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A Clash of Constitutions

The Senate hearing on the nomination of Amy Coney Barrett to the Supreme Court shows that we effectively have two different Constitutions today, because the interpretive methodologies of Democratic and Republican political actors diverge so dramatically. Republicans embrace originalism as a mode of interpretation. Democrats aspire to a method that bends the Constitution toward “the moral arc of the universe” where that arc traces the parabola of progressive politics.

The implications of this divergence are profound both for the nation and for academic debates over originalism. We are in a period of political polarization unprecedented since at least the New Deal and probably since the 19th century. Successive waves of partisanship have now engulfed our fundamental document, threatening a kind of legal instability we have not seen in the last 150 years. It will likely get worse, particularly if Democrats go through with threats of court packing, which will inevitably beget more and more court packing, turning our highest tribunal into something more resembling the British House of Lords. Academically, the dramatic divergence shows that the positive argument that originalism should be followed simply because it is our law is inadequate because high officials do not agree on the rule of recognition—that is, the standard by which we determine what constitutes constitutional law.

One Hearing, Two Constitutions

The hearing was, of course, full of the posturing and cynical maneuvering that politicians bring to any televised event, particularly one so close to an election. But it was genuinely illuminating on the parties’ professed approach to interpretation, even though those approaches would be applied inconsistently by many politicians. The Republicans all affirmed some version of originalism or suggested following the Constitution as written, sharply separating law from politics and policy.

The Democratic Senators on the Judiciary Committee, in contrast, have never been as explicit in simultaneously rejecting originalism and embracing an expressly progressive jurisprudence. Perhaps the reason was that the jurist closest to an avatar of progressivism on the Court—the notorious RBG—had just died. Senator Mazie Hirono called her “our champion.” Other Senators used her legacy to describe the kind of constitutionalism they favored. Senator Whitehouse noted that she “bent the arc of the moral universe toward justice for all Americans.” Senator Amy Klobuchar talked about how Ginsburg had moved America forward and that confirming Amy Barrett would move America backward. These comments are typical progressive tropes for legislation, but here they are applied to constitutional interpretation: Constitutional meaning is not found by studying the past, but by projecting a glorious progressive future.

Other Senators were more explicit in their critiques of originalism. Senator Chris Coons said originalism would roll back important constitutional commitments to liberty and privacy, and implied it would create a polity unrecognizable to “most Americans.” Recall that at the last hearing of a justice nominated by a Democratic President, Elena Kagan said “We are all originalists” without any pushback from Senator Coons or from any other Democrat.

Most Democrats’ lines of questioning were also unapologetically policy-oriented—so much so that at times the confirmation hearing resembled one on health care legislation. Picture after picture of an American with a disease that Democrats claimed only the Affordable Care Act had enabled to be cured was shown on national TV. Of course, this focus was prompted in part by electioneering, but it also implied a kind of jurisprudence—one in which good consequences (where good is defined by a progressive ideology) should guide the resolution of constitutional cases.

Even Senator Sheldon Whitehouse’s wacky theory that the judges nominated by Trump were the result of a conspiracy by a group of wealthy donors led by the Koch brothers makes some sense in progressive constitutional iconography. If the universe has a moral arc that the Constitution should follow, only evil interests could be holding back its natural ascent.

Just as we will no longer hear that the “era of big government is over” from a Democratic President, we will not hear that “We are all originalists now” from a Democratic Supreme Court nominee.

This complete division in jurisprudence foretells a bumpy road ahead for the Court and the nation. It is a difference that cannot be papered over by some methodologies that might, if consistently practiced, have once promised greater cross-party agreement. Originalism is not a jurisprudence of judicial restraint, but one that gives effect to the Constitution’s meaning, at least when original methods allow judges to come to a clear and convincing resolution on that meaning. And progressive jurisprudence, as Democratic Senators see it, encourages restraint only when the legislative objectives are progressive. Nor is progressive jurisprudence interested in protecting precedent generally, only progressive precedent. At the hearing, Democrats clearly wanted Roe v. Wade to be retained, but many other precedents, like Shelby County v. Holder and Citizens United, overruled, because of their bad (from a progressive viewpoint) results. The question of what role precedent should play in an originalist jurisprudence is an unsettled one, but originalists are generally agreed that it must take a back seat to original meaning in many instances.

Democrats who justify court packing often do so because of the claimed unfairness of the process that did not confirm Merrick Garland and yet is about to send Barrett to the Supreme Court. But the real reason is the jurisprudential chasm that divides them from many, if not a majority, of the originalist justices now on the Court. At a time when progressives are in the ascendancy in the Democratic Party, the Court in their view is an intolerable bastion of reactionaries who look to the past for their principles. And even if, as is likely, court packing cannot make it through Congress, if elected, Biden will nominate justices much more committed to progressivism than most Democratic nominees in the recent past. Just as we will no longer hear that the “era of big government is over” from a Democratic President, we will not hear that “We are all originalists now” from a Democratic Supreme Court nominee.

