candid judge, which, on the whole, is most to be relied on for the true and safe construction of a constitution, that which has the uniform sanction of successive legislative bodies through a period of years, and under the varied ascendency of parties; or that which depends upon the opinions of every new legislature, heated as it may be by the spirit of party, eager in the pursuit of some favourite object, or led astray by the eloquence and address of popular statesmen, themselves, perhaps, under the influence of the same misleading causes.

It was in conformity with the view here taken of the respect due to deliberate and reiterated precedents, that the Bank of the United States, though on the original question held to be unconstitutional, received the executive signature in the year 1817. The act originally establishing a bank had undergone ample discussions in its passage through the several branches of the government. It had been carried into execution throughout a period of twenty years with annual legislative recognitions; in one instance indeed, with a positive ramification of it into a new state; and with the entire acquiescence of all the local authorities, as well as of the nation at large, to all of which may be added, a decreasing prospect of any change in the public opinion adverse to the constitutionality of such an institution. A veto from the executive under these circumstances, with an admission of the expediency, and almost necessity of the measure, would have been a defiance of all the obligations derived from a course of precedents amounting to the requisite evidence of the national judgment and intention.

from
http://www.constitution.org/rf/jm_18310625.htm

MADISON TO INGERSOLL, June 25, 1831 for the paper version.

I can't find the letter where he denies that senility was the cause of his change of mind on the bank. Maybe that one is not on the internet.

OOPS! Cancel that previous post! Justice Scalia has examined Madison's switch on constitionality of the bank and had decided that Madison is, like totally a original intention type of guy, and would never never never say that anything but the original intention of the drafters (as of X o'clock the day that the last state adopted the plan?) should ever ever enter into any thought processes on constitutionality.

Note to self: NEVER post or make a public peep on a constitutional law issue again -it's too many for me, as M. Twain would say.

Anyway here's the excerpt reporting Scalia's views. I can't figure it -and I give up and will only post on economics or facty stuff I know from reliable sources:

The highlight of the conference, however, was the presentation of an engaging paper on Madison's views of Constitutional interpretation by U.S. Supreme Court Justice Antonin Scalia.

By tracing Madison's involvement with the National Bank to illustrate Madison's views on Constitutional interpretation and his fear of despotic democracy, Scalia determined that Madison was an originalist since he would believe that the meaning of the Constitution should always be the same as when it was ratified. In his complex talk interspersed with humorous asides, Scalia further contrasted intentionalism from textualism and concluded that Madison, like Scalia, is a textualist. Scalia briefly mentioned some of the virtues of his Constitutional interpretation and declared that while textualism will not prevent tyranny by the majority, it will not facilitate it. An evolving Constitutional interpretation, however, will advance such a vice.

http://www.princeton.edu/~paw/web_exclusives/more/more_14.html

But in his 1831 letter, didn't Madison say the precedent (social and legislative -national, state and local, as well as legal) should detemine constitutionality? And isn't Scalia in this quote being more anti-majoritarian that J. Madison. Afterall Madison struggled with this majority rule versus potential conflict of rights problem for three decades and finally came down on majority rule trumping even property rights, if push came to shove, and society couldn't figure a way out of the dilemma. (That speech is on a site called The Founders' Constitution:
http://press-pubs.uchicago.edu/founders/)

I found the Scalia thing while looking for the letter where J.M. denies he is going senile in his change of mind on the bank. It was kind of sly and cute, if not downright funny. But look what I find!
I am sorry, I must have been wrong, I guess Madison's enlightenment English is just over my head -and maybe it is.

OK, that's it -no more consitutional law for me. Deep waters!

Universe to Brad! Universe to Brad! The hallmark of a liberal political order is that judges follow the text or intent of the law and precedent, not their own consciences, and not a standard as amorphous as the one you apparently favor. I agree that the anti-sodomy laws are barbaric -- and seldom enforced -- but a liberal political order is as much about how we get the right answers, not just getting the right answers. Once the justices of the Supreme Court have virtually unconstrained discretion to strike down laws enacted by our elected representatives, then we no longer have a democracy. We have at best a benevolent dictatorship -- run by a junta of lawyers. Haven't we learned the hard way the truth of Milton Friedman's observation that the "concentration of power is not rendered harmless by the good intentions of those who created it." I'm happy to take my economics from you, but I'll shop for my jurisprudence on other blogs.

Oops! I apologize for repeating myself. I thought my eloquence had gotten lost somewhere in cyberpace.
As for the common law, I had always understood it was about precedent -- and elaborating it to meet new situations. If common law judges do what's right rather than follow precedent, then they do so "interstitially" or by filling the gaps. Any more then they are out of line.

>> The hallmark of a liberal political order is that judges follow the text or intent of the law and precedent<<

No, the hallmark of a liberal political order is that all people have rights, among which are life, liberty, and the pursuit of happiness, and that governments are established to secure these rights.

No, the hallmark of a liberal political order is that all people have rights, among which are life, liberty, and the pursuit of happiness, and that governments are established to secure these rights.

Amen! But I thought our disagreement was over means, not ends. You apparently believe that these rights would be safe in the hands of an unchecked judiciary. I think that is naive. The founders shared my view. That is why they instituted a government of laws -- not of men with good intentions -- to secure those rights.

*" Brad's spoof got me thinking. Why don't we simply dispense with all the paraphernalia of a written Constitution and stare decisis? ... just do what is right"*

Well, *I* know what's right, so that makes good sense to me, but if you disagree with me about what's right you're wrong, of course.

"That is what common law courts do, after all..."

Hello? Stare decisis is the foundation of common law, the principle that enabled it to function without a written constitution.

