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Original Methods Originalism Is Public Meaning Originalism

Professor Larry Solum has written an excellent series of posts that that help clarify the question of whether public meaning originalism constrains judges. He both distinguishes the concept of constraint from other related concepts like determinacy and helpfully suggests a framework for empirically analyzing the degree of constraint that originalism provides.

Larry, however, makes one puzzling assertion in the first of these posts. He suggests that there are alternatives to public meaning originalism still supported by serious originalist scholars. He included as one of these alternatives “original methods originalism” – the view of originalism that Mike Rappaport and I have propounded. But original methods originalism is emphatically a form of public meaning originalism.

Briefly described, public meaning originalism is the view that the meaning of the Constitution’s text is that which would be attributed by a reasonable observer or reader at the time the relevant provision of the Constitution is enacted. Original methods originalism contends that the reasonable reader would follow the meaning that flows from the interpretive methods applied to a legal text of the Constitution’s kind. We defend that view by arguing further that the Constitution is written in the language of the law. Thus, a reasonable reader would recognize that the context of the document demands the use of legal terms and interpretive rules, particularly to clarify and make more precise terms and provisions that might otherwise seem unclear.

Larry does not accept our view of the Constitution is written in the language of law or that the original methods of constitutional interpretation help constitute the meaning of the document. But that disagreement, as theoretically important as it is, is not a disagreement about whether the meaning of the document is its public meaning. It is a disagreement about the relevant evidence and method to determine the public meaning.

Originalists sometimes disagree about the meaning of a provision even if they agree that public meaning is the proper criterion. Our disagreement with Larry is more systematic and more generally applicable, but it is ultimately a disagreement about what evidence is relevant and probative.

Indeed, original methods originalism may help bridge the gap between original public meaning and a genuinely different concept of originalism – original intent originalism. Given the well-known problems of determining original intent, it may well be that the Framers intended to employ interpretive rules, including giving primacy to the text, as the best method of determining intent. In that way, original methods may point the way to tempering what remains an important divide in originalist theory.

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on September 01, 2017 at 08:56:28 am

The example I like to use to explain original methods originalism is to examine the legal maxims that formed part of legal education in the late 18th century, two of which are:

Potestas stricte interpretatur. A power is strictly interpreted.

In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.

These maxims directly challenge the dicta in McCullogh v. Maryland, not treated as dispositive in much constitutional interpretation, which led to the egregious opinion in Wickard v. Filburn, that is used to justify most federal criminal statutes. If the maxims are accepted, then most federal criminal statutes are unconstitutional.

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Jon Roland
on September 01, 2017 at 08:57:46 am

Should be "now treated".

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Jon Roland
on September 01, 2017 at 09:27:24 am

Big fan of Larry, though he tends to get mired in minutiae. At the risk of repeating one of my posts,

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.

Directing this question at JMc, l'm still trying to envision a sliver of daylight between the two. When the text is clear, you're constrained by the text. Where there is material ambiguity, you try to figure out what the lawgivers had in mind (Heydon's Case).

King v. Burwell marks the outer limit of this doctrine. The Court was obliged to find a construction of the ACA that rescues it, under the premise that Congress would not consciously attempt to do a futile thing. But then again, neither the Framers' generation nor their learned British predecessors had met our Republican Congress.... :)

You can make a compelling argument that Congress went too far. You can also make one that their treaty compliance obligations authorized it (no one did, but then again, no one paid me to). And yes, the Roberts decision echoes another "switch in time that saved the Nine."

Roberts's decision was overtly political. But then again, so are a lot of Roberts Court decisions.

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LawDog
on September 01, 2017 at 10:50:52 am

I've never understood the practical utility of these competing philosophies of constitutional construction. If we all agree that the Supreme Court has been the bull in the constitutional china shop since at least 1857, then these highly nuanced arguments about how the Constitution should be construed are useless.

I think the correct course is to simply limit the Supreme Court to its original jurisdiction and create a new constitutional court that is forbidden to use stare decisis. Then, the court would be forced to consider only the language of the Constitution itself. Should this new court from time to time find that a case presents a question and requires a decision that applies nationally and not just to the individual litigants, then, following Art. 5, their decision would not have any effect until it had been approved by 2/3 of the House and Senate and ratified by the states.

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EK
on September 01, 2017 at 11:16:37 am

Problem is, maxims have a nasty habit of canceling each other out.

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LawDog
on September 01, 2017 at 12:38:44 pm

EK: "I think the correct course is to simply limit the Supreme Court to its original jurisdiction and create a new constitutional court that is forbidden to use stare decisis."

While you have shown that you are no intellectual lightweight, l thought you had a better grasp of ConLaw than this. The Court's original jurisdiction is plenary. Article lll provides, in pertinent part.

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." [Sec. 1]

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." [Sec. 2]

SCOTUS is charged with three tasks. First, it is a supreme court, having a duty of superintendence over all lower courts. Justice James Wilson--a literal author of Article lll-explains:

"To express myself without a metaphor—in every judicial department, well arranged and well organized, there should be a regular, progressive gradation of jurisdiction; and one supreme tribunal should superintend and govern all the others.

An ar[r]angement in this manner is proper for two reasons. 1. The supreme tribunal produces and preserves a uniformity of decision through the whole judicial system. 2. It confines and it supports every inferior court within the limits of its just jurisdiction.
'
If no superintending tribunal of this nature were established, different courts might adopt different and even contradictory rules of decision; and the distractions, springing from these different and contradictory rules, would be without remedy and without end. Opposite determinations of the same question, in different courts, would be equally final and irreversible."

2 The Works of James Wilson 149-50 (J. D. Andrews ed., 1896). This power must exist, or it would be impossible to enforce the Supremacy Clause (art. Vl, cl. 2).

