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Dorf and Solum on the Determinacy of Originalism

Originalism continues to be debated among scholars.  Serious work occurs in the academic journals but also in the blogs.  If one is not reading the blogs, one simply misses a lot of what is important.  Consider the following example.

Recently, Michael Dorf, a thoughtful commentator on originalism, wrote a post that criticized originalism.  The post is a relatively long one that cites an academic study.  His main point is that, while originalists claim that originalism is more determinate than other approaches to constitutional interpretation, it is not true based on an academic study of originalist judges.  According to Dorf, originalist judges turn out to produce strongly conservative results, but one would not expect “honest originalism” to be so conservative.

Larry Solum, a prominent originalist, has critiqued the Dorf post.  Larry has put up four posts– see part 1, part 2, part 3, and part 4.  Both the Dorf post and and Solum posts are well worth reading in full.

Here I want to emphasize an important aspect of Solum’s response to Dorf.  Dorf, like many originalist critics, identifies certain alleged defects of originalism.  But originalism, like all theories, is not perfect and has its weaknesses.  The relevant question is whether originalism is better than the alternative approaches.  Put differently, we do not want to commit the nirvana fallacy – criticizing a theory for not being perfect.

One way to avoid the nirvana fallacy is to compare originalism to real world alternatives.  And if there is more than one alternative – which there are many in the case of nonoriginalism – the question is to compare originalism to various other approaches.  Consequently, Solum has advocated the process of pairwise comparisons in this area, where originalism is separately compared to the various alternatives.  Solum claims that Dorf does not engage in this process and as a result does not support his claims about originalism’s lack of determinacy.  Solum writes:

For example, Dorf argues that originalism is not more determinate than the alternatives, but his post does not even attempt to show that this is the case.  He does argue that originalist judges make conservative decisions, but he does not even address the question as to what decisions they would have made if they had adopted an alternative methodology.  For some alternatives, it seems obvious that originalism would be more constraining – even if originalist judges are highly imperfect.  For example, if the court operated on the basis of the moral readings theory (advocated by Ronald Dworkin and James Fleming) then it seems likely that the originalist judges would have had even more conservative voting records.  Justice Scalia made this point several times with respect to his votes in some First Amendment and Fourth Amendment cases.

It would be helpful if Professor Dorf would specify what alternative or set of alternatives to originalism he has in mind when he claims that originalism is not more constraining than the alternatives.

Solum’s point here is important.  It is not enough to criticize originalism.  One must show that other alternatives are better than originalism in the relevant respect.

Reader Discussion

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on August 29, 2017 at 09:25:20 am

Originalist construction is more determinate than the alternatives. Yes, it is not "conservative", which is about policy preferences, and originalism is not about policy preferences.

We have our own blog containing many examples of originalist analysis. See http://constitutionalism.blogspot.com

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Jon Roland
on August 29, 2017 at 12:56:47 pm

The only problem I have with Originalist theory, is what can likely also be said of every other approach; that it should be strictly adhered to in every circumstance, every adjudication, without exception.

In my view, most humble, at least in terms of legal scholarship, if not also in common sense, is that such strict adherence can sometimes result, (though only in very rare instances, but still ones that may be of serious legal and societal consequence) in one of two outcomes:

1) an unjust decision that derives from perfectly applied Originalist method, but flows from a procedurally perfect statute bearing seriously substantive flaws, and where these flaws are readily apparent to the jurist,

2) a just decision, that flows from a procedurally perfect statute bearing seriously substantive flaws, and where these flaws are readily apparent to the jurist, and where the strict Originalist , in the interest of justice, will perform legal acrobatics to conjure up, or carve out of thin air or thick smoke, an Originalist basis where one does not exist, in order to reach the just outcome.

In my view, the latter is dishonest Originalism, and the former unjust jurisprudence, (even though the decision is defensible and can correctly assert that any unjustness must be borne and remedied by the Legislature, and permitted to endure so long as the legislature is so motivated, or becomes so motivated to make just repairs).

