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A Separation of Powers Jurisprudence that Aggrandizes Judicial Power

The National Constitution Center is doing a series of essays on the provisions of the Constitution. It asked Peter Shane of the Moritz College of Law at Ohio University and me to write about The Treaty Power and the Appointments Clause which together compromise Article 2, Section 2. We wrote a joint essay describing where the Supreme Court case law leaves us and then short essays of our own summarizing where the law should be.

Mine sharply criticizes the Court’s jurisprudence for its departures from the original meaning of the Clause, Its opinions on the Appointments Clause are often self-serving because they generally maximize the Court’s discretionary powers at the expense of clearer rules actually contained in the Constitution. The resulting discretion allows them to be political and policy decision makers rather than faithful servants of the law. Here is my general take on the interpretive method that should be followed:

The practice and jurisprudence of the Treaty and Appointments Clauses err when they depart, as they too often do, from the original meaning of the Constitution. The original meaning is the meaning that would have been most likely embraced by a reasonable person at the time of the Framing. Because the Constitution is written in the language of the law, the original meaning is constituted by the text in its historical and legal context.

In particular, I am critical of the Court’s usurpation of  decisions about when the President can fire his executive officers:

             The Appointments Clause must be read against the background of “the executive power” granted to the President. That authority included the traditional powers of an executive, not simply enumerated powers as those specified in Article I. Article II then qualifies that understanding by expressly giving some of the executive’s traditional powers to Congress. In the Appointments Clause, the Senate is given the power to advise and consent to nominations. Because the Constitution does not change the executive’s power to dismiss subordinate officers, the President retains that unqualified power, as it was part of the traditional executive authority, . . The contrary decisions of the Court are both wrong and unclear.  In Morrison v. Olson, for instance, the Court did not offer a rule for determining when Congress could insulate the President’s power, but made instead the question depend on such factors as the scope and authority of the office at issue. This aggrandized the Court’s power and unsettled an established framework for government.

I hope this essay highlights one of the greatest problems of constitutional jurisprudence—the Supreme Court’s tendency to expand its own powers. This tendency, is, of course, even more obvious in its jurisprudence of unenumerated rights, which allows justices to pick and choose what rights they believe are fundamental.   But it is important to understand that the structural provisions of the Constitution have been distorted by the same will to power.

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on June 25, 2016 at 18:36:59 pm

The problem I have with this line of thinking, is that it calls for impractical hermeneutics to be applied to the text. And particularly disregards the fact that the text was most probably meant to mean what it actually says, without resorting to some sort of mental gymnastics for an interpretation. We see this all across case law. Perhaps a fundamental and simple example of this is obscenity law and the first amendment. We note that the first amendment reads

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances"

When we look to case law, we quickly find that certain types of speech, such as obscenity, have not been interpreted as within the scope of the first-amendment. However, these types of interpretations are clearly at odds with the text, because the text does not contain any limiting words (i.e. such as the words except, but, etc.) and so to place limitations on what constitutes "free speech" requires one to fundamentally alter what the text says by inserting clauses that the original text does not contain. We must note that the writers of our constitution were capable of communicating what they mean. To say or imply that they weren't proficient with written communication is ludicrous on its face.

Further, any interpretation of "...what the writer MIGHT have meant is nothing more than speculation, because the writer of the text is long gone, so all we are left with as a definite is what the text actually says, nothing more and nothing less, with the meaning to be drawn directly from what is actually written, (which is what the author of the text obviously intended to communicate) not what some judge would LIKE to have been written. So, what we are left with in our example are two question, which are the only questions necessary to a construction directly from the text:

(A) are we talking about something which is Speech?
(B) Does the proposed government law abridge that Speech? (noting that the word 'abridge' means "to shorten", hence, within the texts grammatical context, without any explicit limiting clauses, the word means "to regulate in any way")

Further strengthening the point as pertains to our example this far, is the noteworthy fact that the majority of the world was rather uptight about the sheer concept of obscenity, as at the time the roman catholic notions on the subject heavily influenced the majority opinion on the subject, thus historically directly linking the concept of obscenity with religious doctrine, to the point to where it becomes difficult to fundamentally separate the two; therefore invoking the anti-establishment clause as well, which is a whole different conversation and analysis, though it is noteworthy here, because the concept of obscenity differs from religion to religion. (just think about the fact that Muslims think that a woman showing her face in public is Obcene.)