Second, in certain classes of case, SCOTUS is a court of original jurisdiction. And as this jurisdiction was expressly conferred by COTUS, Congress can't divest them of this jurisdiction.

[The most egregious case of RW judicial activism in recent memory is Alden v. Maine. "In all Cases ... in which a State shall be Party, the supreme Court shall have original Jurisdiction." By definition, a State cannot "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," 14Am, § 1, and as a matter of law and logic, a State could be sued directly for its agents' tortious acts -- and the constitutionally prescribed forum is SCOTUS. See e.g., John Paul Stevens, “Two Questions About Justice,” 2003 Ill. L. Rev. 821, 824 (historical analysis proving that the 11Am does not preclude such suits). But the two brightest lights of originalism--Scalia and Thomas--wiped their diarrhea-covered hemorrhoids with their "scholarship."]

Their third assigned task is that of appellate jurisdiction. Read literally, Congress could take ALL of their appellate jurisdiction away (in England, other courts had final appellate jurisdictions within their assigned bailiwicks), but they haven't.

At the end of the day, SCOTUS has no colorable authority to expand its jurisdiction or write law sua sponte. Congress has limited authority to restrict its jurisdiction, but has not exercised it. As such, your statement above makes no earthly sense.

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LawDog
on September 01, 2017 at 13:19:19 pm

Having laid the foundation (admittedly, a bit pedantic) for my comments above, let me address your proposal directly:

EK: "If we all agree that the Supreme Court has been the bull in the constitutional china shop since at least 1857"

The competing philosophies of construction establish when SCOTUS has gone off the reservation, and when it has not. As much as conservatives hate to hear it, Engel v. Vitale, Roe, and Obergefell are originalist decisions. But if you follow the Bork/Meese paradigm, they aren't defensible. And if we adopt Larry Tribe's view, COTUS means whatever the judge says it means. That is why how you translate law into decisions matters.

EK: "I think the correct course is to ... create a new constitutional court that is forbidden to use stare decisis."

There are an array of compelling reasons not to go down that rabbit hole. The doctrine of stare decisis creates a reliance interest, allowing people to plan their affairs with confidence and bolstering public faith in the judiciary as “a source of impersonal and reasoned judgments." Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970). Conversely, if a judge is free to decide a case one way on Tuesday, and decide a factually indistinguishable case the other way on Thursday, it shatters the illusion of the rule of law. Significant uncertainty in application of the law impairs everyone’s liberties, for if “one must guess what conduct or utterances may lose him his position, one necessarily will ‘steer far wider of the unlawful zone,’” Speiser v. Randall, 357 U.S. 513, 526 (1958).“ “Liberty finds no refuge in a jurisprudence of doubt.” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 844 (1992). Professor (Justice) Joseph Story adds:

"A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.

This known course of proceeding, this settled habit of thinking, this conclusive effect of judicial adjudications, was in the full view of the framers of the constitution. It was required, and enforced in every state in the Union; and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the exercise of mere discretion, and to the abandonment of all the just checks upon judicial authority."

J. Story, Commentaries on the Constitution of the United States §§ 377-78 (1833). Stare decisis is not a straight-jacket, but a corset. lt limits judicial discretion, which is the whole point.

EK: "[T]he court would be forced to consider only the language of the Constitution itself."

There is almost not a case worth litigating that doesn't require you to go outside the realm of that 9,000-word document. lf you are going to decide whether a judge has violated his good behaviour tenure, you will have examine CL precedent defining the term. lf you want to know whether a new courtroom procedure violates the 7Am, you'll have to know what a proper jury trial looked like in 1791. Can't be avoided.

EK: "Should this new court from time to time find that a case presents a question and requires a decision that applies nationally and not just to the individual litigants,"

For equal justice under law to be established, the decision in Smith v. Jones can't be different from Brown v. Martin. There isn't a single case that would fall into your proposed basket of deplorables.

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LawDog
on September 01, 2017 at 18:03:30 pm

Let's read Art. III together:

§ 1. The judicial power is vested in the supreme Court, and in such inferior courts as the Congress may . . . establish.

[It follows that the judicial power is divided between Congress and the Supreme Court and that Congress is the check on the Supreme Court.]

§2 The judicial power [which is shared between the S. Ct. and Congress] shall extend to all cases, in Law and Equity, arising under the Constitution, the Laws of the United States, and Treaties made . . under their Authority; - to all Cases [types of cases are then listed].

In all cases affecting Ambassadors, other public Ministers and Consuls [I believe the early case law established that these are the diplomatic ministers and consuls of foreign countries], and those in which a State shall be a Party, the supreme Court shall have original jurisdiction. [This is the S.Ct's original jurisdiction that Congress cannot touch]. In all other cases before mentioned [see: para. 1, §2, for the list] the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, WITH SUCH EXCEPTIONS AND UNDER SUCH REGULATIONS AS CONGRESS SHALL MAKE.

Clearly Congress is the constitutional check on the judiciary and, aside from the S.Ct.'s original jurisdiction, the rest of the judicial power is vested in Congress.

Congress can amend the Judiciary Act at any time. It can strip the S.Ct. of its jurisdiction to hear any cases except those covered by the S.Ct.'s original jurisdiction. Congress can create new courts and Congress can decide what kinds of cases these courts can hear and rules these courts shall use.

Your last sentence suggests you agree that Congress can do it. Neither the S.Ct.'s nor Congress's judicial power is plenary but Congress has so much more of the judicial power than the S.Ct. I think it fair to say that in theory, the S.Ct. is very much at the mercy of Congress.

I don't see that we disagree.

It should be clear to you that I think the Supreme Court's jurisdiction needs be to severely limited. It has done more than enough damage over the course of its miserable existence.

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EK
on September 01, 2017 at 18:04:59 pm

I'm not impressed.