Justifying Originalism

The clash of constitutions displayed at the hearing also has implications for the debate about how we ought to justify originalism. Will Baude and Stephen Sachs, two excellent young scholars, have suggested a positivist basis for originalism. According to their argument, we should follow originalism because it is the law in the sense that the great positivist H.L.A. Hart meant law. That is, originalism is the rule of recognition by which officials determine the law. To be sure, Baude and Sachs concede there may be disagreements about exactly what originalism requires, but they claim that there is a consensus in its favor among judges. They support their views largely by reference to Supreme Court opinions where they argue that justices—even modern left-liberals—gesture to originalism. Mike Rappaport and I have both criticized this argument, suggesting that in many important cases, justices fail to make good-faith efforts to follow originalism.

But judges are not the only officials responsible for determining the content of the Constitution, as Baude concedes. Legislators and presidents are also high government officials who make such determinations all the time, and who implicitly or explicitly embrace a rule of recognition. And the rule of recognition guiding the important officials of the Democratic Party today is emphatically not originalism. This sociological fact (and the Hartian view of law is ultimately rooted in such facts) also counts heavily against the notion that there is an official consensus in favor of originalism.

That lack of consensus does not mean we should abandon originalism. Originalism is certainly an important contender for the rule of recognition, as Michael Ramsey has observed, and the Supreme Court has at times in our history regularly followed it. But to justify originalism as the strongest contender we need to appeal to normative arguments of the kind that Mike Rappaport and I and others have made. Originalism is the best rule for interpreting the Constitution, even if some diverge from it.

The difference between our parties on this fundamental issue for our fundamental law makes such normative appeals even more important. They are the kind of arguments that may help restore a consensus for originalism and make the Constitution more of an anchor of stability than a source of partisan animosity.

Reader Discussion

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on October 22, 2020 at 08:05:31 am

The universe's, as with progressivism's, "moral arc" is in the steadfast direction of entropy and Darwin's survival of the fittest conceived along leveling, socialist and in the end totalizing - totalitarian lines - i.e. a mutated form of social Darwinism.

Absent normative standards essentially involving natural law, natural rights and such as a well founded conception of originalism can provide, that is what will ever be in the offing.

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Michael Bond
on October 22, 2020 at 08:39:43 am

“We are now standing in the face of the greatest historical confrontation humanity has gone through. I do not think that wide circles of the American society or wide circles of the Christian community realize this fully. We are now facing the final confrontation between the Church and the anti-Church, of the Gospel versus the anti-Gospel. This confrontation lies within the plans of divine Providence; it is trial which the whole Church, and the Polish Church in particular, must take up. It is a trial of not only our nation and the Church, but, in a sense, a test of 2,000 years of culture and Christian civilization with all of its consequences for human dignity, individual rights, human rights and the rights of nations.”

The implications of this divergence are profound both for the nation, and for The Deposit Of Faith, as Revealed to us from Jesus Christ Himself, in the trinitarian relationship of Sacred Tradition, Sacred Scripture, and The Teaching Of The Magisterium, grounded in Sacred Tradition and Sacred Scripture.

Woe to those Baptized Catholics who deny that God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage, “For to whom much has been given, much will be expected”.

Woe to all those who desire to render onto Caesar, what belongs to God, The Most Holy And Undivided Blessed Trinity, The Author Of Love, Of Life, And Of Marriage, and thus The Author Of our inherent unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, the purpose of which can only be, what God intended.

“When God Is denied, human Dignity disappears.” - Pope Benedict XVI

And when human Dignity disappears, anything can become permissible, including the destruction of a beloved son or daughter residing in their mother’s womb, or the reordering of man according to sexual desire/inclination/orientation, which sexually objectifies the human person, in direct violation of God’s Commandment, regarding lust and the sin of adultery, while denying the essence of being in essence, a beloved son or daughter, through the condoning of sexual acts, that regardless of the actors or actor’s desires, including if the actors are a man and woman, united in marriage as husband and wife, are demeaning, and thus are not and can never be, acts of authentic Love.

To be an originalist, is to first and foremost, desire to Render onto God what belongs to God, and thus to affirm Divine Law.

God Is The Author Of Love, Of Life, And Of Marriage, but we get to choose our own destiny.
Thank God, It is possible to have Liberty and a Happy Death.

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Nancy
on October 22, 2020 at 08:59:03 am

And I'm sure that Francis the Fake Pope agrees:)

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paladin
on October 22, 2020 at 08:53:49 am

How disappointingly underwhelming!
In reply to the analytically jejune McGinnis, I offer the lyrically prosaic Peggy Lee:
"Is that all there is?
Is that all there is?
If that's all there is, my friends, then let's keep dancing.
Let's break out the booze and have a ball
If that's all there is."