Therefore, in conclusion, when we read the case law on obscenity, we see that the court inserts arbitrary opinion that calls for insertion of limiting clauses in the text that do not exist, that surely, the framers would have been intelligent enough to insert, if that was their intended meaning. History of the time period reveals that the framers, unless they were fundamentally different from everyone else on the planet, would have especially included such limited clauses, to minimize ambiguity in the writing, particularly since many in the constitutional convention were barristers, and therefore educated in the principle of semantics.

As applicable to THIS Article, the illustrative principle remains unchanged. The hermeneutic questions to ask is (A) What does the text of the constitution actually say and (B) what is the plain meaning of that text, without inserting anything else into the text? For, if we insert anything into the text, we have then changed the text (which requires ratification by the several states, etc.) rather than having merely interpreted the text. This indeed makes the majority of case law troubling at best, as the supreme court, liberal and conservative justices alike, have miserably failed to realize the point of what they are actually doing in reality.

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Rev. A. Scott Fulkerson
on June 26, 2016 at 04:27:23 am

Because the Constitution does not change the executive’s power to dismiss subordinate officers, the President retains that unqualified power, as it was part of the traditional executive authority, . . The contrary decisions of the Court are both wrong and uncle.

Make that "wrong and unclear.

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nobody.really
on June 26, 2016 at 11:24:51 am

"Make that “wrong and unclear."

Nope - the Court as usual is telling the other Branches to "cry uncle." Ha!

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gabe
on June 26, 2016 at 13:06:26 pm

"(A) are we talking about something which is Speech? "

This is an interesting question and one which you left unaddressed in your comments.

One supposes that a reasonable argument can be made that obscenity was not, at that time, considered to be speech and it had nothing whatsoever to do with Roman Catholic values (incidentally shared by Protestant Churches at the time) nor influence, which could not be said to have been predominant, Catholic population in the USA not reaching significant proportions *throughout* the colonies until the latter part of the 19th century when immigration from southern Europe hit its zenith.

An argument may also be made that *speech* under the First Amendment was primarily aimed at "political speech" and not ALL speech. This is evidenced by the fact that the Framers did not repeal libel laws, nor did any Court, Article III or Common, overturn libel laws. There has never been a successful challenge to these libel laws, although the laws on libel have been "abridged" via certain exceptions for political figures, etc.

Thus, it would seem that a) *insertion* of limiting clauses is, at times required to explicate the meaning of the text or b) one must understand what the text was intended to connote and cover at the time of the amendment.

The difficulty is when does this *insertion* prevent a jurist from being a "faithful servant of the law"? If it is a mere (ideological) insertion, one would suppose that the jurist is not being faithful to the law. Perhaps, if it is an explication based upon sound historical evidence, and that evidence has not been shaped by personal preference or ideology, it is proper.

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gabe
on June 26, 2016 at 16:32:16 pm

Gabe I have to the contrary, Obscenity must be interpreted as some form of speech or another, though whether it is a protected form of speech is debatable. Anything that takes the form of fixed an tangible media (i.e. anything that fits the basic definition of material to which a copyright may be applied) is a form of speech or another. Videos, photographs, written material, etc. have all been held to be "speech" in case law. The obscenity case law historically admits this point in its analysis fairly quickly, with the discussion quickly turning to whether or not "obscene speech" is protected within the first amendment. The problem with this hinges on the fact that because the framers would have been intelligent enough, as barristers, to have included reasonably foreseeable exceptions into the law, as not to leave the question open for debate if that was in fact their intended meaning. They could have wrote something along the lines of the words "...except for...", but interestingly enough, chose NOT to do this, and the question then becomes why, since they well knew the distinction and ramifications of doing so.

