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Our Living (That Is, Amendable) Constitution

Proponents of “living constitutionalism” or other non-originalist theories of constitutional law sometimes argue that our now 230-year-old Constitution wasn’t designed for current social conditions. Prevailing attitudes on a variety of subjects have changed dramatically since 1787, critics of originalism say. Judges must be allowed to augment or update the Constitution to keep it “relevant.”

But the Framers themselves anticipated the need for periodic revision of our national charter, providing, in Article V, a mechanism for its amendment. That mechanism has been invoked 27 times, so far.

In other words, the Constitution is a living document even without fanciful judicial lawmaking. It can, with a sufficient consensus (a two-step process culminating with ratification by three-quarters of the states), be altered to suit the requirements of an evolving polity. Some of the constitutional amendments now seem so elemental that we cannot imagine the document without them, such as the Bill of Rights, the abolition of slavery, full suffrage, and equality before the law for all citizens. Others—such as the federal income tax and direct election of senators—have altered the national government in ways that are subtle but profound. Some, such as the ill-fated experiment with Prohibition, seem foolish in hindsight.

Alas, humans are capable of all kinds of foolishness. The amendment process in Article V was intended to be onerous so that hasty and ill-considered changes could be weeded out. A host of amendments have been proposed but never ratified. Most have failed at the first step of the process, never securing the necessary two-thirds approval of both houses of Congress. For the most part, the list of stillborn proposals, numbering in the thousands, reads like an inventory of history’s bad ideas. Not every trendy idea produces political consensus, and thank goodness for that.

Unlike the impulse of an activist judge, urged on by a cadre of Progressive law professors, a proposal to amend the Constitution must earn substantial—indeed, super-majority—political support, sometimes requiring years of sustained effort and extended deliberation. Fleeting fads aren’t likely to make the grade.

Only six proposed amendments have completed the first step in the process, approval by Congress, only to fail to achieve ratification by a requisite number of states. Of these the most famous may be the Equal Rights Amendment, which stated in pertinent part that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The goal of the ERA was to put “sex” on the same footing as “race” for purposes of constitutional analysis, requiring courts to exercise “strict scrutiny” of laws drawing a distinction between the sexes. The Supreme Court had declined to require a “compelling state interest” for laws that discriminated on the basis of sex, unlike race-based classifications.[1]

Ruth Bader Ginsburg, who was a prominent ERA advocate as cofounder of the Women’s Rights Project at the American Civil Liberties Union, acknowledged that the Fourteenth Amendment was not intended to deal with sex discrimination.[2] Justice Lewis Powell’s opinion in Regents of the University of California v. Bakke[3] summed up the state of the law: “The Court has never viewed [gender-based] classification as inherently suspect or as comparable to racial or ethnic classifications.”

The ERA, which was first introduced in Congress in 1923 and approved in 1972, would have changed that. The ERA enjoyed bipartisan support, including the backing of Presidents Gerald Ford and Jimmy Carter. By 1977, it had been ratified by 35 of the required 38 states. Riding the wave of the feminist (or, as it was then called, “women’s liberation”) movement, the ERA was widely expected to pass. It was endorsed by nearly every major daily newspaper, the AFL-CIO, the American Bar Association, and the League of Women Voters. The “establishment,” in other words, strongly favored ratification of the ERA, much as the legal professoriate now overwhelmingly supports same-sex marriage and protection of LGBT rights.

Yet the ERA ultimately failed, despite the backers’ obtaining a controversial extension of the initial ratification period as support for ratification began to wane. What happened?

Once thought to be unstoppable, the ERA faced well-organized political resistance. Grassroots opposition to the amendment brought the pro-ratification momentum to a halt in 1977, and even induced some states that had previously ratified to rescind their ratifications. No state ratified after 1977. What had once seemed like a compelling idea petered out as the three-year extension of the deadline, to 1982, came and went.

Led by Phyllis Schlafly, a prolific author, conservative activist, and mother of six hailing from St. Louis, Missouri, opponents of the ERA defeated it by appealing directly to its intended beneficiaries—women—and making the case that “equal rights” could be disadvantageous to them in a number of respects. Under the gender-neutral standard of the ERA, Schlafly argued, women would be subject to the military draft, combat assignments, less favorable treatment under laws dealing with divorce and child custody, and even the possible elimination of sexually segregated facilities such as public restrooms. Although Schlafly was accused of alarmism, her claim that equating “sex” with “race” for constitutional purposes could lead to unisex bathrooms and gay rights foreshadowed later developments under Title IX and Title VII.

If anything, the proponents of the ERA unjustifiably dismissed the potential for future judicial mischief.  For example, Ginsburg, who as a law professor at Columbia University testified in favor of the amendment, denied in scholarly publications that it would authorize “homosexual marriage.”[4] In support of this conclusion, Ginsburg cited “explicit” legislative history and judicial decisions holding that “marriage is founded on unique physical characteristics of man and woman”––a contention that a majority of the Supreme Court would reject 36 years later in Obergefell v. Hodges, even without the ERA (a majority in which she joined).