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paladin
on October 22, 2020 at 10:09:34 am

In re: Preaching to the converted, here is another offering:
https://www.powerlineblog.com/archives/2020/10/liberals-confirm-they-hate-the-constitution.php

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gabe
on October 22, 2020 at 10:22:04 am

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

theatlantic.com/ideas/archive/2020/10/could-third-amendment-protect-against-infection/616791/

A small sampling of the constitutional idiocy apparently inculcated into young Doctor of Law students today and indicative of the "illness" of Democrat politics:

"The final text does not mention disease, but the text of the amendment has not been an impediment to expansive (albeit controversial) interpretations in other regards. In 1965, the Court, in Griswold v. Connecticut, cited the amendment to find an implied constitutional right to privacy, and similar reasoning could be used again. Yet if the Third Amendment may have something to do with a right to be free from infection, what exactly is that right? Construed most narrowly, the amendment might merely imply a right to be free from having a specific category of people who might carry diseases forcibly pushed into one’s house without consent. But broader interpretations are possible. The amendment could be interpreted to include other governmental actors, and house could be understood expansively. The broadest interpretation might recognize a general right to be free from being forced to come into close contact with diseases. Since the Founders’ world looked tremendously different from our world today, the question is where to draw the line: how much to limit the amendment to a narrow interpretation of its text and how much to prioritize the broader rationales at its foundation.

A broad interpretation presents substantial dangers and limitations. The Supreme Court hasn’t yet decided whether the amendment applies to state and local governments. Recognition of a fundamental right to be free from forced close contact with disease vectors might shift discretion on important public-health issues from the hands of lawmakers and administrators to judges, who may be less democratically accountable or qualified to make these decisions. Perhaps too murky and open-ended to put into practice, such a right might also create a slippery slope for recognizing other “rights.” And whereas the Court in Griswold relied on multiple constitutional provisions to find an implied right to privacy, the Third Amendment on its own may not be enough to establish a right to be free from infection.

Still, even if no such right exists in an immediately useful form, the amendment’s history offers vital lessons. It reveals [ does it now, really?] that DISEASE PREVENTION [my caps] was actually built into the Constitution [whose constitution?], furnishing judges and lawmakers today with a constitutional anchor to weigh when balancing competing societal interests.
"

Now this is, in MY sense of the word, CLEVER!

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gabe
on October 22, 2020 at 11:46:30 am

Does commenter Gabe challenge the LawProf's claim that the logic of constitutional law moves left and does commenter Bond parody the notion that the path of morality winds left, and do both challenge President Obama's claims that the arc of history bends left and that he can stop the seas from rising?

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paladin
on October 23, 2020 at 09:26:37 am

I have no problem with that parodic interpretation. Though more simply I was comparing the universe's entropy** together with Darwin's conception*** with progressivism's moral entropy and moral evolutionary dissolution/debasement.

Philosophically, natural law, absent any consideration of the part mind plays in the consideration of that nature, would pretty much have to be considered along such impersonal, unsympathetic and brutal lines. But mind, psyche, is a factor, however and variously problematic, in the natural realm. As such, natural law and natural rights, philosophically understood, gain a substantial speculative foothold. Hence that philosophical venture can be furthered, e.g., here at L&L, Natural Law, Natural Rights, and Private Property. Or Pierre Manent's Natural Law and Human Rights: Toward a Recovery of Practical Reason (a mere hundred and a few pages, but remarkably probative and illuminating).

So, rather belabored now, but that is what I was suggesting in more abbreviated terms above. And again, these are philosophical considerations only, leaving out wider anthropological considerations.

** universe: conceived in purely phyicalist terms

*** Darwin: "red in tooth and claw" or, applied strictly to the human sphere, homo lupus homini - man preys upon man as a wolf. In either case reflecting the impersonal and unsympathetic brutality of it all.

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Michael Bond
on October 22, 2020 at 12:10:09 pm

I would say instead that the Democrats want the SCOTUS to act as a House of Lords. A legislative branch appointed for life (by them) and insulated from the will of the electorate.

As long as they got their way, there was nothing wrong. Now that this exalted and untouchable legislature is beginning to bend towards the other side of the aisle, they start questioning everything, including the Constitution itself.

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Ann in L.A.
on October 26, 2020 at 19:46:04 pm

No, what the Democrats want is the complete removal of any impediment to enacting any law that pleases them. Fundamentally, they want absolute control over America, without the slightest deference to American history, culture, or heritage.

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Henry Miller
on October 22, 2020 at 12:24:43 pm

But might not the Third Amendment be deemed to protect us against the intrusion of the Arc of History into our homes?

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cmcc_aus
on October 24, 2020 at 20:28:34 pm

Since we are soon coming upon Halloween, it is safe to say that the arc of history is only a ghost, and nothing of substance. The Third Amendment can be INTERPRETED to protect against unwanted housing of soldiers (as agents of the state), but can only be "deemed" to protect against unwarranted intrusion of legislation and judicial decisions (other agents of the state) via our "sovereign representational consensus". In any case, that protection is only present in times of peace, and we are in or close to times of war where the law (our laws?) may work against us (and the common law culture of a man's house is his castle). [And if perchance your comment was meant to be sarcastic, I am afraid it left only a pale ghost of a presence for me, to justify this disclaimer.]