Further, the population of the USA at the time was not of its own culture at the time of the framing, but rather, historically was steeped in the cultural customs of England at the time. This becomes apparent in the basic style of the writing of the constitution itself. As we do recall, the English culture was heavily influenced by state-sponsored religion, which is directly linked to the Catholic doctrine. (even if Protestantism was an intermediary, early protestant doctrine did not differ from Catholic doctrine all that much on the issue of Obscenity, and it even remains true today, as Catholics and Protestants alike view pornography, etc. in much the same doctrinal light.) Within a world study of religion, historically, the concept of obscenity is always proportionate to the mainline religion of a given society. (For example, the ancient Greek and Roman polytheism had a very limited concept of obscenity, which is directly descended to today's Pagan religions such as Wicca, Witchcraft, and the like; while other religions such as Christianity and Islam hold a much more comprehensive and uptight view of the same issue. Just think, you never see todays Baptist ministers at a nudist colony, but yet atheists, polytheists, wiccans, and multiple other religions tend to be abundant. Might this fact have to do with a fundamental difference in religious doctrine pertaining to obscenity? Hint: A prime example to look to might be Paul's description of the Pagan religious worship rites in the Pauline epistles, which Paul basically calls "obscene" due to what are purely religious reasons, that transcend into today's world as well. )

The position of the case law there f breaks down when it addresses the question of what is, or is not, obscene, by allowing the current majority of the public's opinion to control the definition of the term, which is tantamount to establishing a religion and violation of the separation clause, since the majority opinion in the United States is heavily influenced by Christian religious doctrines, as indeed the majority of the people in the United States identify as Christians. We have already shown that it is difficult at best to determine what is or is not obscene without at the end of the day resorting to religious indoctrination on moral values. This might be all good and all, BUT for the anti-establishment and separation clauses. Indeed the court in that vein of cases has stated that it is not permissible for the government to legislate what are to be considered "moral values and beliefs", but yet that's exactly what the obscenity case law allows, because it allows a form of speech to be abridged based upon whether or not the majority of the people in the country have religious moral values which oppose that speech, as opposed to a more reasonable objective standard that could hold as a test without resorting to the use of what are, in fact, religious moral values in the process.

Libel doesn't fit first-amendment analysis well as a workable example because of the fact that libel goes a step beyond mere speech, in the sense that it promotes falsity by its basic definition. (Remember, the assertion that the disputed fact is TRUE is a complete defense to a libel / slander action, so therefore, the government isn't abridging speech in libel and slander laws, but rather it is criminalizing false statements, akin to perjury laws, and therefore the first amendment becomes moot to their analysis by that fact alone;)

The idea that protected speech was intended to only encompass political speech also fails, since as barristers educated in the semantics of the English language, would have contained in the clause something that would evidence this fact directly. (i.e. such as the use of an adjective to describe the type of speech they were talking about, which is not in the text.) We know the framers were educated in the use of limiting clauses, complex clauses, etc., because they are used all throughout the constitution itself. Its just rather interesting, that the writers, in the first ten amendments to the constitution used wording which is broad, as opposed to narrow, and the fact that the whole reason they were separating from England in the first place was to get rid of state sponsored religion and a form of government that in essence dictated the individual's moral values under the threat of criminal prosecution. Obscenity law today dictates the same thing- because it essentially boils down to the notion that "if you don't hold the moral decency values of the majority, we're going to throw you in jail".

Indeed, the court corrected the extremeness of the clause to a degree by stating that pornography, in the majority of circumstances, with narrow and limited exceptions, was subject to first-amendment protections. In this analysis, the court used the discipline of Psychiatry along with its scientific studies in carving out the exceptions to free speech. This reasoning on its face fails, however, again, because it requires amendment of the plain language of the constitutional text, and more importantly, because the scientific studies involved, when analyzed under the scientific method, really aren't that scientific because they are design-flawed in that the number of participants in these studies is rather small, usually a few hundred at best, not well-controlled, and almost always fail the notion that valid science should be double-blind to avoid inserting the opinion of the researcher into the results; therefore the results of the studies themselves can, within theory, be called into serious question, but again, this presumes that some sort of exception was carved out of the text by the framers intended meaning, rather than what some judge would like it to have meant.