Regrettably and admittedly, my critique fails (perhaps in the interest of diplomacy) in that it does not provide specific case(s) that demonstrate my argument. So it’s in stepping out further on this weak plank, that I dare be so bold (and likely reckless) to proffer further, that it is my view, that a jurist commitment to a just outcome should always supersede any commitment to the strict adherence to any single method of arriving at it, and he/she should not confine him or herself to only applying that single method, when an alternative method may be correct in a given circumstance. Right is right, wrong is wrong, (the argument of relativity notwithstanding), and a wrong shouldn't be made a right simply because it wrongly stands-up to any single method.

That fact that a jurist should find him/herself justified in departing from an Originalist (or other) method in only the slightest percentage of cases ought not to be a determinant that the method is flawed or that the practitioner is intellectually dishonest. But only that justice sometimes demands it.

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Paul Binotto
on August 29, 2017 at 13:32:27 pm

Law professors tend to get lost in the ionosphere; this is a debate no one should ever have to bother wih.

lt is not so much that originalism is more determinative as it is based on recognized and articulable neutral principles. When you accept the fact that COTUS is nothing more than a contract creating an agency relationship, and there is no compelling reason not to apply the mundane rules we use to interpret less momentous ones, you find no reason to get lost in lofty philosophical debate. And if a contractual provision is difficult to interpret, that is all on the drafters.

This is part of correspondence l had recently with a prof who is a prominent LC advocate:

Prof: “You are doing substantive moral, political, logical--values--analysis in your decision to adopt originalism as the most compelling approach to constitutional interpretation.  But, does not doing that violate the principles of originalism?” 

Me: "No. As Pilate famously said, “O gegrapha, gegrapha” (What l have written, l have written). As we are interpreting a historical document, the interpreter’s personal opinions should count for nil. When you try to recast Shakespeare’s noble Caesar as a vainglorious Donald Trump, you have effectively rewritten the play.

This goes all the way back to Hobbes: Life in a state of nature is “nasty, brutish, and short.” As such, you enter into a society out of enlightened self-interest. That transaction governs: You give up certain of your natural rights (think Robinson Crusoe) and assume certain obligations (e.g., to pay taxes) in exchange for a portfolio of “civil rights,” which are best thought of as procedural remedies designed to protect the rights you retain. This concept is, of course, incorporated into the Dol:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

Locke’s notable innovation was in recognizing that the arrangement was not irrevocable, formally acknowledging the right to revolution. (Hobbes might have gotten there first, but to say so openly was inherently dangerous.) The people of NH stated this expressly in their constitution: ”When men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void.” N.H. Const. art. 3.

lmportantly, this arrangement does not necessarily dictate a form of government. Aristotle advanced the concept of rule by Platonic Guardians, which would work if the Guardians were saints. But as Hamilton wrote in Federalist #51,

“[i]f men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Distilled to essentials, the only “value” that is in play is enlightened self-interest. Any government will do, as long as it meets that minimal standard.

Originalism either lives or dies on the notion of informed consent. The Hobbesian (most scholars call it Lockean) transaction. What are we agreeing to, if not the words on that page? Either the law is King, or we are ruled by men, and as Paine put it, “in America the law is king.” Ergo, the law as written must control.

The problem lies in the fact that for most of us, the Constitution is an adhesion contract. Your postulation that just maybe, it wasn’t what our generation agreed to, is duly noted, but the response is that all contracts can be renegotiated. There was an array of processes incorporated therein by which this can be done, and every citizen has the right to work toward modifying it."
__________________________-

Barnett and Bernick write:

"As fiduciaries, judges are morally and legally bound to follow the instructions given them in “this Constitution” in good faith. This means that judges engaging in constitutional construction or implementation must seek to give legal effect to both the Constitution’s “letter” (consisting in its original public meaning) and its “spirit” (consisting in the original function or purpose of its particular provisions.)"

Pacta sunt servanda. That the "letter" of the law must be respected borders on the self-evident. In James Madison’s view, there is one and only one proper way to interpret it:

"I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone is it the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers."