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R2L
on October 22, 2020 at 12:52:23 pm

CMCC / Paladin:

The Third not only protects us against the Arc of History but it also mandates that sandbags be provided for every door threshold to mitigate those seas that the Great and Wondrous One was supposed to have lowered.

Me, I've got my waders on as i tiptoe gingerly so as not to disturb the wonderful Syrah I have in my glass.

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gabe
on October 24, 2020 at 20:35:32 pm

"que Syrah Syrah" ?? But we will need more than waders to counter the tsunami of sewage, rather than sea water, that has been unleashed by the Gramscian earthquake (as you recognize ON OCTOBER 23, 2020 AT 12:50:43 PM.)

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R2L
on October 22, 2020 at 19:12:31 pm

Oh yes. Sheldon Whitehouse was so wacky. How could 250 million dollars possibly have any influence on our courts. How indeed.

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Albert Greenberg
on October 23, 2020 at 01:28:05 am

For the sake of argument....

1. Andrew Breitbart claimed that politics is downstream of culture. Perhaps Constitutional interpretation is likewise downstream of culture.

2. The basis for Griswold v. Connecticut and Roe v. Wade was supposedly the right to privacy. This was the claim in the written opinions, despite the fact that what was clearly at issue was a conception of liberty, not privacy. Even Ruth Bader Ginsburg thought that the privacy rationale was a stretch, and it was not until a couple of decades later that Justice Kennedy was bold enough to say that statutes that purport to control sexual conduct have to be evaluated against the concept of liberty, not privacy. The reason why the original decisions were couched in privacy terms, i.e. the concept governing Constitutional interpretation, was cultural. It was simply not culturally acceptable to claim that non-traditional sexual behavior was a matter of liberty. The culture was not receptive to the arguments that gained footing several decades later: gay marriage, pheontypic males competing in girls athletics, polygamy, ephebophilia, etc., etc. When Gorsuch wrote the opinion in Bostock he ignored the fact that the culture in the United States in the 1960s was far different than it is now, and the attempts to ignore that fact by claiming to apply "originalist" principles was unconvincing. Again, Constitutional interpretation is downstream of culture, regardless of what doctrine is supposedly applied to the process.

3. Mr. Bond....Michael Bond makes the decisive observation: the arc of history is toward entropy, not ideals, wishful thinking or fairy tale endings. This is a corollary to a surmise I have advocated previously: that everything on earth changes according to its nature, even when those changes are affected by external influences. When we speak of culture, the relevant concept here is mores. Kennedy and Gorsuch could write the opinions that they did, identifying principles that were surely not contemplated by the drafters, because the culture had changed and this was because mores had changed.

4. Mores change according to their nature and their interaction with society and the world. Various things influence this including things like the economy. To illustrate this, it may be helpful to consider two types of economic activity, that which is the result of doing necessary things, and that which is associated with doing derivative or not-particularly necessary things. Farming is a necessary thing. One hundred years ago mining and steel production were necessary things. Back then a larger percentage of the workforce was employed in the necessary part of economic activity than in the not-as-necessary part. Fewer people went to college to end up as baristas, or gig workers, or coders for entertainment apps. The important point is that the mores that were required to succeed in a necessity-driven economy are naturally different than those where you can stay on your parents' health insurance until you are 26, or take 7 years to get a bachelor's degree. Furthermore, different mores develop when wives, in what were once called "marriages," become "baby's mamas" in what are now indulgent psychological dramas. Economic factors, security threats, political instability and corruption, new technology, demographics, etc. all influence mores. At the moment, the historical forces that made narcissism and self indulgence impractical in a world where "getting by" meant not starving to death, are waning. Into the void comes people like Ibram X. Kendi, and the new Marxists, to demand that a new culture replace self-reliance with grievance, merit with "equity," reason with ideology and community bonds with unending racial discord. Mores change when times change, culture changes when mores change, and even things like Constitutional interpretation reflect the fact.

5. This is not to suggest a laissez faire approach to cultural issues. Certainly people like Nancy and Gabe and Mr. Bond...Michael Bond can assert that enduring mores are based on unalterable truths. Commenters like Phil Beaver may dissent. Whatever the case, it sometimes happens that societies wander away from mores and cultures that had been, and would continue to be, beneficial if only they could remain fashionable. When this wandering away happens, well, we get stories of golden calves, and people turning to salt, fifth century Rome, and Germany in 1933.

6. Decadence and the decay of mores and morals is not inevitable. The ideas that economic, political, and technological factors inevitably have a detrimental effect on culture is not written in stone. Cultural fortunes wax and wane in cycles. The necessity and wisdom of certain mores, customs and manners are sometimes only learned the hard way. There are two main reasons for this: one is that a culture must be treated as a living thing. It must be nurtured and tended and stewarded, and when it is not, it becomesderelict. As noted in the first comment here, entropy takes over. The second reason is the idea that, because everything has a nature, that nature describes what we would consider truths. Truth is that which is consistent with nature. This leads to a paradox that is at the heart of every civilizational collapse and fraying culture: accepting truth requires a measure faith, but not just any faith in any idea or desire. It requires faith in the idea that human life is never an ordinary thing.