What is the moral of this story? In the past, Americans have democratically adopted constitutional amendments embracing new rights, eradicating injustices, and implementing technical corrections to problems not anticipated by the Framers. Activist judges are not needed to “save” us from an antiquated Constitution.

At the same time, the national polity has declined to rally around causes that lacked a sufficient depth and breadth of political support. If the Constitution requires revision, the appropriate mechanism is amendment, not ad hoc judicial tinkering based on prevailing—but often transitory—intellectual fashions.  Ratification by 38 states, which demonstrates nationwide consensus, is difficult to achieve. That is how a republic (“if you can keep it,” Benjamin Franklin famously warned) is supposed to work. All the theoretical arguments for non-originalist constitutional decisionmaking ignore Article V.

We have a living Constitution, and 27 amendments to prove it.

[1] See Reed v. Reed, 404 U.S. 71 (1971); Frontiero v. Richardson, 411 U.S. 677 (1973).

[2] Ginsburg, “Ratification of the Equal Rights Amendment: A Question of Time,” Texas Law Review 57 (1979), 919, 936.

[3] 438 U.S. 265, 303 (1978).

[4] Ginsburg, “Ratification of the Equal Rights Amendment,” p. 937 and footnote 111.

Reader Discussion

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on September 11, 2017 at 10:03:36 am

Well, there could be an amendment changing the ("too cumbersome") process of amendment.

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R Richard Schweitzer
on September 11, 2017 at 10:07:23 am

Where I part company on the use of "Living:"

It is not that the document is "living;" it is that the living can create or recreate BY DEFINED MEANS their own Constitution.

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Image of R Richard Schweitzer
R Richard Schweitzer
on September 11, 2017 at 10:14:41 am

Well said, Mark. One common response to your argument is that several provisions of the Constitution are purportedly written in such broad and vague terms that they must have been an invitation to judges who want to liven up the Constitution even more than Article V does. Certainly many judges would be happy to find what David Currie called "the judicial holy grail,'' i.e. "a clause that lets us strike down any law we do not like". I have carefully studied some of the clauses that are often touted as candidates for that holy grail, especially the Due Process Clause, the Ninth Amendment, the Comity Clause, the Fourth Amendment, and the Equal Protection Clause. I have found them all to have an original meaning much more precise than judicial activists would like. The only one I'm still significantly unsure about is the Privileges or Immunities Clause. I am still investigating that one, but even if it does have a broad and ambiguous original meaning that judges would like to exploit, we would still have the question whether the judicial power really includes power to strike down statutes when there is reasonable doubt about the meaning of the pertinent constitutional provision. John McGinnis argued persuasively in the negative, citing the "Duty of Clarity".

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Andrew Hyman
on September 11, 2017 at 10:44:02 am

Unfortunately, the real issue of our time is that our legislative processes have created an EXTRA CONSTITUTIONAL form of governance ( the Federal Administrative State) which is now the dominant embodiment of authority interacting with the electorate; the authenticity of which embodiment is NOT derived from, nor expressly identified with, the terms of the Constitution. Yet, the judiciary "interprets" that authenticity as if it were so derived, and constructs identifications (such as "dignity" and "penumbrae") with the Constitution.

We may be (probably are) witnessing the beginnings of broader electorate disbelief in the authenticity of that (FAS) embodiment of authority. But, whether that degree of disbelief (or doubt) will give rise to actions that will return the electorate to THE constitutional format is by no means certain. The trends in the oncoming composition of the electorate do not make that outcome seem likely.

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R Richard Schweitzer
on September 11, 2017 at 10:44:54 am

I think Kurt Lash does a reasonable job of striking the P&I clause from the list of viable "judicial holy grails."

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gabe
on September 11, 2017 at 11:44:35 am

Mark:

Obviously, you are missing something here.

"At the same time, the national polity has declined to rally around causes that lacked a sufficient depth and breadth of political support."

WHO needs broad political support (consent) when we have a coterie of experts to "nudge" us and the Constitution where it SHOULD have always been anyway, at least according to the views of our moral and intellectual betters (or *bettors*, perhaps who have shown an ability and willingness to wager that theirs is the proper prescription).

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gabe
on September 11, 2017 at 13:09:45 pm

Concur. COTUS is a contract, containing a provision for orderly modification.

What the ERA debacle highlights with clarity is the fact that the mechanism by which it is modified is spectacularly inequitable. lf you count by population, over 80% of the people ratified the ERA. Why should a ranch hand in Enid, OK have ten times the voice of a software developer in Cupertino in how we change that document?

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LawDog
on September 11, 2017 at 13:20:53 pm

AH: " I have carefully studied some of the clauses that are often touted as candidates for that holy grail, especially ... the Ninth Amendment, ... [and]have found them all to have an original meaning much more precise than judicial activists would like."

Robert Bork's protestations notwithstanding, the Ninth is remarkably precise. In introducing his original draft of our Bill of Rights to the House of Representatives, James Madison explained that he consciously avoided attempting to enumerate all the rights retained by the people, arguing that

"….by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

1 Annals of Congress 456 (1789) (remarks of Rep. Madison).

The clause Rep. Madison refers to reads as follows:

"The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”

Id. at 452.