Any insertion of a clause into text, based upon "historical evidence", might possibly survive such an argument. But several observations must be made. First, the "history" in question must not be in dispute. Several aspects of the early history of the United States have been subjected to perfectly reasonable disputes, some of which have altered the official account of history. Further, it is apparent that determining what the history is, that we must to some degree or another speculate. Speculation has no place at all in interpretation of the law, as speculation can always be legitimately challenged by the presentation of a reasonable alternative scenario. We also might see that the historical context fails to really answer the question at hand. For example, the term "Convicted Felon" cannot be explained by constitutional history, because the term hadn't even been coined and given a consensus of definition, and if we are to go a step further and apply a devils-advocate line of thought, we quickly discover that George Washington committed such acts of war that today the U.S. government would have called domestic terrorism, as opposed to an act of war. (after all, Washington had no authority under any recognized sovereignty that existed at the time. and believe it or not, there has been a movement in recent years to amend the "official account" of history to call George Washington a terrorist, based upon modern "FBI" definition of the terminology. Its just by luck that the majority of the society elects not to seriously entertain such a thing, though certain political movements such as the whole BLM thing might just be titillated to see such a construction imposed on official history. ) So as you see, the current affairs can quickly distort the interpretation of history, making history unreliable as a means to answer questions of intended interpretation, because the reader of the historical account has the tendency to project their subjective thoughts upon the historical account itself, often being unaware they are doing so. Again, to regress, all this still presupposes that the framers were ignorant, as not to be explicit as opposed to implicit in their design, as they knew that the document would be in effect for possibly hundreds of years after their time.

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Rev. A. Scott Fulkerson
on June 26, 2016 at 20:56:42 pm

1) "with the discussion quickly turning to whether or not “obscene speech” is protected within the first amendment."

That is precisely the issue. The Framers, as with ALL of their contemporaries could not imagine the sort of obscene "crap" that is to be found, and readily available, on modern media. What was the point of the "Scarlet Letter" - and it was not just the Puritans who favored this form of public shaming (although contemporaneous commentary / letters, etc indicate that even the Puritans had a healthy *intercourse* with their fellow citizens). It is simply inconceivable that late 18th century folks, whether "aristocratic" or common, could envision what is currently available. No, in this case, the refusal to *insert*, as you say, limiting text to the constitution DEMANDS that you willfully avoid or deny the general common understanding of the times. Heck, a 17th century pornographer would likely be burned at the stake or "sent to Coventry", a not uncommon practice at the time for offenses as simple as not marrying into the family of the parents choice (check out some of the literature on this period and you will see repeated instances of this practice).

2) "As we do recall, the English culture was heavily influenced by state-sponsored religion, which is directly linked to the Catholic doctrine."

This flies in the face of ACTUAL English practice. Catholics were denied almost all civil rights during this period. To impute to Catholicism an influence well beyond its intent and capacity to sway fellow, and quite often hostile citizens, is to deny historical facts. As to whether Catholicism denounced "pornography" while Protestanism did not, or would not of its own accord absent any Catholic teaching, is to deny the spoken words of almost ALL early Protestant ideology / sermonizing. Catholics are no more responsible for the drafting, and text, of the First Amendment than are Zoroastrians, a predecessor to Christianity.

3) "Within a world study of religion, historically, the concept of obscenity is always proportionate to the mainline religion of a given society."

And Catholicism WAS NOT the "mainline religion" of the colonies. Recall thomas Jefferson letter to the Ursuline Sisters, a community of Catholic nuns:

http://hotair.com/greenroom/archives/2014/01/09/jefferson-and-the-nuns/

Had Catholics, been the "mainline religion" that you wronfully suggest, Jefferson would have no need to draft such a letter.

I think the time is long since past that we blame Catholicism for the ills of this "Mainline Protestant" society.

3) Libel doesn’t fit first-amendment analysis well as a workable example because of the fact that libel goes a step beyond mere speech, in the sense that it promotes falsity by its basic definition."

NO _ libel IS speech and it is not qualitatively different from *false* political speech, either in intent or impact. I may libel a US Senator from my State with impunity and make all false charges that I can conjure up - see Hillary and Hillbilly Clinton - but I may not do so to my neighbor. both are clearly speech, both are clearly false - yet one is capable of being litigated and one is not ( My Senator is a douchebag, for example). Would this not indicate that *speech* under the 1st Amendment is NOT all speech, all utterances.

You appear to make the same mistake that many others make regarding interpretation of the constitution. You think that there is a "one size fits all" rule; that everything must be forced into this framework of your own devising. Goodness gracious, if that were the case, wouldn't it be easy to deliver sound decisions. Heck, even a landscaper, iron-worker, old knucklehead (such as I) or a clergyman could do it.