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z9z99
on October 23, 2020 at 12:50:43 pm

Z:
"Another fine mess [you have shown that we have gotten ourselves into], Stanley."

There is much to be taken from this, not the least of which is an appreciation of the factors affecting culture and Law and ultimately the fate of civilizations. This is not an overstatement. Yet such civilizational change, in many instances, decline, is not as you say:

"Decadence and the decay of mores and morals is not inevitable"

Consider China, a nation that as a result of millennia of central bureaucratic governmental (Imperial Palace) dominance and control, owing to the requirements imposed by natural conditions, topography and hydraulics has historically been engaged in a "necessity" based economy, has imposed some of the most draconian and inhumane policies and mechanisms to sustain itself, its bureaucracy and most importantly its people. Sometimes wisely, at many times foolishly it has attempted to induce or inculcate changes in mores; such changes however have been noticeable in the more superficial / less fundamental mores. The most salient and most recent has been Mao's Cultural Revolution - a failed enterprise at best.
Until recently, China struggled to sustain its population and status.
Yet, after chou EnLai's reforms and not without the assistance, willing and inadvertent, of the West, China now presents hersel as a major world player.
Let us consider, how china does NOT fit the paradigm of "less necessity, more liberty."
Briefly, China has ruthlessly applied new technology to suppress any nascent expressions of liberty. (See David goldman's numerous essays in Asia Times for details). Using all manner of techniques such as facial recognition, cellphone tracking and video monitoring, China has shown that it is possible to delay, if not derail any upsurge in "liberty."
I mention this ONLY to remind the reader that it is possible to forestall such transformation of mores and their consequent behavioral expressions, if one is determined and ruthless enough.
Clearly, this is not an approach that we in the West (at least not yet) would encourage.
Yet, there is something hidden, or perhaps simply latent, even in the chinese environment.
On Twitter, it is called an "influencer" (or so I am informed). I'll not detail the manner of chinese "influencers" but it is ubiquitous AND self imposed / self generating as well.
Rather, I wish to speak to the "influencers" in the West, particularly in the USA.
While it is correct that the 1960's did not support behaviors or attitudes that may be said to be reflective of a full appreciation / commitment to "liberty" and the current milieu may so reflect it, one must ask, "How is it that this came to be embraced?"
I agree that both the behavioral and epistemological ground for such a transformation of mores was a) present, if only in nascent form and b) conditioned by the lack of "necessity." Further, "baby boomers" were afforded far more latitude, and enjoyed far greater material comfort than did their parents who having experienced the horrors of war were far more willing to "let the kids live and enjoy themselves, ya never know when they will be called upon as we were." (BTW: Actual (paraphrase) quote of a WWII construction co-worker of kine from the 60's). He was not unique.
YET - the transformation from WASPy, somewhat restrictive mores DID NOT occur - at least not for some decades.
It required "Influencers". They were to be found in the universities and colleges of the nation. No need to detail the changed nature of study and discourse between my education in the 60's and that available today. Can there be any question that this influence has played in major role in transforming mores?
Add to that the additional consideration that during the 1960's, teachers were granted a draft deferment. One wonders what was the effect of tens of thousands of these 'deferees" on the teaching of American History, philosophy and, yes, mores. Is it not inconceivable that as an ongoing post-facto justification of their decision to avoid military service that they would "nuance" the teaching of American history and traditional mores in such a fashion as to justify their own self benefiting choice?
This "influence" as in china was, and is, both ubiquitous and self generating, if no longer so directly self-benefiting and has had remarkable success in transforming the views, thinking, philosophy (if one can characterize muddle headed, misinformed pie-in-the-sky fantasies as such) of several generations of youth.
More regrettably, it has also transformed the epistemology / philosophy of the Legal profession. As you say, law follows culture. Gorsuchization, as in Bostock, is "brought to you by" the same influencers that have brought you North American Man Boy Love Association, Tranny rights, Equity over Merit, BLM, etc etc. The sponsors of this radical new (and ghastly) entertainment is Academia. Its influence is so pervasive as to have convinced an otherwise believer / practitioner of "original" understanding that words are infinitely malleable as are the cultural understandings of the day.

Why this long digression?
It is apparent that this culture will not tolerate the coercive measures that China has deployed to contain any upswelling of liberty. We do, however, have some recourse. We also may serve as influencers - IF we have the heart, determination and the resources to do so. We may combat these idiotic, end-state fantasies of Leftist Nirvanas by refusing to yield to falsehood, sophistry, and "cancellation."
We, too, desire liberty; but we must present Liberty as ordered Liberty - not something grounded only in the changing meaning of "words" or the ephemera presented as lasting truths only to be exposed as "hurt feeling" or grievances. We must contest the monopoly the Left has on education, the MSM and social media.
It is not simply the "end of scarcity" or "necessity" that has changed the face of America. It is the creation of manufactured grievances and sins of America and the denigration of traditional Judeo-Christian beliefs and principles that has induced, if not compelled, such changes.
Are we not confident enough in the validity of these traditions?
Will they not resonate with reasonable people.
Never give up, never ever ever give up.
Ole Winnie was right.