James Madison, Writings of James Madison: 1819-1836 191 (G. Hunt ed. 1910), accord, e.g., Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2. There is no contrary authority.

But the law of contract requires fealty to the spirit of the accord, as well. The judge must always “make such construction [of a law] as shall suppress the mischief, advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief … according to the true intent of the makers of the act," Heydon's Case [1584] 76 Eng. Rep. 637 (K.B.). As this principle is valid with respect to both contracts and statutes, those who would abandon it bear the burden of devising a rationale for deviating from it.

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LawDog
on August 29, 2017 at 14:04:44 pm

Yep - and to counter those who believe that a "good outcome' MUST be arrived at by a jurist, all I can say is:

If the Law be an ASS, at least it is OUR ass! We do have ample constitutional means to clean it up!

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gabe
on August 29, 2017 at 14:08:18 pm

One is reminded of a (probably apocryphal) conversation between Justice Oliver Wendell Holmes and Judge Learned Hand, upon leaving a restaurant. Hand, in a sudden onset of enthusiasm, ran after him, crying, "Do justice, sir, do justice." Holmes' reply: "It is my job to apply the law."

Simply put, "doing justice" is above a judge's pay grade. Why? Because COTUS said so.

The Framers made no effort to define the Article III “judicial Power” because they didn’t have to. Lord Bacon observed that the office of a judge "is jus dicere, and not jus dare; to interpret law, and not to make law, or give law." Francis Bacon, Essays LVI (Of Judicature) (1620). Edward Gibbon observed in his magnum opus on the Roman Empire that “the discretion of the judge is the first engine of tyranny.” 1 Edward Gibbon, The History of the Decline and Fall of the Roman Empire 97 (ed. M.F. Guizot, 1844) (1776). Blackstone maintained that the judge was "sworn to determine, not according to his own judgments, but according to the known laws." 1 Blackstone, Commentaries at 69. A century earlier, Lord Coke wrote, "[i]t is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion." 1 E. Coke, Institutes of the Lawes of England 51 (1644). Hamilton added that, to “avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case before them.” The Federalist No. 78, 470 (Alexander Hamilton) (I. Kramnick ed. 1987). Thomas Jefferson saw the judge as “a mere machine,” expecting that the law “be dispensed equally & impartially to every description of men.” Thomas Jefferson, Letter (to Edmund Pendleton), Aug. 26, 1776. As in all but the most exotic cases, the “law” is established, the judge was expected to be little more than an administrator, playing what Professor Llewellyn called “the game of matching cases.” Karl Llewellyn, The Bramble Bush 49 (1960). The judge’s function was viewed in terms of duties: CJ Marshall describes the judge’s willful refusal to accept jurisdiction over a case he had a duty to hear as “treason to the constitution.” Cohens v. Virginia, 16 U.S. 264, 404 (1821).

There is no contrary authority. And it solves the ex post facto law problem Living Constitutionalists can’t resolve:

"As Suetonius records, the Roman emperor Caligula imposed taxes on food, lawsuits, and wages, but did not publish his tax laws; as a result, “great grievances were experienced from the want of sufficient knowledge of the law. At length, on the urgent demands of the Roman people, he published a law, but it was written in a very small hand, so that no one could make a copy of it.” Suetonius, The Lives of the Twelve Caesars 280 (trans. A. Thomson; Bell, 1893), Ch. 4, § LXI. If anything, our predicament is even worse: We can read the laws until we go blind, but we cannot rely on them. We literally endure a regime of “unknowable law,” wherein even hidebound pronouncements of the United States Supreme Court barely even qualify as polite suggestions. By way of illustration, allowing a judge to decide a case in which she is named as a defendant in tort violates both natural law, 3 U.S. 386, 388 (1798); Dr. Bonham’s Case [1610] 8 Co. Rep. 107a (C.C.P.), and the Fourteenth Amendment, e.g., Tumey v. Ohio, 273 U.S. 510, 523 (1927), but that and a dollar won’t buy you a lattè at Starbucks."