It is the Continental European civil law courts that do not follow stare decisis -- and Napoleon made sure they have plenty of written rules to follow.
~~~~

*" The hallmark of a liberal political order is that judges follow the text or intent of the law and precedent"*

"No, [it] is that all people have rights, among which are life, liberty, and the pursuit of happiness, and that governments are established to secure these rights."

Good luck trying to secure those rights without a legal system that respects precedent. The principle that those in like situations should receive like treatment is pretty fundamental to justice. If every judge is free to treat people in like situations completely differently according to that judge's particular view of "what's right", well consider some of the views that are out there. Don't assume they are going to correspond with *your* views.

In like cases people should be treated very differently according to whether the judge who determines "what's right" is a sincere social democrat, libertarian, communist, religious evangelist? Or perhaps even an insincere elected/appointed political operative looking out for #1? And without stare decisis that's OK?

Also, good luck with protecting all those rights without constitutional protection of the rights of minorities against what majorities think of as "right" -- and even the rights of majorities against what disproportionately politically influential minorities think is "right".

Consider what some such majorities and influential minorities have thought of as being "right" in some times and places -- if only for a while, with them sorely regretting it later. Ouch. And remember how it is just about the easiest thing in the world to sincerely believe that what is in one's own self interest is the morally right course for everyone else to have to follow.

Justice Oliver Wendell Holmes pointed out a long time ago that constitutional law isn't about what's "right" and "wrong" it's about what's constitutional and not constitutional. And there are reasons for that. Other parts of the law are about right and wrong.

"A remarkable (albeit neglected) landmark in the recent history of American race relations was certainly that moment at which conservative Senators, some of whom were formerly staunch and militant segregationists, fought unstintingly for the confirmation of Clarence Thomas as a Supreme Court Justice, despite his marriage to a white woman.

"The other significance of _Loving_ today is that it helps to buttress the case for tolerating same-sex marriages...

"If Loving is any guide, proponents of same-sex marriage should not look to the Supreme Court for leadership, but should instead seek to persuade people on the grounds of the decency of their position. When the task has largely been done, the Court will come along to offer confirmation.

-- Randall Kennedy, Harvard Law School.
http://speakout.com/activism/opinions/3208-1.html

"A remarkable (albeit neglected) landmark in the recent history of American race relations was certainly that moment at which conservative Senators, some of whom were formerly staunch and militant segregationists, fought unstintingly for the confirmation of Clarence Thomas as a Supreme Court Justice, despite his marriage to a white woman.

"The other significance of _Loving_ today is that it helps to buttress the case for tolerating same-sex marriages...

"If Loving is any guide, proponents of same-sex marriage should not look to the Supreme Court for leadership, but should instead seek to persuade people on the grounds of the decency of their position. When the task has largely been done, the Court will come along to offer confirmation.

-- Randall Kennedy, Harvard Law School.
http://speakout.com/activism/opinions/3208-1.html

Rea said: Joe M. I frankly am not sure you know what "substantive due process" means. It's a fairly technical concept, after all. Frankly, to a lawyer educated in constitutional law, people who claim "substantive due process" doesn't exist sound like flat earthers must sound to a geographer.

OK, I spoke too quickly. What I should have said is that "substantive due process" is an oxymoron that ought not to exist. As John Hart Ely said on page 18 of his famous work Democracy and Distrust, "Familiarity breeds inattention, and we apparently need periodic reminding that 'substantive due process' is a contradiction in terms -- sort of like 'green pastel redness.'" It's a quote that has been often repeated in the law review literature; but since you're a lawyer, you probably already know that.

The passage you seem to have missed from Dred Scott is this one:

[quote]Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. [/quote]

It is this passage that has led numerous scholars to identify Dred Scott as the first use of substantive due process. See, e.g., Paul Finkelman, Teaching Slavery in American Constitutional Law, 34 Akron L. Rev. 261, 274 (2000) ("With the exception of one New York case, Justice Taney's opinion in Dred Scott is the first use of substantive due process."); John Hart Ely, The Apparent Inevitability of Mixed Government, 16 Const. Comm. 283, 289 n.30 (1999)("Dred Scott was also the first Supreme Court decision to invoke the documentally unprovided, for that matter oxymoronic, doctrine of 'substantive due process' . . . .); Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26, 123 (2000) ("But given that the origins of substantive due process doctrine are not particularly admirable - Dred Scott and Lochner haunt this swamp - perhaps we can do better."); Michael W. McConnell, A Moral Realist Defense of Constitutional Democracy, 64 Chi-Kent L. Rev. 89, 101 (1988)("Chief Justice Taney, however, apparently concluding that the prohibition of slavery is in violation of natural right, invoked a constitutional principle that was as unprecedented at that time as it is notorious today: substantive due process.").

By the way, all of the above are well-known constitutional scholars. Finkelman teaches at Tulsa; Ely has taught lots of places, including Stanford, if I recall; Amar is at Yale; and McConnell was at Chicago and then Utah, and is now a judge on the 10th Circuit. All are highly respected, and all but McConnell are fairly liberal. But since you're a lawyer, you probably knew that.

OK, I promised myself not to... but I will venture into this topic again...
The Founders themselves said that the Bill of Rights does not exhaustively enumerate all the rights that the people retain. It only enumerates the most important for maintaining a free society. So how can there be a "letter of the law", or a binding legal precedent, or reams of Napoleonic code, or anything that will send a judge down the appropriate algorithm of legal reasoning to determne whether a right exists, or how similar a current dispute over a right is like a previous dispute, or whether a legislature has overstepped its bounds in passing a law with restricts that right, or whether a previous judge blew the decision which should be overturned?

Prof Brad seems most sensible as well as most in agreement with original intentions to me. Of course that leads into the murky realm of Madison's advice on constitutional interprestation, a taste of which you can see in his explanation of the about face on the bank. But that's another matter.

I welcome your advice.