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EK
on September 02, 2017 at 10:10:45 am

As Judge Alex Kozinski opines in Hart v. Massanari,

Case precedent at common law thus resembled much more what we call persuasive authority than the binding authority which is the backbone of much of the federal judicial system today.   The concept of binding precedent could only develop once two conditions were met:  The development of a hierarchical system of appellate courts with clear lines of authority, and a case reporting system that enabled later courts to know precisely what was said in earlier opinions.   See note 21 supra.   As we have seen, these developments did not come about-either here or in England-until the nineteenth century, long after Article III of the Constitution was written.

I argue in How stare decisis Subverts the Law, http://constitution.org/col/0610staredrift.htm that not only is stare decisis not an original rule of construction, it is actually logically inconsistent with the Constitution as originally understood.

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Jon Roland
on September 02, 2017 at 10:31:56 am

Contrary to LawDog, maxims do not all cancel one another out, if applied correctly. The maxims I cited would exclude the dictum in McCulloch v. Maryland (treated as edict) that the "necessary" in "necessary and proper" means merely "convenient. It really does mean necessary. And not necessary to get a desired outcome, but only to make a certain kind of effort, whether effective or not. If that rule were applied, Wickard v. Filmore and all the cases based on it, would fall.

So would all the precedents supporting criminal enforcement of regulatory, promotional, taxing powers, And common law crimes like fraud, perjury, and contumacy.

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Jon Roland
on September 02, 2017 at 10:37:16 am

The first three rules of statutory interpretation is to read the statute, read the statute, and read the goddamn statute. Here's the dispositive phrase: "and in such inferior courts."

lf you read less Leveller and more Montesquieu and Federalist Papers, you'd know why you were so far up the creek without a paddle. Quoting Montesquieu, Hamilton writes: "For I agree, that 'there is no liberty, if the power of judging be not separated from the legislative and executive powers.'" Fed. #78. For good or ill, the Framers decided consciously to keep Congress's paws off of the judiciary:

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing." ld.

All that Section 1 does is empower Congress to create district, appellate, and specialty courts, as was the case in Britain. There is no merit to your eisegetical reading.

EK: "Your last sentence suggests you agree that Congress can do it. Neither the S.Ct.’s nor Congress’s judicial power is plenary but Congress has so much more of the judicial power than the S.Ct. I think it fair to say that in theory, the S.Ct. is very much at the mercy of Congress."

Not even in the right time zone. Congress can create as many additional Article lll courts as they please, but they will still be Article lll courts, with the same legal independence. While l do advocate taking appellate jurisdiction from SCOTUS, it is on the ground that they have neglected their duty of superintendence, effectively abolishing equal justice under law.

EK: "It should be clear to you that I think the Supreme Court’s jurisdiction needs be to severely limited. It has done more than enough damage over the course of its miserable existence."

You might as well come out and scream it: "l HATES those icky gays, My Precious! Gollum!" if they had outlawed elective abortion, kept mandatory school prayer, and prevented Barry and Gary from getting married, you would be happy as a clam. Scalia responds:

"Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences."

As an originalist, l don't claim the luxury of demanding the constitution that l want; l have to accept the one l have.

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LawDog
on September 02, 2017 at 10:40:38 am

An example of violation of due process as practiced i n 1789 would be the practice of requiring legal motions and briefs to be filed with the court, and decided before the jury is seated. The original standard was that all such motions had to the argued to the jury as well as to the judge, so that they could decide whether the judge made the correct decision. The jury is the ultimate authority on the law (in favor of the defendant in a criminal case), and they can't make an informed decision if they don't hear the arguments.

Stettinius v. United States, 22 F. Cas. 1322 (1839); 5 Cranch C.C. 573

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Jon Roland
on September 02, 2017 at 11:12:40 am

Understand where maxims came from. They are statements of legal principle--what CJ Roberts called "precedent on precedent." They are not hard-and-fast rules of positive law, so much as they are guidelines. And more importantly, there are no rules as to which rules trump conflicting ones. By way of example, under the rule of Charming Betsey, national statutes should be interpreted in such a way that the interpretation does not conflict with international laws. The list of maxims it could conflict with would fill a chapter. When does the Betsey canon control?

As Madison said: "‘No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized.’" Fed #44. With respect to a national bank, why doesn't that maxim trump your maxims? l'm not dictating an answer (that water is long under the bridge), but rather, raising the issue.

Jon: "So would all the precedents supporting criminal enforcement of regulatory, promotional, taxing powers, And common law crimes like fraud, perjury, and contumacy."

Fraud was a common-law crime long before the Framing; to suggest that it could not be a federal crime is giggleworthy. English law is a practical check on your interpretation of COTUS: lf you get a weird result like this, you are on notice that it is probably suspect. Not that it is necessarily wrong, but that you ought to check your work.

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LawDog
on September 02, 2017 at 11:17:33 am

You're preaching to the choir. GA v. Brailsford, 3 U.S. 1, 4 (1793).

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LawDog
on September 02, 2017 at 11:53:40 am

Jon: "It is difficult to estimate how many unconstitutional legislative provisions are adopted each year by Congress, but a plausible number is more than 20,000, or about as many as the number of bills introduced each year."

Doesn't pass the smell test.

Jon: "not only is stare decisis not an original rule of construction, it is actually logically inconsistent with the Constitution as originally understood."

No sale.

The Framers of our Constitution envisioned judges as interpreters of the law, as opposed to its (self-appointed) authors. Alexander Hamilton explained 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. Blackstone observed that a judge’s duty to follow precedent was derived from the nature of the judicial power itself: a judge is “sworn to determine, not according to his own judgments, but according to the known laws.” 1 Blackstone, Commentaries on the Laws of England 69 (1765). 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 Laws of England 51 (1642). As in all but the most exotic cases, the law has been clearly established, the judge is expected to be little more than an administrator, playing what Professor Llewellyn called “the game of matching cases.” Karl N. Llewellyn, The Bramble Bush 49 (1960). ln the prose of Jefferson, "a mere machine."