“Where-ever law ends, tyranny begins.” John Locke, 2nd Treatise, sec. 202. We are either governed by law or man, and there's really only one word for the latter: tyranny. And as Christopher Hitchens rightly observed, the essence of tyranny is not despotic rule, but arbitrary rule.

The paradigmatic example is CJ Taney's decision in Scott v. Sandford. The outcome was monstrous, but the flaw was in COTUS itself. We don't give judges authority to rewrite COTUS to redress what they may view as grievous wrongs. COTUS is neither perfect nor divinely inspired, and we need to stop deluding ourselves into thinking that it is.

PB: "it is my view, that a jurist commitment to a just outcome should always supersede any commitment to the strict adherence to any single method of arriving at it"

ln short, you are a Living Constitutionalist. lf the outcome of a case should always comport with a judge's provincial notions of right and wrong, you have no principled basis for complaint when that judge chooses a scale of right and wrong you object to. Sure, we can require mandatory abortions for Down Syndrome fetii! Society should not be so burdened. You're opening Pandora's Box, which is why so many here disagree with you.

"[T]onight I want to touch on a more thematic point and suggest that perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best. As Justice Scalia put it, “[i]f you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” ~Neil Gorsuch

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LawDog
on August 29, 2017 at 14:12:50 pm

And under the Framers' COTUS, we have ample means for kicking lazy judges' asses off the bench. l might even go after Posner for Hively. :)

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LawDog
on August 29, 2017 at 14:17:04 pm

lf there is a finer and more comprehensive website on the topic than Jon's, l am unaware of it. lf you need to know about it to interpret COTUS, Jon has it.

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LawDog
on August 29, 2017 at 14:25:33 pm

Yep, again - BUT there is no will, no appreciation of the "institutional ambition" Madison thought so essential to a proper structuring and functioning of government.

Hey, BTW: Is Judge Posner related to the Posner that authored a book called "Case Closed", in which the whole JFK conspiracy silliness is debunked?

Anyone know - I could not track this down.

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gabe
on August 29, 2017 at 14:40:47 pm

Solum: "Original methods originalism is the view that the original meaning of the constitutional text is best understood as the meaning that the text has when it is interpreted using the methods of legal interpretation that prevailed at the time each provision was adopted. John McGinnis and Michael Rappaport are the most prominent advocates of this position"

This one has me scratching my head, as l fail to see any significant daylight between the Rappaport position and that of other originalists. All of the canons of construction were an integral part of the common law long before COTUS, and are presupposed to have validity by the Framers. And since he rules this roost, perhaps he can enlighten us.

By way of example, on the question of the importance of discerning and accounting for the spirit of the law--what it was intended to facilitate and/or prevent--there's a straight line between Heydon's Case, Charming Betsey, and Jarrolt v. Moberly.

Courts create 'squiggly lines' for an odd and counter-intuitive reason: they prefer not to be seen as making bold changes in the law, even if they do violence to the law in so doing.

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LawDog
on August 29, 2017 at 14:45:22 pm

To the best of my knowledge, his only surviving relative is his cat. :)

The Framers gave Congress almost no power to lord over the judiciary, rather by design. The real power to curb judicial abuse is supposed to lie with the citizenry.

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LawDog
on August 29, 2017 at 14:46:54 pm

What an excellent exchange of really top-rate legal scholarship here between LawDog & Mr. Gabe (even if somewhat at my expense; small price for gained knowledge and wisdom). Good stuff!!!

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Paul Binotto
on August 29, 2017 at 15:09:38 pm

It dismays me that I should be a Living Constitutionalist and the implications that this should be so, confronts me with the most unintended and unanticipated irony and creates in me no small amount of turmoil in my mind and heart, as now I am faced with either reconciliation or acquiescence; the one is gall, the other vinegar.

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Paul Binotto
on August 29, 2017 at 15:21:40 pm

"To the best of my knowledge, his only surviving relative is his cat. "

Well, at least we may have the small satisfaction thinking that the cat is scratching his furniture. - Ha!