This is the Rosetta Stone for interpretation of our modern-day Ninth and Tenth Amendments. While the Ninth doesn’t create rights, it is a constitutionally mandated canon of construction, prohibiting judges from interpreting the Constitution in any manner that would "deny or disparage [unenumerated rights] retained by the people," U.S. Const, amend. IX, and the Tenth is an express reservation of powers to "the States respectively, or to the people." Id. amend. X. As such, government can only infringe upon those rights that were willingly relinquished by the people, and only when needed in order to discharge its legitimate duties as our authorized agents.

Take abortion. The 5/14Am only protects the rights of "persons," a term which did not encompass fetal life when written. Ergo, the State has no colorable authority to ban it. l can get to everything most of you seem to hate--SSM, government-funded health care, the Administrative State--from a straightforward originalist foundation. Zero activism required.

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LawDog
on September 11, 2017 at 13:27:38 pm

The Framers understood agency law. Justice lredell described COTUS as "the great power of attorney."

The notion that Congress can delegate its powers to subordinate bodies is as old as the Republic itself. Congress didn't micro-manage the Army in 1790. Congress has delegated court rule-making authority to SCOTUS, 28 U.S.C. § 2071, but retains the right to intervene as necessary. This is NOT a big thing. What you decry as the Administrative State is nothing more than Agency 101 at work.

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LawDog
on September 11, 2017 at 13:32:15 pm

There is no "judicial holy grail," unless you count Article lll itself. The courts invented SDP out of an addiction to incrementalism.

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LawDog
on September 11, 2017 at 13:37:43 pm

LawDog, the "5/14Am" do not protect animals. So by your weird reasoning. laws against cruelty to animals are unconstitutional.

This is kind of twisting is typical of judicial activists, and I would be happy for the other branches of government to simply ignore judges like that. We have somehow got the idea in this country that the judicial branch is the only branch competent to decide how to most faithfully follow the law, when in reality a basic purpose of the separation of powers is to prevent any one branch from infringing upon the functions of another.

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Andrew
on September 11, 2017 at 15:34:46 pm

l feel like the guy in the Farmers' ad. :)

"The U.S. Supreme Court on Tuesday overturned a federal law that criminalized videos showing the torture and killing of animals after deciding that it violated First Amendment free speech rights.

The case, U.S. v. Stevens, arose from a law aimed at so-called "crush videos," which are fetish films in which women torture or kill small animals by stepping on them in high heels or with their bare feet. But in the case before the court, Robert Stevens was convicted not for crush videos but for videos depicting dogfighting.

Chief Justice John J. Roberts Jr., writing for an 8-1 majority, said that the law created a "criminal prohibition of alarming breadth." The court found that the law could easily include all depictions of killing animals, such as hunting magazines, programs, videos, and web sites.

Notably, the court rejected the federal government's argument that depictions of animal cruelty should be an entire category of speech unprotected by the First Amendment because the value of the speech does not outweigh its cost to society. Instead, the justices said that the First Amendment covered more than just "categories of speech that survive an ad hoc balancing of relative social costs and benefits."

"The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it," the court added.

The government's claim that it would only use the law to prosecute cases of "extreme cruelty" was also rejected by the court, which said it "would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."

The only dissenting justice was Samuel A. Alito, Jr., who said he did not believe that the record showed that the law would ban a "substantial quantity of protected speech."

https://www.rcfp.org/browse-media-law-resources/news/high-court-declares-animal-cruelty-law-unconstitutional

[smh] Go figure.

Dog-fighting is commerce. Sorry, Michael Vick....

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LawDog
on September 11, 2017 at 15:47:53 pm

As SCOTUS said, "The acts depicted in crush videos are typically prohibited by the animal cruelty laws enacted by all 50 States and the District of Columbia." It's utterly absurd to suggest those laws violate the 5th and 14th Amendments.

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Andrew
on September 11, 2017 at 16:17:58 pm

Take out the 14th,16th and 17th Amendments plus any legislation based on the Commerce Clause and the General Welfare Clause and you,more or less,have a Republic. Keep those Amendments and clauses in place then you have a Mobocracy ruled by an elite. Basically a feudal system with a different vocabulary that elects a king every 4 years. Either or.

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libertarian jerry
on September 11, 2017 at 17:21:27 pm

No argument from me, Dawg!

Article III as the "Holy Grail" - luvv'd it! But shall it be Willie Boy Douglas or Tony Kennedy as Arthur? I'll let you choose.

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gabe
on September 11, 2017 at 17:24:38 pm

Dawg:

Yes, delegation has been a part of American guvmnt since the founding; however, would you not concede that the scope and extent of that delegation is what is at issue here. As you yourself have commented, SCOTUS apparently let's the Agencies write, interpret, and make juridicial determinations on the *rightness* of said execrcise of delegation.

A bit much, wouldn't you say!!!!