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gabe
on October 24, 2020 at 21:42:42 pm

"Cultural fortunes wax and wane in cycles." Suggesting that the arc of history is less a logarithmic curve approaching an Obama statist nirvana than a sin wave, which may in fact more often whine than rhyme.

Whether you intended to or not, your comment is supportive of the assertion I have made before that our morality (or mores) is in fact a combination of our innate, genetic, psychological characteristics and our cultural influences. I bring out this cultural element to alert us to just how fragile our moral positions (and thus our political positions) can be if we cannot define and maintain our cultural arguments with sound logic and other forms of persuasion.

"1. Andrew Breitbart claimed that politics is downstream of culture. Perhaps Constitutional interpretation is likewise downstream of culture." Except if original-ism means finding the meaning of the legal language as used and meant by the people at the time of ratification, then we must also apply the context and culture and mores of that time as well. The Framers provided a (perhaps overly difficult) means to amend our core document so that we could address changes in culture and mores if/when required (while hopefully retaining the virtuous condition Mr. Adams admonished was necessary). This is why I now believe we need an amendment that mandates a convention of the states every 50 years or so, to overcome this difficulty in their initial version and to ensure we can address those (almost inevitable?) changes or "adjustments" in culture and mores that you describe so well. The post CW amendments and the progressive era amendments were clearly in response to changed mores, and so we (I gather) try to interpret them in the context of their ratification dates and the mores extant at those times. At least they were formally ratified amendments and not pronouncements from on high by SCOTUS (Roe, etc.).

Please consider this a complementary and complimentary endorsement of Gabe's reply, and his call that we must also become counter influencers "IF we have the heart, determination and the resources to do so. We may combat these idiotic, end-state fantasies ... [and to] present Liberty as ordered Liberty - not something grounded only in the changing meaning of "words" or the ephemera presented as lasting truths only to be exposed as "hurt feeling" or grievances." The road to liberty (R2L) requires that we face reality (cultural, moral, historical) and accept responsibility to meet it for the continued benefit of human flourishing.

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R2L
on October 25, 2020 at 22:52:44 pm

R2L,

I agree with your second paragraph, and think that it helps explain the phenomenon remarked upon in your first: why history seems to proceed in cycles. I shall discuss this further in a follow-on comment, if only to develop my own thought.

As to your third paragraph, I think we may be misunderstanding each other. My point is that mores and culture as they exist at the time of interpretation affect that interpretation, regardless of the rules of interpretation that are supposedly being followed.

In an earlier comment on Bostock I suggested that the rule supposedly being followed by Gorsuch imposed contemporary mores regarding sex onto what was claimed as a strict interpretation of language. I argued that Gorsuch's "test" (that if the outcome of a case would change if the sex of the party were switched) would not have produced the same result in 1967 as it did in the Bostock opinion. I used the illustrative example of a female lifeguard who claimed that she was discriminated against because male employees could wear swimsuits without tops and women could not. I suggested that it was highly implausible that a court in the mid 1960s would find in favor of such a claim, because it would represent a marked departure from accepted mores of the time. Gorsuch seemed oblivious to the difference in mores, and seemed oblivious as well to the possibility that if they were considered, his reasoning would collapse.

Another example is Griswold v. Connecticut. It is worth noting that what was explicitly discussed in that opinion was not a general right of privacy, but specifically the right of privacy of married couples:

They gave information, instruction, and medical advice to married persons as a means of preventing conception. [emphasis in original]
...
We think that appellants have standing to raise the constitutional rights of the married people with whom they had a professional relationship.
...
The rights of the husband and wife, pressed here, ...

Would we allow the police to search the sacred precincts of marital bedrooms for the telltale signs of the use of contraceptives? The very idea is repulsive to notions of privacy surrounding the marriage relationship.
...
It {marriage] is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Thus, it appears that Court's interpretation of the Constitution assumed a particular view of marriage as it existed at the time Griswold was decided. One may reasonably ask if the current view of marriage would carry the same arguments, and how the opinion would have been received 55 years ago if it referenced not married couples, but "consenting adults," or more progressively "sexually active parties." Even if one were to argue that Griswold was decided in a manner consistent with originalist principles, the mores that were accepted at the time it was decided influenced both the reasoning and the result.

I would disagree with your statement that "...if original-ism means finding the meaning of the legal language as used and meant by the people at the time of ratification, then we must also apply the context and culture and mores of that time as well." I think this makes the entire rationale for originalism vulnerable. The attack might go something like this:

Mores and cultures change. Once they change their previous condition is no longer relevant. Using originalism and considering archaic mores to address contemporary issues results in law that is by definition inapplicable to current circumstances.

For this reason, I have previously suggested that originalism not concern itself so much with original meaning, or original public meaning, or original intent, or any such, but with the original principles behind the provision in question.