As to "almost no power" - true; however, I had something more on the line of the cat scratching his furniture. The Legislative may determine that SCOTUS is to be the court of original jurisdiction for, let us say, ALL, each and every, immigration case that arises within (and without) the borders of the USA. One wonders how likely the court would then be to "legislate" our immigration policy.

Hey, "Cat Scratch Fever" and all that!

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gabe
on August 29, 2017 at 15:33:48 pm

Dawg:

Well said (as usual) - we are in agreement on the role of the Judiciary vs the Legislative. As i have said before the *in-spiriting* of the DOI ought not to extend beyond the Halls of congress (and State Houses) AND as you rightly pointed out earlier, the Citizenry.

One day if the situation arises, we should have a discussion on the relative value of "consistency" vs "constancy" in both the law, politics as well as a) the ability (or lack thereof) of *crafters* of the Law to achieve "consistency of outcomes and b) the difficulty confronted by the Judicial given the inability to achieve that unattainable level of consistency in the Law and its consequent determinations.

take care

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gabe
on August 29, 2017 at 15:39:33 pm

Oops, forgot this:

Crafters vs drafters - consistent with your (our) view that the Law, COTUS included, is not divine, did not arise ex nihilo, - it is thus *crafted* by (rather) reasonable, educated men (and now women) in response to certain conditions / moderated / tempered by certain beliefs, etc. And yet, this does not preclude the possibility of it containing some *eternal* truths.

Drafted - gives one the impression that a gaggle of lawyers / philosophers sat down at a tavern and conjured up some immortal truths - all out of Pure Reason.

Ain't buying, my friend!

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gabe
on August 29, 2017 at 17:45:26 pm

To me, the larger mystery is why people give Dorf's idiocy the slightest bit of oxygen:

"For living Constitutionalists, the act of ratification by people who are long dead, and whose numbers did not include any women or enslaved African-Americans, does not suffice to make the Constitution effective today. For us living-Constitutionalists, the Constitution's current authority derives at least in substantial part from the fact that we the living people accept it as authoritative. And if our acceptance validates the Constitution, then, as Justice Powell said in the Rummel case, the way in which contemporary Americans understand the Constitution's language should play a substantial role in how the courts interpret that language.

Understood in this way, the notion of a living Constitution is simply an effort to interpret the Constitution, not to replace it."

The unanswered questions are (1) what are we accepting as authoritative, and (2) if we don't agree that a given judge found in his Depends is authoritative, how are we to communicate this--short of killing the judge's dog?

More Dorf: "In embracing the originalist label, Balkin aims to accomplish a kind of intellectual jujitsu, turning a theory that was engineered largely by political conservatives toward liberal ends. If originalism can validate a constitutional right to abortion, as Balkin’s version of originalism does, then liberals need not fear originalism, and conservatives who seek to undermine the legacy of the Warren and Burger Courts must go back to the drawing board."

lt's not jiu-jitsu. lt's Originalism 101. The 5/14Am right to life only extends to "persons"; at common law, a fetus was not a person. And as a practical matter, the State doesn't have a legally identifiable interest in whether a particular woman carries a particular fetus to term--Barnett's presumption of liberty applies. And as i always tell judges, my personal opinion doesn't count.

This (from blog comments) is a fair point:

"Prof. Solum also seems to misunderstand my basic point--which was not that Justices Scalia and Thomas are dishonest, but that originalism did not constrain them very much if at all. My argument was that IF originailsm is constraining it ought to lead to moderately conservative results on average, but because it leads to very conservative results, that means EITHER that practitioners are dishonest or originalism is not very constraining. I titled my post "How Determinate Is Originalism in Practice?" rather than, say "Are Originalists Dishonest?" because I didn't mean to suggest dishonesty. Insofar as Prof. Solum's response is that I've only used two data points, HE is the one who is accusing Justices Scalia and Thomas of dishonesty."

Scalia was no more faithful to his originalism as Tiger was to ex-wife Elin. He was a sociopath, who would never practice what he preached because he wasn't the kind of man he was preaching to. :) Admitting that he was a pig is an essential part of becoming a Scalian originalist.