The late Judge Arnold adds:

"To summarize, in the late eighteenth century, the doctrine of precedent was well-established in legal practice (despite the absence of a reporting system), regarded as an immemorial custom, and valued for its role in past struggles for liberty. The duty of courts to follow their prior decisions was understood to derive from the nature of the judicial power itself and to separate it from a dangerous union with the legislative power. The statements of the Framers indicate an understanding and acceptance of these principles. We conclude therefore that, as the Framers intended, the doctrine of precedent limits the "judicial power" delegated to the courts in Article III. No less an authority than Justice (Professor) Joseph Story is in accord. See his Commentaries on the Constitution of the United States §§ 377-78 (1833):

"The case is not alone considered as decided and settled; but the principles of the decision are held, as precedents and authority, to bind future cases of the same nature. This is the constant practice under our whole system of jurisprudence. Our ancestors brought it with them, when they first emigrated to this country; and it is, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles."

This known course of proceeding, this settled habit of thinking, this conclusive effect of judicial adjudications, was in the full view of the framers of the constitution. It was required, and enforced in every state in the Union; and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the exercise of mere discretion, and to the abandonment of all the just checks upon judicial authority." Anastasoff v. US, 223 F. 3d 898, 903-04 (CA-8, withdrawn).

The problem is not stare decisis (which binds judges), but a lack of meaningful appellate review (to flush bad precedent out of the system).

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LawDog
on September 02, 2017 at 11:57:12 am

That is your fault, for misreading the controlling statute. But don't feel bad: everyone does it.

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LawDog
on September 02, 2017 at 12:20:01 pm
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gabe
on September 02, 2017 at 13:15:23 pm

Thank you for the link to your original article. I'm sure I had heard of it in the past but that was third hand, at best. What did stick in my mind was that stare decisis was the problem and that is something no one whose practice or interests involved the Bill of Rights and particularly the Amendments IV, V and VI could fail to appreciate.

Thank you again; your Venn diagram accurately reflects my experience. Try arguing to a district court on behalf of a private and near indigent defendant that the plain language of the Forth, Fifth or Sixth Amendments, as interpreted by defendant's humble counsel, should out weigh 50 years of the Supreme Court's on point precedent.

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EK
on September 02, 2017 at 13:37:36 pm

The Constitution and court decisions are to serve the people, as of 1788, not reliance interests. If a later decision follows the Constitution as originally understood, and does not protect reliance interests, that is just too bad. We are not proposing to put them up against a wall. They make a pill for that. They'll get over it.

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Jon Roland
on September 02, 2017 at 14:18:09 pm

Often. Whenever l have to answer a tax question, l always start with the Code; l don't rely on memory.

Same w/COTUS. The best analytical tool when reading a provision is to figure out what the drafters were trying to do. See Heydon's Case.

The core problem here is that you aren't willing to let COTUS speak for itself.

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LawDog
on September 02, 2017 at 16:01:57 pm

Dawg:

Fair enough. Again, let us not start hurling charges against ALL who may read into, (or OUT of) COTUS) a somewhat different understanding than do you.

Surely, you recognize that I also look to "what the [c]rafters were trying to do." i have so commented. Yet, history is not quite so determinate as we may, at times, wish it to be. As an example, you cite Hamilton upholding a "certain" role for the Judicial. Yet, one could offer (which I refuse to do) some "dueling" quotations, in which Hamilton, in response to a critique of the proposed COTUS by an anti-Federalist, attempts to assure the poor fellow that the Judicial shall be the weakest of the Branches. so what are we to make of these "dueling' comments by Hamilton. What is one to infer from this.

Heck, if I know - except that it is, to my mind, preferable to allow for a certain level of disagreement with the opposing viewpoint.

Now - College Football (and Gold playoffs) begin. to the TV remote with you, my Dawg friend!!!!

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gabe
on September 02, 2017 at 16:14:26 pm

Hamilton was referring to post-ratification precedents, the common law of the United States, not that of Britain. Blackstone was commenting on English law, not American.

The Constitution represents one formal logical system. Stare decisis another. Different premises. It is only coincidence if they agree, and if they do not that is logical inconsistency. The precedent to which the courts are bound is the provisions of the Constitution itself, not court decisions.

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Jon Roland
on September 02, 2017 at 16:26:16 pm

There is no such thing as "international laws", because there is no law without a sovereign, and there is no sovereign over nations. You are thinking of jus inter gentes, treaties, which are not superior to the Constitution and its laws. Don't confuse that with the law of nations, jus gentium, which is common law of nations, but without a sovereign, so not law at all, just custom.

Yes, if the end is required, the means is authorized, but the power to regulate is not the power to establish ends, only means, and means do not extend to doing anything that might be required to achieve them. Not a weird result.

U.S. v. Hudson and Goodwin is a (correct) precedent that there is no criminal common law under the Constitution. Although the opinion is sparse, it arises because in common law courts the crime is not defined until after the verdict is given, which makes all criminal common law ex post facto.

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Jon Roland
on September 02, 2017 at 16:27:40 pm

So why don't lawyers insist on arguing law to the jury? It is too easy to go along.

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Jon Roland
on September 02, 2017 at 16:33:52 pm

Interpreters of the law, but what is not based on the Constitution is not law. It is only something with the appearance of law.

Note that "the Code", as in USC or USR, is not the law, but only evidence of the law, compiled by the Office of law Revision Council in the House of Representatives.

And, no, there is actually no law that requires one to file returns or pay taxes.

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Jon Roland
on September 02, 2017 at 16:38:18 pm

Betsy was the Court deciding as a court of equity, not as a court of law, in a situation in which the statutes lacked locum jurisdiction. Those are not supposed to be treated as precedents.