Many of the disputes that are presented as Constitutional questions arise, not from ambiguity of particular clauses or amendments, but from initial assumptions that are hidden in various Constitutional claims, The most fundamental of these concern whether the government has any powers or authority that is not explicitly conferred in the Constitution. Regulation of interstate commerce has two completely different implications depending on one's view of that fundamental assumption.

In my original comment on this thread I mentioned that economic factors affect mores, and it has since occurred to me that perhaps the most significant of these is the shift from children being an economic asset to being an economic liability. This change has occurred within the last century, and this, along with birth control, has probably had the most influence (I would suggest detrimental) on the mores and values most essential to what you properly refer to as "ordered liberty."

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z9z99
on October 26, 2020 at 00:03:22 am

Now as to the first two paragraphs of your comment:

I agree that morality and mores result from a combination of innate, genetic, psychological and cultural influences. I think one of the most significant characteristics of modern discourse is lack of appreciation for how interaction with an environment affects experience. We humans have assumed that the influences instead go the other way, deciding that the immediate external world is comprehensively susceptible to human intervention. This leads us to believe things such as that we can "end" a pandemic with a pen, that we can, contra King Canute, make the oceans rise or fall with our prescriptions, and decide whether or not to let it snow. We think we can dismiss the influence of genetics on human traits, and argue with a straight face that nature is a "construct" that hatefully provides that the presence or absence of a Y chromosome determines the presence or absence of a penis at birth. We also seem to think that innate cognitive traits can be forced out of human life by the mere act of disapproving of them. We humans seem to be quite full of ourselves.

As to the cyclic nature of history, it may be useful to consider an analogy, i.e. something else that follows cyclic behavior. The most obvious is an ideal pendulum.

The current progressive assumption seems to be that when history reaches a desired point, it will stop, rather than keep going to unintended extents until it reverses and heads back, past the Utopian state, to something resembling the unsatisfactory world that existed before.

In our analogy, the reason why a pendulum moves in cycles is because the equilibrium state of the pendulum, i.e. the position to which gravity always tries to move it, is straight down. However, when the moving pendulum reaches the equilibrium state, it is also reaching its maximum velocity, rather than slowing to zero as it approaches the vertical. The momentum pushes it past the equilibrium position, and gravity immediately begins trying to make it return. The reason why the pendulum moves in cycles is that it always overshoots the equilibrium point. To complete the analogy, note that if a pendulum is freely swinging, it can be made to stop at a desired point by external force.

Now when we look at culture and politics, we see many of the same phenomena. Change is initiated in the direction of some desired state, it picks up momentum, overshoots the goal and generates countering forces. Widely accepted theories explaining mid-term election results in 2010 and 2018 is that the parties in power, having been been propelled there by historical forces, over-reached and produced backlash. Similarly the movements for "equity" and "anti-racism" and "gender equality" etc., initially garnered support by simply heading toward an objectively desirable equilibrium point, became overconfident, (or greedy or obsessed) and overshot the mark with such innovations such as "micro-aggressions," "white privilege," speech (or the absence of it) as violence, etc., etc. Thus we move farther from the point of equilibrium, (e.g. equality before the law, observance of civic obligations, shared sense of community, and so on) and the pendulum will swing back.

The other thing our analogy illustrates is that, if a pendulum is at rest and is disturbed, it will move in a cyclic pattern. If you change the position of a pendulum at rest, it will not stay in the same position. A similar principle applies to "equity," and "anti-racism." These conditions are fantasies of no-change. They embody the silly notion that history can be stopped, once it is in a condition that is desirable to someone. This is false. If there were some way to make everyone equal on day one, inequalities would emerge by day two. The reason for this is that the very same influences on morality (genetics, culture, external influences etc.) have differential effects and result in change and inequality. The only way to mitigate this is through force. This is one very large reason why doctrines of "equality" always mange to end up in tyrannies.

I will have much more to say about this, particularly how instinct, conditioned reflexes and adaptability will frustrate utopian ideologies, in response to an appropriate essay.

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z9z99
on October 26, 2020 at 22:18:18 pm

I had almost finished a longish reply to you here and below, but have somehow lost it via my human error. Good ideas all around and I appreciate the feedback, as corrective or confirmation. But I am not going to try and rewrite it now. I will only summarize that some of what you said suggests we should implement more sunset provisions in our laws (20 o 25 years max) to refine or remove or avoid "law that is by definition inapplicable to current circumstances." And that that would also contribute as a counter influence, per Gabe's suggestions.

I also agree with Gabe that your social pendulum seems to only ratchet leftward and we need to see some shifting of the Overton Window back to the right.
Great thread - thanks to all.

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R2L
on October 23, 2020 at 15:10:07 pm

It would appear that one person has not given up (see my response to Z9Z99). The Trumpster is attempting to remove one great carbuncle, a great ideological pustulant upon the body politic with influence as considerable as those who proselytize the new mores, i.e., the rule and policymaking enablers of the Administrative State.

https://politicalwire.com/2020/10/23/trump-moves-to-strip-civil-service-protections/

Also reported in WAPO which of course asserted the loss of due process - surprise?

www.whitehouse.gov/presidential-actions/executive-order-creating-schedule-f-excepted-service/

One can not counter today's dominant "influencers" when one's own subordinates actively sabotage your efforts.