Too much of this debate has been fouled by law professors with more straw and time on their hands than sense. Why wouldn't women and children of slaves embrace the 'new-and-improved' COTUS? Dorf assumes this as fact without offering any support for the claim. Sadly, this tends to be true on both sides of this divide.

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LawDog
on August 29, 2017 at 20:32:29 pm

You romanticize unduly. While the Framers debated great issues, the actual document was drafted by a group of lawyers in a smoke-filled room. They were superstars--Wilson, Rutledge, Ellsworth--but it was their job to commit those thoughts to paper. (Whether beer was among the available libations is unknown, but certainly suspected. :) )

A number of critical phrases were lifted verbatim from pre-existing state constitutions. For instance, it is stated therein that the police power “shall be vested in a President of the United States of America,” U.S. Const. art. II, § 1, cl. 1, who “shall take Care that the Laws be faithfully executed.” id., art. II, § 3. However, the phrase was borrowed almost verbatim from the constitutions of Pennsylvania (“The supreme executive power shall be vested in a president and council,” Pa. Const. § 3 (Sept. 28, 1776), who “are also to take care that the laws be faithfully executed.” id., § 20, and New York, (“the supreme executive power and authority of this State shall be vested in a governor,” N.Y. Const. art. XVII (Apr. 20, 1777), whose duty it was “to take care that the laws are faithfully executed," Id., art. XIX), written a scant decade beforehand.

There was no magic--just professionalism. The ideas came from a practical need to reach a compromise (slavery w/blacks as 3/5 of a person; the Senate), and the wisdom of Locke, Blackstone, and Montesquieu. Where did they come up with conditioning the tenure of Art. lll judges on the maintenance of good behaviour? British law, state constitutions, and the Northwest Ordinance (the Continental Congress had no authority to impeach, but the Ordinance contained a similar condition).

There are enough latent flaws in the original to essentially disprove the notion that God Herself had a hand in its construction. But if you study the various state constitutions in light of the contributions of people like Locke, the pedigree is clear.

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LawDog
on August 29, 2017 at 21:10:23 pm

Mr. Gabe,

Gabe: "the *in-spiriting* of the DOI ought not to extend beyond the Halls of congress (and State Houses) AND as you rightly pointed out earlier, the Citizenry" - respectfully, help me to understand. Please, in reading and responding to my assertions below, do so with the knowledge that I am at a disadvantage of the legal education and experience available to you. I won't always communicate my thoughts in proper legal fashion, or under standards considered obvious to you and others not so disadvantaged. I'm not being snarky, just trying to understand.

Straighten out my thinking where it goes off course (which may well be, right out of the gate) - if this so-called "in-spiriting" of the DOI doesn't extend beyond Congress, (I presume) to the Judiciary & Executive, how do they operate as co-equals? It seems to me, if they can't consider (against their own) the (moral) reasoning underlying Congress' "in-spiriting" of the DOI as distilled into a particular statute, beyond checking any procedural defect, they would not be able to check, to balance, but only defer? So a factional majority in Congress can do their deed so long as they properly cross all their "T"s and dot all their "I"s, no matter how obvious the nefarious? An OJ, 'If it fits, they must acquit', adjudication?

It would seem too, that if nine justices were to (as originally the practice) offer nine individual opinions, which might/could (that they did not would only be more support the existence of a consensus of common moral perspective) include nine different perspectives of moral reasoning, that would necessarily need to be distilled into a mutually accepted perspective in order to reach a majority, that this would at least remove much of the relativistic concerns of "what's moral", as a general consensus has been achieved (as to what’s moral) in the affirming or not, that the statute passes substantive due process. This is in addition, to the legal/procedural due process considerations, not in place of it.