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Jon Roland
on September 02, 2017 at 18:39:36 pm

Actually, establishing the ends does not establish the means. The Preamble establishes the ends, but the means are left to the rest of the Constitution. sometimes provided and sometimes not.

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Jon Roland
on September 02, 2017 at 19:12:01 pm

gabe: "Again, let us not start hurling charges against ALL who may read into, (or OUT of) COTUS) a somewhat different understanding than do you."

l wouldn't do that to anyone who had a plausible argument for his position. Problem is, your stated position is so out there in the ionosphere that there is literally NO support among the Framers for it. But more importantly, you already unzipped your fly....

gabe: "My Goodness, DAWG, talk about a religious disposition / prejudice that you attribute to Paul – check out yoyur own zealotry and count up your own “sacraments” – abortion (the Holiest of Holies now comfortable ensconced in the new Tabernacle of Planned Parenthood,"

l stand by my assessment: You are trying desperately to come up with a COTUS that will enable you to force your (religious) vision on America. lt's like putting lipstick on a pig,

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LawDog
on September 02, 2017 at 22:17:58 pm

Jon: "Hamilton was referring to post-ratification precedents, the common law of the United States, not that of Britain. Blackstone was commenting on English law, not American."

And you know this how??? there were an other-worldly 1,000 copies of Blackstone on this side of the Pond, and citations to it were ubiquitous. There wasn't an Americanized version before St. George Tucker compiled one.

JR: "The Constitution represents one formal logical system. Stare decisis another. Different premises."

Stare decisis is just a maxim by which we efficiently administer the law. lt is an intellectual shorthand, designed to ensure that you will get the same treatment as your neighbor Bob. Sandy Dee explains:

"The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. See B. Cardozo, The Nature of the Judicial Process 149 (1921). Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. See Powell, Stare Decisis and Judicial Restraint, 1991 Journal of Supreme Court History 13, 16. At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.

Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an "inexorable command," and certainly it is not such in every constitutional case. Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability, whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification...."

Or whether it is just plain wrong.

That was the purpose of a writ of error and writ of cert: lf your neighbor Bob got screwed, you weren't stuck with the same bad decision. But if there was precedent, SD meant that you could (in theory) rely on it. Today, you can't even rely on a Supreme Court precedent on point--but that is not the fault of SD.

JR: "And, no, there is actually no law that requires one to file returns or pay taxes."

Don't try this one at home, folks!

"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived...." The 16Am is an integral part of COTUS.

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LawDog
on September 03, 2017 at 07:59:09 am

First, the income tax amendment was not ratified. The alleged ratification was a fraud.

Second, "income" was not defined. At the time it only meany earnings on property, such as dividends, interest, and rent. It did not include compensation for labor.

See http://www.constitution.org/ica_ltnw.htm and http://www.constitution.org/tax/us-ic/dickstein/jtyit-1.html

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Jon Roland
on September 03, 2017 at 08:04:02 am

It would not be an intolerable burden on judges to analyze the historical derivation of provisions of the Constitution in every case. If they did more of that the process would become easier.

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Jon Roland
on September 03, 2017 at 08:05:51 am

If you want to examine examples of judicial corruption, just examine tax cases. On that subject the courts are thoroughly corrupt.

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Jon Roland
on September 03, 2017 at 15:59:19 pm

I read through this thread twice. It may be that we are all failing to notice that there are three kinds of law. In ascending order they are the Anglo-American common law, statutory or code law and the Constitution.

The US Constitution was sui generus in 1789. It diverged sharply from the Anglo-British unwritten constitution in that the intent was that it should be a covenant between the governed and the federal government aimed at limiting the power of the federal government over the several states and the individuals living in those states. The only right the Constitution guaranteed the people at large was that they should enjoy a republican form of government and due process and jury trials in the event that an individual should find himself in a federal court. All of the other provisions deal with the federal government vis-a-vis the states. As ratified, the Bill of Rights applied only to the dealings between the federal government and individuals living in sovereign states. The Civil War amendments changed that in that the civil status of "slave" was abolished, certain individual were made citizens of the states they were born in and the states were required to extend due process and equal protection to all its citizens.

LawDog consistently conflates common law with statutory law with constitutional law. He assumes without explanation that the rules developed for deciding common law cases since the reign of Edward III should apply when construing the constitution of a democratic republic. This is totally without merit and suggests an ideologue or a reactionary bigot. But its his opinion and a common opinion at that.

Stare decisis's natural environment is the common law in matters that can be conveniently described as actions on the case and in assumpsit, real property and tenures and archaic civil statuses. Stare decisis has some role in statutory or code law but the legislature can alter both the common law and statutory law at will, as needs be, without reference to past judicial decisions.

We both agree, but LawDog does not, that stare decisis is anathema to constitutional law. Since the Constitution of 1789 was a sharp break from the English unwritten constitution, arguments that rely on English or British president are quite misplaced.

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EK
on September 04, 2017 at 06:39:00 am

EK: "LawDog consistently conflates common law with statutory law with constitutional law. He assumes without explanation that the rules developed for deciding common law cases since the reign of Edward III should apply when construing the constitution of a democratic republic. This is totally without merit"

Antonin Scalia would respectfully disagree with your assessment:

"[T]he foreign law I think is relevant is very old foreign law -- [laughter] -- very old English law. Because what is meant by the terms of the Federal constitution is dependent upon what Englishmen in 1791 considered to be due process of law, or what they considered to be cruel and unusual punishment. So I use foreign law all the time -- but it is all very old English law."

Rather than re-invent the wheel, the Framers used the system they knew. In the course of debate at the Virginia Ratification Convention, Madison asserted that "where a technical word is used, all the incidents belonging to it necessarily attended it." 3 Elliot, Debates on the Federal Constitution 531 (1836). This view was invoked by Judge Pendleton, John Marshall, and Edmund Randolph in subsequent debate. Id. at 546, 558-9, 573. And they knew where to look.