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gabe
on September 11, 2017 at 17:29:34 pm

Perhaps someone should tell the California Legislature about SCOTUS opinion re: 1st Amendment. They apparently have not heard as they now have made it illegal to publish the "accurate" ages of Hollywood *Bimbos*:

https://hotair.com/archives/2017/09/11/california-private-website-stop-posting-factual-information-hollywood-ageist/

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gabe
on September 11, 2017 at 17:57:49 pm

A: "As SCOTUS said, “The acts depicted in crush videos are typically prohibited by the animal cruelty laws enacted by all 50 States and the District of Columbia.” It’s utterly absurd to suggest those laws violate the 5th and 14th Amendments."

You're right. l suppose l should be less flippant.

Though my cat might respectfully disagree, animals are property; the 5/14Am don't apply to them. You can kill your pet pig. You can BBQ him. You can even sacrifice him to Ba'al. Different category; different analysis.

A: "This is kind of twisting is typical of judicial activists,"

So, how do YOU "untwist" it? The fundamental conceptual question is whether the State has any legitimate interest in whether a particular woman carries a particular pregnancy to term and if so, and where you could find a warrant to regulate. As it was not a violation at common law to terminate a pregnancy before "quickening" (the essential holding of Roe), abortion would not be malum in se and thus, reached by the traditional police power. And as Professor Reynolds notes, “the performance of an abortion in a local clinic is commerce among the states only if you adopt an unjustifiably expansive reading of the Commerce Clause that supports near-unlimited government power.” See e.g., Wickard v. Filburn, 317 U.S. 111 (1942).

There is literally no way to get where you want to go.

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LawDog
on September 11, 2017 at 18:30:10 pm

The essential holding of Roe had nothing to do with quickening. It had to do with viability, and many premature infants in 2017 would not have been viable in the 20th century and therefore could legally be killed for the convenience of a mother who deliberately risked pregnancy. It's bad enough that we have a dictatorial Supreme Court majority, but we are also stuck with a barbaric one, completely lacking in self-awareness of the fact.

"The fundamental conceptual question is whether the State has any legitimate interest in whether a particular woman carries a particular pregnancy to term and if so, and where you could find a warrant to regulate." That allegedly fundamental question is not written or implied anywhere in the Constitution, but rather has been inferred by people who blithely disenfranchise millions of people because the Court thinks it knows best. In my view, the warrant for regulation in this area resides in the Tenth Amendment, notwithstanding efforts to reduce that Amendment to a nullify, and there is literally no way to credibly suggest that English common law of the eighteenth century is nowadays unalterable by any and all courts and legislatures in this country, outside the context of the Seventh Amendment.

Moreover, it is currently illegal to deliberately kill endangered species, regardless of whether they are property or not. Even in the Confederate states, there were laws against deliberately killing slaves, regardless of whether they were considered property or not. Status as property does not preclude laws against killing, and any just society would not consider birth (or ability to be born) as a dividing line between a human being being property and not being property.

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Andrew
on September 11, 2017 at 22:31:26 pm

A: "“The fundamental conceptual question is whether the State has any legitimate interest in whether a particular woman carries a particular pregnancy to term and if so, and where you could find a warrant to regulate.” That allegedly fundamental question is not written or implied anywhere in the Constitution,

"A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated ... we must never forget that it is a constitution we are expounding." McCullouch v. MD, 17 U.S. 316, 407 (1819). Obviously, you wouldn't expect to find it raised directly in the text. But is it reasonably implied? To answer this question requires a return to first principles.

The Lockean bargain underlying COTUS was expressed with clarity in the NH 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." N.H. Const. art. 3. See, Michael McConnell, Natural Rights, Enumerated Rights, and the Ninth Amendment, The Sumner Canary Lecture (Case West. U., Oct. 28, 2008) (lecture, at ~35 min.). The intent of the Framers, as was evidenced by the legislative history of the Ninth, is that the people only surrendered those rights that they had to--at both the federal and state levels, as indicated by the NH Const. passage above--in order for government to function. lf government didn't need to invade a right to discharge its assigned duties, it had no authority to invade it. This is what Professor Barnett calls "the presumption of liberty." As the Ninth is a mandatory canon of construction equating enumerated and unenumerated rights, the fact that a right was never mentioned did not imply that it was ceded to the government; Madison expressly explained that that was precisely what he had in mind.

The generic question ("Does the government need to invade this right in order to discharge its duty?") translates into "Does the government need to interfere in a particular woman's decision to terminate a particular pregnancy?" As an unabashed Barnett disciple, l don't have to strain to ask it, but as long-dead Progressive wag Upton Sinclair often quipped, "It is difficult to get a man to understand something, when his salary depends upon his not understanding it!" lf you aren't looking, it is little wonder that you can't find it.

A: "In my view, the warrant for regulation in this area resides in the Tenth Amendment"

Your view creates its own set of problems. lf you give me an unlimited police and commerce power, l can take away every right you have. You need a countervailing limiting principle, and by definition, it can't be "majority rules!"