Sorry, ain't buying THIS panacea. I'll take McGinnis' position ( or better yet Evan Bernick's position) on this (see link below);

(Just an excerpt)
http://originalismblog.typepad.com/the-originalism-blog/2016/06/evan-bernick-on-concealed-carry-and-originalismmichael-ramsey.html

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gabe
on June 26, 2016 at 21:02:13 pm

Just in case the CENSORS did not like the 15th word of the second paragraph beginning with "c" and ending with "p" - here we go again:

1) “with the discussion quickly turning to whether or not “obscene speech” is protected within the first amendment.”
That is precisely the issue. The Framers, as with ALL of their contemporaries could not imagine the sort of obscene “cr*p” that is to be found, and readily available, on modern media. What was the point of the “Scarlet Letter” – and it was not just the Puritans who favored this form of public shaming (although contemporaneous commentary / letters, etc indicate that even the Puritans had a healthy *intercourse* with their fellow citizens). It is simply inconceivable that late 18th century folks, whether “aristocratic” or common, could envision what is currently available. No, in this case, the refusal to *insert*, as you say, limiting text to the constitution DEMANDS that you willfully avoid or deny the general common understanding of the times. Heck, a 17th century pornographer would likely be burned at the stake or “sent to Coventry”, a not uncommon practice at the time for offenses as simple as not marrying into the family of the parents choice (check out some of the literature on this period and you will see repeated instances of this practice).
2) “As we do recall, the English culture was heavily influenced by state-sponsored religion, which is directly linked to the Catholic doctrine.”
This flies in the face of ACTUAL English practice. Catholics were denied almost all civil rights during this period. To impute to Catholicism an influence well beyond its intent and capacity to sway fellow, and quite often hostile citizens, is to deny historical facts. As to whether Catholicism denounced “pornography” while Protestanism did not, or would not of its own accord absent any Catholic teaching, is to deny the spoken words of almost ALL early Protestant ideology / sermonizing. Catholics are no more responsible for the drafting, and text, of the First Amendment than are Zoroastrians, a predecessor to Christianity.
3) “Within a world study of religion, historically, the concept of obscenity is always proportionate to the mainline religion of a given society.”
And Catholicism WAS NOT the “mainline religion” of the colonies. Recall thomas Jefferson letter to the Ursuline Sisters, a community of Catholic nuns:
http://hotair.com/greenroom/archives/2014/01/09/jefferson-and-the-nuns/
Had Catholics, been the “mainline religion” that you wronfully suggest, Jefferson would have no need to draft such a letter.
I think the time is long since past that we blame Catholicism for the ills of this “Mainline Protestant” society.
3) Libel doesn’t fit first-amendment analysis well as a workable example because of the fact that libel goes a step beyond mere speech, in the sense that it promotes falsity by its basic definition.”
NO _ libel IS speech and it is not qualitatively different from *false* political speech, either in intent or impact. I may libel a US Senator from my State with impunity and make all false charges that I can conjure up – see Hillary and Hillbilly Clinton – but I may not do so to my neighbor. both are clearly speech, both are clearly false – yet one is capable of being litigated and one is not ( My Senator is a douchebag, for example). Would this not indicate that *speech* under the 1st Amendment is NOT all speech, all utterances.
You appear to make the same mistake that many others make regarding interpretation of the constitution. You think that there is a “one size fits all” rule; that everything must be forced into this framework of your own devising. Goodness gracious, if that were the case, wouldn’t it be easy to deliver sound decisions. Heck, even a landscaper, iron-worker, old knucklehead (such as I) or a clergyman could do it.
Sorry, ain’t buying THIS panacea. I’ll take McGinnis’ position ( or better yet Evan Bernick’s position) on this (see link below);
(Just an excerpt)
http://originalismblog.typepad.com/the-originalism-blog/2016/06/evan-bernick-on-concealed-carry-and-originalismmichael-ramsey.html
- See more at: http://www.libertylawsite.org/2016/06/25/a-separation-of-powers-jurisprudence-that-aggrandizes-judicial-power/#comment-1455035

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gabe

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