ALL of the terms of art they used were taken from English law. Without exception.

Review the All-Writs Act. All of the writs are taken from English law, and carried the same meaning. Again, without exception.

When young American attorneys "read law," they read Blackstone and Coke. Over 1,000 copies of Blackstone had been imported. The common law was the common law, from Surrey to Sydney.

As for ‘conflation’ of the CL, ConLaw, and statutory law, COTUS basically commands it. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Art. Vl, cl. 2.

Let's parse this through. COTUS includes almost no positive law. lts purpose is to construct a framework for our government and thereunder, there are three sources of "supreme Law": statutes, treaties, and Amendments. For instance, while Congress is given express authority to "ordain and establish" inferior courts, it must enact a statute to do so. And what you don't appear to understand is that a properly enacted treaty is just as much the Law of the Land as any federal statute. Why? Because Art. Vl SAYS so.

What Jon has said about constitutional supremacy is only true from a certain point of view. COTUS is a sort of legal Decalogue, replete with vague "thou shalt nots." As such, as long as our agents act within the scope of their authority, they can enact any statute or enter into any treaty that they damn well please. lf they choose to enact universal health care, all they have to do is enter into a treaty guaranteeing HC for all citizens (they already did). As there are no limitations on the scope of a treaty, the strictures of Art. l are inapplicable. The ACA is constitutional, but not for the reasons you thought.

The maxims of English law aren't accepted as "precedent on precedent" because they were laid down before her first settler set foot on American soil--that would be both barbaric and nonsensical--but rather, they are incorrigible axioms. One of the best-known ones is that a legislative body is presumed to have "said what they meant and meant what they said" in a statutory enactment, and if the statute is clear, judicial inquiry is complete. That axiom goes back to the time of Coke, at least.

What l find amusing, in light of your stilted interpretation of English law, is Jon's militant tax protestor reading of the 16Am. "But 'income' means X!" There is no intrinsic reason why Congress is precluded from defining income in such a way as to include compensation for services, as it is hard to assert that that wasn't exactly what they had in mind when they enacted the 16Am. Words have meaning, and he who crafts the statute gets to choose what that meaning is.

EK: "The US Constitution was sui generus in 1789."

Not only was it not sui generis, but significant portions were borrowed verbatim from State constitutions. COTUS was quite literally a treaty, with conceptual precursors including the Swiss confederation. You can trace the concept to OT days, where vassal lords would enter into a treaty of suzerainty. Justice lredell described it as a "great power of attorney," which anyone conversant with agency and contract law would recognize instantly.

EK: "We both agree, but LawDog does not, that stare decisis is anathema to constitutional law."

lt doesn't appear that Jon has staked out that extreme and unsupported position. The notion that demonstrably erroneous decisions are somehow encased in legal amber is absurd, and it appears that Jon understands most of the nuances. Gary Lawson's presentation (article) is a fair summation of my position.

EK: ...the Constitution of 1789 was a sharp break from the English unwritten constitution"

How so? Again in the words of Justice Scalia, the Framers "understood when they ratified this Constitution was that they were affirming the rights of Englishmen. So to know what the Constitution meant at the time, you have to know what English law was at the time." Bottom line, they abolished parliamentary supremacy and diffused that power among the branches of government, for the purpose of preserving their rights.

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LawDog
on September 04, 2017 at 06:49:08 am

"Boni Judicis est Ampliare Jurisdictionem." It is the part of a good judge, the maxim goes, to expand his jurisdiction. The American judiciary has taken that maxim to heart, as the short history of American jurisprudence is judges, grasping for power. The overpowering role of the modern federal judiciary would have surprised Hamilton and mortified Jefferson; in later letters, he repeatedly warned recipients of the storm that was certain to come. “The constitution … is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.” Thomas Jefferson, Letter (to Spencer Roane), Sept. 6, 1819 at 1.

More to the point, our imperious judiciary has written a “constitution” no sentient human being would ever voluntarily consent to. It declares -- with scarcely even a whiff of subtlety -- that the former Republic once known as the United States of America is a regime, governed by a "judicial oligarchy," Robert H. Bork, Our Judicial Oligarchy, First Things 67 (Nov. 1996) at 21, brought about by what he accurately described as a "judicial coup d’êtat." R. Bork, Coercing Virtue: The Worldwide Rule of Judges (New York: AEI Press, 2003), at 13.

An attorney would be disbarred for attempting it and the effort itself, one of futility. Unless and until we can restore the Framers' 7Am jury trial, it would be a fool's errand. But then again, you won't call for the use of violence--permitted as against a tyrant. lt is too easy to go along.

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LawDog
on September 04, 2017 at 08:13:55 am

That isn't technically true, for reasons so subtle that l despair at trying to explain to you. lf 13 independent American nation-states can cede a major portion of THElR sovereignty, it logically follows that other nations can, as well.

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LawDog
on September 04, 2017 at 09:49:10 am

The logical inconsistency arises from the position of stare decisis, that court opinions, not the Constitution, is the supreme law. No, the Constitution is not whatever judges say it is. Legal realism is itself contradictory to the Constitution.

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Jon Roland
on September 04, 2017 at 09:52:07 am

The clear break is found in the words, "This Constitution is the Supreme Law of the land." That means it trumps all precedent and whatever judges say. Including all common law before 1788.

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Jon Roland
on September 04, 2017 at 12:51:51 pm

Huh? Statutory law ALWAYS trumps any pre-existing and contrary common law. But the mechanism by which we interpret that law doesn't change, which is why your conclusion is FUBAR.

The actual passage states: "This Constitution, AND the Laws of the United States which shall be made in Pursuance thereof; AND all Treaties MADE, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."