A: "The essential holding of Roe had nothing to do with quickening. It had to do with viability, and many premature infants in 2017 would not have been viable in the 20th century and therefore could legally be killed for the convenience of a mother who deliberately risked pregnancy"

First and foremost, Roe was a poorly-crafted opinion, written by judges who feared the ramifications of extending Griswold. They got to the constitutionally correct answer by the back door.

Second, your viability/quickening dichotomy is a distinction without a difference.

Can l grab your teenage daughter off the street and forcibly impregnate her with my "snowflake baby"? lf your answer is no--and it really should be--you cannot credibly say that every zygote has an absolute right to life. Ergo, it becomes a balancing of interests ... and for good or ill, COTUS has already established the balance. lf you can't countenance that, get together with your friends and amend COTUS.

A: "inferred by people who blithely disenfranchise millions of people because the Court thinks it knows best."

Do you seriously wish to suggest that every one of our individual rights must be subjected to a plebiscite? The whole point of the BoR was to insulate natural rights from the ill-tempers of the mob. The Court's JOB is to protect the individual.

A: "there is literally no way to credibly suggest that English common law of the eighteenth century is nowadays unalterable by any and all courts and legislatures in this country, outside the context of the Seventh Amendment."

The 7Am was interred by the courts already.

Certain offenses are malum in se and as such, within the reach of the traditional common-law police power. Others are malum prohibitum, and can only be outlawed if the jurisdiction has the power to do so.

A: "Moreover, it is currently illegal to deliberately kill endangered species, regardless of whether they are property or not."

A valid use of the police power. Your point?

A: " Even in the Confederate states, there were laws against deliberately killing slaves, regardless of whether they were considered property or not."

They did have a hard time squaring that circle, didn't they?

A: "Status as property does not preclude laws against killing, and any just society would not consider birth (or ability to be born) as a dividing line between a human being being property and not being property."

Based upon YOUR provincial concept of "justice," of course. One could certainly argue that it is unjust for a woman to be forced to bear her rapist's child, and that she should not be forced to bear a child due to failure of contraceptives. Throughout the Western world, 93% of women faced with a Down pregnancy choose to abort.

Law does not concern itself with justice, as no one can authoritatively define it.

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LawDog
on September 11, 2017 at 22:34:41 pm

One can debate the propriety of Chevron deference (l tend to be in the Gorsuch camp here), but the fact remains that Congress knows and has the power to pull the plug on any agency it chooses.

Personally, l would rather have knowledgeable lRS tax pros draw up legislative regs than Congress. At least, they know what they are doing.

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LawDog
on September 11, 2017 at 22:37:56 pm

The axe murderer is Judge John DEACON Bates (that is his real name) of the DC District, which l call the Bates Motel. :)

CJ John G. Roberts, Jr. can play a serial killer; he looks and plays the part.

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LawDog
on September 11, 2017 at 23:11:32 pm

Agency 101:

An agent's power is derivative and can not exceed that of the principal.

The powers available to such an agent for delegation can not exceed the powers of that agent.

The powers established in the Federal Administrative State are outside the bounds of the constitutionally established powers of the legislators and hence EXTRA CONSTITUTIONAL.

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R Richard Schweitzer
on September 12, 2017 at 01:10:45 am

L: “Obviously, you wouldn’t expect to find it [i.e. the notion that the fundamental conceptual question is whether the State has any legitimate interest in whether a particular woman carries a particular pregnancy to term and if so, and where you could find a warrant to regulate] raised directly in the text.”

On the contrary, that particular notion is a special case of the expansive general notion that where fundamental rights are involved, state and federal “legislative enactments must be narrowly drawn to express only the legitimate state interests at stake” (see Roe v. Wade). That general notion applies very broadly to all fundamental rights, thus designating an important object of precisely the kind that one would expect to see outlined in the text of a written Constitution, not inferred from vague penumbras of the Ninth Amendment combined with the Fourteenth, neither of which remotely says anything about what the assigned duties of the state governments are. Prior to addition of the Bill of Rights, the Constitution delegated certain powers to the federal government, and Madison said “the constitution is a bill of powers, the great residuum being the rights of the people.” He did not want the enumeration of rights in the Bill of Rights to detract from that “great residuum,” and there is no evidence that the Ninth Amendment did more than preserve that “great residuum.” As Randy Barnett has said, “The purpose of the Ninth Amendment was to ensure that all individual natural rights had the same stature and force after some of them were enumerated as they had before.” The purpose of the Ninth was not to create or guarantee enforcement of any unenumerated rights that were not already enforceable under the original (unamended) federal Constitution. The New Hampshire Constitution does not seem helpful to figuring out what those rights are, and certainly does not suggest that it is the business of government to protect the most powerful while ensuring that the weakest and most vulnerable die.

L: “If you give me an unlimited police and commerce power, I can take away every right you have. You need a countervailing limiting principle, and by definition, it can’t be ‘majority rules!’”

There are plenty of limiting principles, including whatever limiting principles the people of each state insert into their state constitutions, and whatever limiting principles the people of the United States insert into the federal Constitution. One such principle could be that unaccountable judges are entitled to an absolute veto over all statutes, both old ones and new ones. But the people have never been so foolish to insert such power into a state or federal constitution as far as I know.