Is not, a Justice, nominated by a popularly elected President, and confirmed by a popularly elected Senate, therefore deemed to be popularly seated by popular (if not direct vote) consent, and thus, deemed to be representative of the Citizenry and in turn, arguably representative of at least a generally common moral perspective of the (indirect) majority that seated them? Doesn't this further dilute the relativistic concerns about morality? Except maybe for most recent times, a common culture generally possesses a common morality, a much more stable and slower to evolve characteristic, so life tenured Justices could be said to remain representative of the populist generally shared moral perspective, over long spans of time. U.S. Justices don’t need to be moral representative of Zimbabwe peoples, only of U.S. people, and they don’t need to be, this if one refuses to accept that there are universal moral truths (which I do accept). And, really only need be representative of the general moral perspective of the majority, and whereas, common people tend to generally share a common moral perspective, they will likely be representative of the super-majority. Can’t (aren’t) those nine Justices considered a “Jury of Our (Collective American) peers”? Aren’t the Justices at the Supreme Court level, “judge & jury”? In a criminal trial, isn’t it the judge’s rule to ensure the trial is correct and proper legally/procedurally, but the jury who collectively decides guilt or innocence, which in reality is a determination of what the “truth” is in that particular case. The jury must weigh the evidence before them, and make moral judgement, using their individual and distilled collective moral reasoning to determine the truth. The judge has taken care of the legal/procedural aspect of the case; the jury doesn’t have to make legal determinations, only moral determinations of guilt or innocence, truth and falsehood. And, isn’t this what the nine Justices are doing; acting as judge & jury, putting the statute on trial against the Constitution, as Judge, ensuring legal and procedural propriety, but also, as Jury, making a determination of “Truth”, making a moral judgement, employing their individual and distilled collective moral reasoning (representing the distilled collective moral reasoning of the citizenry), to determine the truth?

Just like a jury’s decision, it cannot be based on arbitrary reasoning or in consideration of any evidence not presented, but a meeting of the minds always derives from the subjective reasoning of the individual as distilled into a consensual reasoning (still subjective, but less so), of the whole, or at least of the majority.

If nine Justices wrote nine opinions, those nine opinions would better reveal the moral reasoning employed by the individual Justice, and the Citizenry would better be able to judge whether or not a particular judge “generally” adheres to the common morality (at least majority morality), making it easier to identify and remove those Justices with moral reasoning that lies wildly outside what is considered to be societal/community (again at least of the majority) norms. The current method, (non-individual opinions) makes it much harder to identify and remove gross outliers.

I apologize for going off on such a tangent; but to wrap this up, I need more persuasion if I am not to dispute that morality is so subjective that (at least) a common people can’t possess a consensus of it generally, and that it can’t be pronounced in at least general terms, in a manner that a majority (and likely super-majority) of a common people, would assent to. To badly corrupt and blend two common adages, “You can’t legislate morality, but you know it (morality) when you see it, or not". And I also dispute that nine justices, collectively, are not representative of the Citizenry from a common general moral reasoning perspective as to not be considered jurors of our common ‘peerage’. Finally, I dispute that the ‘crafters’ of the Constitution, would not only anticipate, but expect, as matter of duty, vital to a system of checks and balances they meticulously crafted, that the ‘in spiriting’ of the DOI should extend to all branches charged with upholding it (Constitution). Otherwise, what need is there for Justices to be nominated by a popularly elected president and confirmed by directly or indirectly popularly elected Senate, if they were not to be representative of the Citizenry, and of the common/majority (super-majority) moral perspective? If Justices were to consider only Legal, Procedural issues, what matter is it if they are even in the least bit representative of the citizenry; it should suffice that they only should have legal training, and be of little account were a Justice to be hired, by merit, or direct appointment, as any other government employee.

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Paul Binotto
on August 30, 2017 at 14:24:46 pm

PB: "[W]hat need is there forJustices to be nominated by a popularly elected president and confirmed by directly or indirectly popularly elected Senate, if they were not to be representative of the Citizenry, and of the common/majority (super-majority) moral perspective?"

As the same rules also apply wrt Commerce under-secretaries and ambassadors, you're probably reading way too much into this. This seems more aimed at preventing a coup, but it is in keeping with Montesquieu's design. Checks and balances.

You pose the kind of questions that make morality-based law untenable. l concur with Jefferson: "Let the judge be a mere machine."