The Continental Congress entered into a number of treaties. ln uttering the phrase "all treaties made" (notice the past-tense!), the drafters are sending the message that those treaties shall remain in force, and that the CC still had full legal authority to bind the US during the ratification process. Ergo, it literally cannot mean what you claim that it does.

The Supremacy Clause is also about hierarchy. When we enter into a treaty, it becomes an integral part of the supreme law of the land. But what happens if a treaty contradicts COTUS? Or a pre-existing statute? lf you read the SC literally, you can't tell! The Framers are incorporating the last-in-time rule. Thereunder, the BoR modifies Art. l, which means that President Kamala Harris and her Democratic Congress can't wake up one morning and abolish the RKBA; any such attempt would be void ab initio.

How does Congress bust a treaty? Simple. Enact a statute incompatible with its intended purpose. This is why we have the Rule of Charming Betsey (otherwise, judges could bust a treaty sua sponte), almost enacted the Bricker Amendment, and include a Reid v. Covert reservation to every treaty we ratify.

(The way we ratify treaties is theoretically FUBAR: We enter into an arrangement with an implicit promise to conform our laws to the treaty, conform our laws, and then ratify the treaty. The argument that Congressional authority to conform our laws is to be found in the N/P Clause is tenuous at best, but that is how we do things.)

This is how it works, and in a way you seem to approve of (l've read a lot of your work over the years), more or less. Don't fear this reaper; it is more like a McCormick thresher.

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LawDog
on September 04, 2017 at 12:55:03 pm

The maxim cited in the Federalist does not assert that ANY means are provided but rather, that SOME means will be available.

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LawDog
on September 04, 2017 at 12:57:05 pm

l agree entirely. See Lawson's LR article; it is in general conformance with my thinking on the subject.

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LawDog
on September 04, 2017 at 12:58:42 pm

You are entitled to that opinion, but l'll send a file in your b'day cake if you should ever find the 'nads to act on it. :)

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LawDog
on September 04, 2017 at 13:00:20 pm

JR: "If you want to examine examples of judicial corruption, just examine tax cases. On that subject the courts are thoroughly corrupt."

ln my experience, you are more likely to get a fair opinion in Tax Court than any other federal court.

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LawDog
on September 04, 2017 at 13:03:49 pm

JR: "It would not be an intolerable burden on judges to analyze the historical derivation of provisions of the Constitution in every case."

ln 90-95% of cases, appellate judges don't even bother reading the opinions they deliver; guaranteed that they haven't read your briefs. Even at the trial court level, judges admit that they have been trained to get rid of pro se civil rights cases, and that they don't read briefs. And you are asking them to do WHAT?

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LawDog
on September 04, 2017 at 19:32:15 pm

Hey Dawg:

Good catch on the "All treaties made" and the CC. what a dolt I am, I had always overlooked that - yet, in retrospect it appears eminently sensible - if not inevitable.

Yet, I am still not so certain as are you re: "the last-in-time" rule. Clearly, no Law made in pursuance thereof can (properly) contradict the COTUS - but can a Law made in pursuance of a Treaty be made - then *accepted* that is in contradiction to COTUS. As you say - SCOTUS is just a tad bit fuzzy on this - and again, you are correct, let the Legislative "bring forth" from the mountain a new statute undermining the Treaty - yet, the question remains - What will the Jesuits (Black Robes in common parlance) think of this - AND lastly - should we really care?

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gabe
on September 05, 2017 at 12:57:52 pm

gabe: "Good catch on the “All treaties made” and the CC. what a dolt I am, I had always overlooked that – yet, in retrospect it appears eminently sensible – if not inevitable."

Everything in COTUS is "sensible" and arguably, inevitable. lt's an elegant document. lf your interpretation doesn't make sense, you're probably wrong. Every conclusion has to meet that acid test. Even when l don't approve of the outcome.

Jon and l have corresponded; his takes are usually pretty solid. But he's wrong here and probably, on the 16Am (minor technical flaws in a law are generally overlooked, and the Congress that wrote the Amendment has some liberty to define terms). But disputes of this nature tend to be on the margins; it is like arguing that individual states have a legal right to secede (in theory, they do; in practice, YMMV).

To be a constitutional exegete, you have to leave your "wants" at the door. From Meese and Bork to Scalia and even (to some extent) Randy Barnett (who, fwiw, l am a huge fan of), there is the natural tendency to want to make COTUS say what you want. By way of illustration, l'm an old codger, and tend to turn off the telly when two gay men kiss. But COTUS says "they're queer and have a right to be here." lf l have a problem with it, l have to solve it. (And btw, living in SF tends to cure your homophobia.)

The "last-in-time rule" is a logical one. Without it, you would have to figure out all of the pre-existing legislation (including some regulations) that conflicts with it, and go through the considerable brain damage of repealing it all. By way of example, let us say that Sen. Sanders introduces a one-page "Medicare for all" bill. How much legislation would THAT overturn?

The problem with the Treaty Power is that there are literally no limitations on its scope, and that a treaty provision is equal to a constitutional amendment per art. Vl. As such, it is theoretically possible for the government to disembowel the RKBA by entering into a "Small Arms Treaty," or the 1Am via a "Hate Speech Treaty." Senator Bricker tried to fix this via constitutional amendment in the '50s; the Court dealt with this in Reid v. Covert. We deal with this potential problem in two ways: We always attach a RvC reservation to every treaty we ratify, and conform our laws to the treaty, so that the only recourse is to domestic law for parties who have enforceable rights emanating from the treaty. This is in possible violation of the N/P Clause, though it is unlikely that the practice will ever be tested (see Baker v. Carr, in re "political questions"). But it is entirely fair to say that we have solved that problem.