L: “[Y]our viability/quickening dichotomy is a distinction without a difference.”

It is known to science that fetal motion begins when an embryo becomes a fetus, at about seven or eight weeks after fertilization (i.e. conception). At the time Roe v. Wade was decided, viability was at about 28 weeks. That is a difference of about 20 weeks (i.e. five months), and that is an immense difference, in terms of fetal development, in terms of public opinion, and in many other ways. To dismiss the difference between a human at seven weeks versus a human at 28 weeks is to ignore the most basic facts.

L: “Can I grab your teenage daughter off the street and forcibly impregnate her with my ‘snowflake baby’? If your answer is no–and it really should be–you cannot credibly say that every zygote has an absolute right to life. Ergo, it becomes a balancing of interests … and for good or ill, COTUS has already established the balance. If you can’t countenance that, get together with your friends and amend COTUS.”

Actually, I am probably the snowflake here, not you, since I am the one deeply sympathizing with the primary victim here. I never opined here about how rape should be dealt with, and I specifically referred already to “a mother who deliberately risked pregnancy,” but I will additionally note that rape accounts for only a very tiny fraction of abortions. I also deny that every zygote has an absolute right to life, and have never said otherwise. The making of public policy often involves a balancing of interests, and COTUS does not give SCOTUS power to balance those interests in every instance, the New Hampshire Constitution notwithstanding. SCOTUS is not free to do whatever it wants as long as the Constitution does not specifically address the facts of each case. Some important matters are up to legislators if sufficient consensus has not yet resulted in a pertinent constitutional provision.

L: “Do you seriously wish to suggest that every one of our individual rights must be subjected to a plebiscite? The whole point of the BoR was to insulate natural rights from the ill-tempers of the mob. The Court’s JOB is to protect the individual.”

The Bill of Rights itself was approved by something akin to a plebescite. It did not remotely include a right to abortion thru 28 weeks of pregnancy, so go get that approved by plebescite if you want it to be in the Constitution.

L: “Certain offenses are malum in se and as such, within the reach of the traditional common-law police power. Others are malum prohibitum, and can only be outlawed if the jurisdiction has the power to do so.”
There you go again designating an important object of precisely the kind that one would expect to see outlined in the text of a written Constitution.

A: “One could certainly argue that it is unjust for a woman to be forced to bear her rapist’s child, and that she should not be forced to bear a child due to failure of contraceptives.”

You like to bring up rape, don’t you? I already specifically referred already to “a mother who deliberately risked pregnancy.” Rape is not a factor in the vast majority of abortions.

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Andrew
on September 12, 2017 at 01:15:48 am

That last "A:" should be "L:"

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Andrew
on September 12, 2017 at 08:31:11 am

L: “Do you seriously wish to suggest that every one of our individual rights must be subjected to a plebiscite? The whole point of the BoR was to insulate natural rights from the ill-tempers of the mob. The Court’s JOB is to protect the individual.”

A: "The Bill of Rights itself was approved by something akin to a plebescite. It did not remotely include a right to abortion thru 28 weeks of pregnancy, so go get that approved by plebescite if you want it to be in the Constitution."
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This tells me that you really don't understand COTUS, and ignored everything James Madison had to say with respect to the 9/10Am. Specifically, you seem to be laboring under the assumption that rights are bestowed by the government. Unless and until this misapprehension is addressed squarely, l might as well be talking to the wall.

You may have heard the tale of William Penn, the Quaker who later established the colony of Pennsylvania. He was arrested for holding a religious observance outside of his meeting hall, after he and his congregation had been barred entry by the Crown. He had what might seem to us today to be a peculiar quirk: He refused—as a matter of religious belief—to remove his hat in deference to authority. Thus, he refused to wear his own hat to the ensuing trial, so that he wouldn’t be placed in the position of having to not remove it when the judge entered the courtroom. Angered, the judge had the bailiff place a hat on Penn’s head, which he refused to remove; he was then fined forty marks, ostensibly for insulting the dignity of the Court. The People’s {Ancient and Just} Liberties Assrted in the Tryal of William Penn and William Mead (Sept. 1670). Penn’s trial was so infamous that it was common currency to every member of the First Congress, McConnell, supra, and even the suggestion that a Bill of Rights would not have protected his progeny surely would have been anathema to those who enacted it. See, 1 Annals at 759-61.

In a land where “all men are created equal,” The Declaration of Independence, para. 2 (U.S. 1776), the right not to genuflect to a superior authority is necessarily implicit, irrespective of whether that refusal was borne of religious conviction. As such, Penn’s was not a “religious” right protected by the First Amendment. But it would seem, on its face, to be so trivial a matter that it could easily be found to be “non-fundamental.” And therein lies the rub.

Do l have a right not to genuflect to authority? Under the rule you propose here and in your own words, the answer is no, as the Bill of Rights did not remotely include a right [not to genuflect to authority], so go get that approved by plebescite if you want it to be in the Constitution."