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LawDog
on August 30, 2017 at 15:57:52 pm

Interesting response; thanks.

This discussion reminds of that line from Oscar Wilde's, The Importance of Being Earnest" where Jack Worthing is explaining to Algernon why his name is Jack in the country and Earnest in town, "{A} high moral tone can hardly be said to conduce very much to either one's health or one's happiness". :-)

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Paul Binotto
on August 31, 2017 at 10:40:26 am

Dawg:

Perhaps, you misunderstood my "shorthand" - The "romantic' version of our *Creation* documents has long been dispelled from my mind. What you term professionalism, I would characterize as 'craftmanship" as it, more to my mind, implies both a desire and a need to forge a specific solution to a specific (set of) problem(s). The antecedent solutions (Locke, Blackstone (and innumerable British jurists), etc) provided much of the materials as did our own failed attempts (Northwest, Articles of Confed, etc) to craft a workable solution for OUR specific conditions.

Yet, to argue (if you are so doing) that the possibility of a somewhat more "eternal" truth(s) arising from this craftsmanship is impossible may be a step too far and would also allow the Living constitutionalists a viable foothold. Why not, then, craft a new creation document? ; one to suit our current views. No need to cite specific examples. Moreover, to do so could negate any alternative view of the permanency of certain human attributes, and more specifically human frailties, which, in fact, necessitate certain limits upon the powers delegated to government - something our Living con folks are apt to attempt in pursuit of their new and improved version of both government and humanity.

Our "pedigree" argues against the new version and it is within and from that pedigree that we may be able to glimpse the (somewhat?) eternal truths - or, perhaps, the eternal and inherent frailties of humanity that require a certain limit upon government action.

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gabe
on August 31, 2017 at 11:08:56 am

Paul: (sorry I missed this - had some other responsibilities)

Very interesting but you may read too much into the "in-spiriting" thing. Dawg, quoting jefferson said it well: Let the Judge be a machine. As I have said earlier in response to nobody(?), Judges ought not to be architects as they are prone to all manner of foundational defects.

BUT:

This does not imply or suppose that Jurists ought not be familiar with, or possess a moral sense. Good Lordy, no! And it is inescapable that a Jurist may, at times, employ a lens that is colored with his / her own moral assessments. My own sense of the matter is that such "moral" influenced reasoning was the basis of old common Law courts - where "equitable" solutions were to be crafted. fine!

We are, however, dealing with matters of constitutional import; in theory, the moral determinations have already been *settled*. It is not the role of the Jurist to be so *un-settling.* The Law is before the Jurist. That Law serves as the boundaries of the determination. (Yeah, it ain't always crystal clear - but no sense further confusing or un-settling the matter with the jurists unique perspective).

NOW: As for a "common" morality - I AGREE - 1000%. There ought to be, and for almost time immemorial, there was a "Common Mind". [I refer you to "The Common Mind..." by Andre Gushurst Moore - an excellent read on the topic]. Regrettably, that is no longer the case and thus to expect that a Jurist would produce a result, and one predicated upon his / her own moral reasoning, would not, I am afraid necessarily yield a "moral" result - at least not one that you (or I) would find satisfactory.

Even were there to be a viable "common mind" in the present day, still the Jurist would do well to limit determinations to the Law as crafted / filtered through the "common mind" - as it was termed "common" not *universal*. One may argue that it is the very "moralizing" of some of our Jurists Superstars that has diminished the Common Mind - nuff said!

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gabe
on August 31, 2017 at 13:01:30 pm

Why not craft a new COTUS? lf there is a better mousetrap, l'll embrace it tomorrow. All l am saying is that there is one and only one principled way to interpret the one we have, and that would be equally true wrt the one we replace it with.

A lof of states have rewritten their constitutions--Michigan, 4 or 5x, iirc. NBD.

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LawDog
on August 31, 2017 at 13:10:18 pm

No Apologies, necessary - Good stuff, here, Mr. Gabe! Your points are well made, and well taken. Thanks, Paul

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Paul Binotto

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