Another plus for the Trumpster - if it survives.

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gabe
on October 25, 2020 at 10:37:29 am

Now here is an interesting means of "counter influencing".

https://amgreatness.com/2020/10/24/announcing-winston84-a-directory-to-suppressed-content/

A website called Winston 84 that provides access to those whose views have been suppressed by the Titans of Twitter, Facebook, etc.

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gabe
on October 26, 2020 at 13:17:54 pm

Z:

But what if a constitution were a pendulum?
Madison described his compound republic as being "most energetic" when it involved matters / powers of the central government and being distinctly less energetic when it sought to encompass matters more directly affecting State governments / powers.
As the pendulum swings to its outer limits, the Constitution is intended to limit the energy of the Federal government.
Gorsuch may very well have been wrong due to his inability (unwillngness, perhaps, lest he be unable to demonstrate his linguistic and intellectual dexterity?) to recognize contemporaneous mores. I suspect that this is the case. However, his real fault was in not recognizing that in a matter of State concern, he and SCOTUS were to act with MINIMAL energy and momentum. They were at the Constitutionally and duly prescribed limits of their prerogative.

Also, the pendulum analogy evidences a good understanding of physics and momentum. I hesitate to suggest, however, that it may not be wholly descriptive of the phenomenon known as a cultural pendulum.
Will anyone in this audience contend that the pendulum has not swung decidedly toward the left of center? I suggest not!
Further, I suggest that it shall not return to an equilibrium that would have been recognizably by the citizenry in 1950 - or 1960 and certainly not prior to the New Deal (both in economic and cultural matters).
For our cultural pendulum, we must recognize that it is a pendulum of a rather unique construction being as the pendulum itself is contained within a box frame which itself is secured to a rail housing ball bearings and which is cantered ever so slightly leftward, perhaps at a slope of 1 degree. Bear in mind that a slope of 3 degrees on a putting green makes for a rather tricky and at times precarious putt resulting in all manner of bad outcomes; but even at 1 degree, the ball ain't never coming back.
Neither will the cultural mores ever return to the previous state of equilibrium.
The ball bearings are named: academia, citizen ignorance / indifference, arts and media, social media, bureaucracy and its diktats AND SCOTUS decisions.

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gabe
on October 26, 2020 at 19:39:20 pm

Gabe,

Not to drift too far afield here, let me sum up my last few posts:

1. In agreement with R2L, much of the course of human affairs is determined by their interaction with the world; i.e. the physical, historical, economic, cultural, religious, and political environment. These influences are not discretionary, and cannot be designed to produce idealized outcomes.

2. When the Supreme Court decides a case, regardless of the supposed basis of analysis and decision, it is influenced by the factors listed above. A decision is not likely to last if it reflects either superseded mores from the past or aspirational mores that are based on ideological fantasies.

3. The pendulum analogy was meant to convey that culture, politics, attitudes and so forth oscillate around slowly-moving pints of equilibrium. The reason why those equilibrium points move is because the influences mentioned in paragraph 1 change. Technology, philosophy, and human events intervene. It should be noted that those external influences with which humans interact do include some effects of human intervention, but as often as not these are unintended consequences of half-baked, frivolous doctrines that ignore the second part of R2L's observation, i.e. that some determinants of human behavior are hard-wired. The other point about pendulums is that, if the intention is to stop them at some point other than one of those natural points of equilibrium, force must be applied.

4. The equilibrium points are determined not by political movements or social fashions but by the interaction of inherent, some may say instinctive, characteristics of human cognition. Jonathan Haidt mentioned some of these in his writings on moral foundations theory. Some of these were care/harm, fairness/cheating, loyalty/betrayal, and liberty /oppression. Note that these are pairs of opposed concepts that are inherent in nearly all humans. The pairing of these traits, as well as others; e.g. fight or flight, risk aversion/risk-taking, etc., are the actual motive forces that produce the cyclic nature seen in human politics and human experience. Even the most unicorn-y and rainbow-ish progressive fantasy is shot through with these bipolar concepts, which makes it possible to hate those who do not seem sufficiently loving, or to claim that judging people by the content of their character is "racist." You cannot engineer, indoctrinate or cajole these paired traits out of humans because they are an innate part of the human mind's capacity to deal with novelty and uncertainty in life. You may be able to fool people for a while, bully them occasionally, make a cost-benefit decision that going with the zeitgeist is the best short-term play, etc., but you cannot change human nature. Even as convinced an atheist as Christopher Hitchens understood that the faith/skepticism dichotomy is here to stay.

5. History has no end point. There is no perfect end-state at which we no longer need reason because we have empathy instead, or that self-interest is extinct because enlightened academics have found a better way. The key point is that human history is, in general, in the direction of improvement. There are wobbles, oscillations and apparent reverses due to the factors discussed above, but the "arc of history" is toward human flourishing, and this requires not politics, but good old fashioned human decency, and a recognition that the truly important things in life are beyond politics.

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z9z99
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