You don't believe in "rights." You believe in liberties, recognized only when the permission of society has been formally and expressly granted.

At the risk of repeating myself, James Madison would have found your view appalling. In introducing his draft of our Bill of Rights to the House of Representatives, he explained that he consciously avoided attempting to enumerate all the rights retained by the people, arguing that

….by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

1 Annals at 456 (remarks of Rep. Madison).

Under COTUS, enumerated and unenumerated rights enjoy the same level of legal protection. You either understand this, or you don't.

The federal "Bill of Rights" is a misnomer. lt is not a declaration of rights in the vein of George Mason's draft but rather, a series of limitations upon the freedom of government to act in the discharge of its duties: "THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added." BoR, Preamble.

Much as l retain the right not to genuflect to authority, little Suzie down the street retains her right to abort a fetus, unless and until it is taken away. COTUS locuta est, causa finita est.

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LawDog
on September 12, 2017 at 10:05:03 am

[2 of 3] A: "You like to bring up rape, don’t you?"

l bring it up because it utterly disembowels your argument. Once you abandon the position that rape babies and snowflake babies are deserving of the same legal protection as those conceived because a condom broke, you have no principled argument left.
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L: “If you give me an unlimited police and commerce power, I can take away every right you have. You need a countervailing limiting principle, and by definition, it can’t be ‘majority rules!’”

A: There are plenty of limiting principles, including whatever limiting principles the people of each state insert into their state constitutions, and whatever limiting principles the people of the United States insert into the federal Constitution."

lOW, "Majority Rules!" l reiterate: "YOU DON'T BELlEVE lN RlGHTS!"

lf you can pass an amendment banning abortion, that will be the law. But "rights" are retained by the people unless and until they are taken away. This is true as a matter of definition.
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A: "state and federal “legislative enactments must be narrowly drawn to express only the legitimate state interests at stake”

Exactly what legitimate interest does the State have in the question of whether a particular woman carries a particular fetus to term? We have already agreed (wrt your concessions regarding "rape/snowflake babies") that legal protections for fetal life do not extend to the "moment" of conception. Babies are not endangered as a species, and one of the nice things about it is that you can always make more. The charter of our federal government is "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, " and neither the federal or State government needs absolute power over reproductive rights to fulfill its mission. You'll forgive me here, but l just don't see one.

A: " That general notion applies very broadly to all fundamental rights,"

l know we were trained to think in these terms in law school, but how do you draw a principled distinction between fundamental and non-fundamental rights?

In its modern iteration, the Footnote Four approach to rights jurisprudence effectively relegates the Ninth Amendment to the dust-bin of history—invoking the ethereal concept of substantive due process to specially protect only rights which judges deem as being “deeply rooted in this Nation's history and tradition,” e.g., Moore v. East Cleveland, 431 U.S. 494, 503 (plurality opinion), or somehow "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937). Courts require a "careful description" of the asserted “fundamental” liberty interest, Reno v. Flores, 507 U.S. 292, 302 (1993)—an engraved invitation to an orgy of judicial discretion. In turn, it has the noxious effect of elevating some rights to the exalted status of ‘fundamental’ while disparaging and denying others, thereby doing violence to the plain meaning of the Ninth Amendment. Barnett, Lost Constitution at 254. It creates no principled rule of decision, as the outcome of any given dispute is more a function of the judge’s personal predilections than anything else. It describes the law as it is, but not why it is as it should be.
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A: " thus designating an important object of precisely the kind that one would expect to see outlined in the text of a written Constitution, not inferred from vague penumbras of the Ninth Amendment combined with the Fourteenth, neither of which remotely says anything about what the assigned duties of the state governments are."

You DO understand why Madison opposed a BoR, don't you? lf he listed 500 rights, someone else could come up wih 500 more. You are cherry-picking Madison's statements, blithely ignoring his explanation of the 9Am because it is in irreconcilable conflict with your immaculate misconceptions.

Under the Framers' original design (no longer operative on account of the CWA), what happened between the States and their citizens were between them. Barron v. Baltimore. A State could even have an official religion supported by tax dollars, if it so chose. But when certain States demonstrated that they could not be trusted to respect the rights of all of their citizens, that calculus was changed.

A: "As Randy Barnett has said, “The purpose of the Ninth Amendment was to ensure that all individual natural rights had the same stature and force after some of them were enumerated as they had before.” The purpose of the Ninth was not to create or guarantee enforcement of any unenumerated rights that were not already enforceable under the original (unamended) federal Constitution. "

And your point is? Both the right to abort a fetus prior to quickening and to not have to remove one's hat in deference to authority appear to be part of the "great Residuum." The 9Am does not create rights; all it does is equate enumerated and unenumerated rights. lt is a canon of construction, directed at the judiciary.

A: " The New Hampshire Constitution does not seem helpful to figuring out what those rights are, and certainly does not suggest that it is the business of government to protect the most powerful while ensuring that the weakest and most vulnerable die."

The NH Constitution excerpt is central to our understanding of the Framers' design, but when you don't want to understand, you won't.