The problem lies--as it always does--with the judiciary. Much as every Catholic priest is a child sexual assault case just waiting to happen, every federal judge is a serial felony just waiting to happen. When judges don’t like a law, they interpret it out of existence and when they can’t do that, they often indulge in fabrication of fact. Professor Karl Llewellyn writes that judges routinely

"manhandl[e] ... the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach."

Karl Llewellyn, The Common Law Tradition: Deciding Appeals 133 (1960).

When judges ‘cook the books,’ the stench is unmistakable. As Llewellyn goes on to write, “[s]uch action leaves the particular point moderately clear: the court has wanted [the result] badly enough TO LIE to get it.” Id. at 135 (emphasis added). And they know that no one can stop them. This is why the elder Harlan could confess without guile that “if [this Court] don't like an act of Congress, we don't have much trouble to find grounds for declaring it unconstitutional.” Alphaeus T. Mason, The Supreme Court from Taft to Warren vii (La. St. U. Press, 2d ed. 1968).

Let's put this in the context of treaties. ln 1994, we ratified the International Covenant on Civil and Political Rights, which serves as an international Bill of Rights. As such, it is the supreme Law of the Land under art. 6, cl. 2. The sole purpose of this treaty was to ensure that these rights were enforceable (it is substantially identical to the old UDHR, which was strictly hortatory. Our State Department warranted to the rest of the world that our laws were in compliance with it. See "noncompliance" sub-section in Wikipedia https://en.wikipedia.org/wiki/International_Covenant_on_Civil_and_Political_Rights This should be enough to render it enforceable.

But judges don't like it very much, as it is a direct threat to judicial immunity. As such, they have treated it as a legal nullity. Why? Because they can.

Should we care? Guess it all depends on how you feel about your "Ruler, and the Ruler of 320 million Americans coast-to-coast, [being a bare] majority of the nine lawyers on the Supreme Court." Obergefell (Scalia, J., dissenting). Scalia enjoyed ruling us so much that he was willing to work for free ... but when he wasn't a part of the majority, he howled so loud, you could hear him on Mars. My view matches that of Abraham Lincoln: "no man is good enough to govern another man, without the other’s consent," Abraham Lincoln, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854, and COTUS is the outer limit of my consent. If you would not willingly suffer my absolute rule, by what right do our black-robed band of Ba'athists claim absolute rule over me? See, John Dickenson and Thomas Jefferson, Declaration of Causes and Necessity for Taking Up Arms, Continental Congress (U.S.), Jul. 6, 1775.

"Live free or die." lt is either a motto or a shibboleth; the rest is up to you.

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LawDog
on September 05, 2017 at 15:41:58 pm

A treaty is on the same level as a statute, and can be repealed like a statute. It is not an amendment, and is inferior to the Constitution. A treaty cannot add any new powers to Congress not delegated to it by the Constitution. So a treaty to provide healthcare can be superseded by any subsequent statute. See Reid v. Covert, 354 U.S. 1 (1957)

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Jon Roland
on September 06, 2017 at 09:56:16 am

More Scripture, less dogma. Jon. The technically correct answer is more subtle.

First, Congress doesn't negotiate treaties; the Senate ratifies them.

What are the limitations on the scope of the Art. ll Treaty Power? NONE! This means that while Congress shouldn't be able to enact nationalized HC on its own motion, the Senate can ratify a treaty obliging the government to provide HC. Ergo, as an integral part of the ratification process, Congress should have power to pass laws designed to conform our laws to the treaty.

RvC held that the BoR is an absolute limit on the treaty power. While there are still no limitations on the SCOPE of treaties, the BoR imposes limits on its content. This is the actual holding of RvC: you can't try military dependents via courts-martial, as civilians are entitled to the protections of the BoR. The larger question isn't entirely clear, and under international law, a reservation incompatible with the intent and purpose of the treaty is both void and severable. Hence. we always do an RvC reservation (we do not agree to any provision that is incompatible with COTUS), and have refused to ratify the Vienna Convention (containing the rules on reservations).

Treaty safeguards are much broader than statutory ones. First off, you have to find other sovereigns willing to agree to the treaty you want. Second, you need a 3/4 majority of the Senate to ratify it, so it won't be enacted without broad support. And as you have noted, it can be busted by an incompatible statute, or even a Presidential notice of withdrawal (see e.g., START).

Remember, COTUS contains almost no positive law. lt is, as Justice lredell explained, the "great power of attorney." lt authorizes our agents to act, and places limitations on their freedom to act. To say that a statute is "inferior" to COTUS is thus a misnomer, although we indulge freely in this shorthand. What we ARE saying, in terms of agency law, is what Hamilton said in Fed #85:

"There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."

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LawDog
on September 15, 2017 at 02:04:57 am

Your technically correct answer is wrong. The limitations on the scope of the Art. II treaty power are the entire Constitution, of which Art. II is a part, and which it cannot exceed, by the law of agency.

It takes 2/3 of the Senate to ratify a treaty, not 3/4.

A treaty may not require Congress, or any part of the national government, to exercise powers not delegated to it. So no healthcare treaties. A treaty has only the supremacy status of an act of Congress, and is limited to the delegated powers of Congress. Otherwise an act of Congress couldn't override one.

In other words, a treaty can confer no new powers. It can't override the lack of power. Reid v. Covert happened to pick one provision of the Constitution, one of the Bill of Rights, but the same reasoning extends to the entire Constitution. It is not limited to the Bill of Rights, even if only the Bill of Rights is mentioned.

That also means a treaty cannot require action by the states that Congress may not require of them by a statute.

So the entire Constitution is a reservation on any treaty. It doesn't have to be specifically stated.

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Jon Roland
on December 22, 2017 at 02:47:13 am

Out of curiosity--what is your rationale for considering Roe and Obergefell to be originalist decisions?

Also, do you believe that there should be a constitutional right to engage in incest and polygamy as well?

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Sam

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