As for the business of government, it exists solely to protect rights retained by the people. Your whine here is a vintage Cabernet, and l can break out the violin if you desire, but as you have conceded, legal protection for life does not begin at conception. lf it can find no right to preserve, Big Gub'mint can take no action to preserve it.

lt is probably apocryphal, but there is a tale of Learned Hand and Oliver Wendell Holmes having lunch. After they had finished, Holmes got into his carriage. ln a sudden fit of ardor, Hand (an early LC acolyte) ran after Holmes's carriage, saying "Do justice! Do justice." Holmes's reply: "My job is to apply the law."

At the end of the day, you're an LC guy. You want COTUS to reflect your provincial view of morality, and the fact that it doesn't doesn't seem to deter you.

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LawDog
on September 12, 2017 at 10:29:26 am

Dawg (and Andrew):

Interesting, indeed!

A question then:

We often reference the "fact(-oid) that upon entering into society, human beings voluntarily yield some of their natural liberties to the government (be it, in our case, Federal or State (important distinction here)).

So what are those liberties that we surrender?
What were those liberties that were surrendered in 1789?
How do they differ from the ones surrendered today - or do they?
WHAT liberties were surrendered to the Federales? - AND what to the State governments?

Was there a difference between the two grants of power to the States and the Federales?

Lastly, does this difference, if any (and surely there was (is) a difference) imply for State Police Powers?

Is that not one possible reading of the 10th?

In short, can I surrender more to my local government / State government than to the Federales?
Indeed, some would argue that WAS the purpose of the contract between the States, the People and the Federales.

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gabe
on September 12, 2017 at 10:34:15 am

[3 of 3] For sake of completeness:

A: "One such principle could be that unaccountable judges are entitled to an absolute veto over all statutes, both old ones and new ones. But the people have never been so foolish to insert such power into a state or federal constitution as far as I know."

That is the SCOTUStitution, as so decreed by King John l of Roberts and his ignoble Court. See e.g., Shelby County v. Holder. No one enacted it, but no one has taken steps to prevent them from enacting it in the real world.
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A: "I am probably the snowflake here, not you, since I am the one deeply sympathizing with the primary victim here."

"Ohhhhh, but dem widdle BAY-BEEEEES!" At the end of the day, yours is an unhinged emotional argument. As we have already agreed that the right to life does not vest at conception, and you have no principled basis upon which to assign it to some but not others, there is no coherent rationale behind it.

COTUS takes the position that it is none of Big Gub'mint's business. As a general rule, a woman who doesn't want to be pregnant will abort rather quickly. Late-term abortions almost always occur in tragic situations, such as the diagnosis of a catastrophic birth defect (e.g., Down's or anencephaly). As such, there appears to be no compelling and principled basis for governmental intervention.
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A: "The making of public policy often involves a balancing of interests, and COTUS does not give SCOTUS power to balance those interests in every instance,"

True, but irrelevant. COTUS protects certain rights by removing them from the influence of the majority. lt is SCOTUS's job to enforce that barrier.

A: "SCOTUS is not free to do whatever it wants as long as the Constitution does not specifically address the facts of each case."

There is no warrant in law, logic, or precedent for such a position.

A: "There you go again designating an important object of precisely the kind that one would expect to see outlined in the text of a written Constitution."

l wouldn't expect it. You're flailing.

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LawDog
on September 12, 2017 at 11:10:13 am

LawDog, believe that "legal" rights are bestowed by the government with permission of the people, but that "natural" rights are not bestowed by the government or the people. Governments including legislatures are instituted among men to convert natural rights into legal rights. You have a natural right to not remove your hat in deference to authority. You also have a legal right to keep your hat on, either because that is a liberty which no statute has attempted to take away, or because Congress has no enumerated power that plausibly covers that subject, or because keeping your hat on is a form of expression protected by positive law, or for all of those reasons. Even if those reasons did not exist, here is one more: if any American government claimed power to deprive you of such a right, the widespread public alarm would lead to a constitutional amendment practically overnight. But wearing a hat is NOT your legal right merely because judges have some dictatorial authority to determine what rights would be fundamentally fair and to therefore insist upon them despite a contrary view of fundamental fairness amongst legislators and amongst the American people. Your statement that, "You don’t believe in 'rights'" is utter nonsense. I believe that legal rights require majority support to be created, rather than minority support, which apparently sets me apart from you.

You ask, "Exactly what legitimate interest does the State have in the question of whether a particular woman carries a particular fetus to term?" The human brain undergoes no radical transformation at the moment of birth, and functions perfectly well before birth. Fundamental fairness suggests therefore that one ought not kill such a human being or allow it to be killed, in the same way that fundamental fairness suggests that I would not allow anyone to kill you. If someone tries to gas you to death, there is a governmental interest in stopping the killer rather than in protecting the killer, and the same applied five minutes before your birth.

Contrary to what you've said, I never agreed that legal protections for fetal life do not extend to the “moment” of conception. I only agreed that they should not. You also conflate the mission of the federal government (stated in the preamble) with that of the states, and in any event the preamble has quite properly been judicially construed as not binding even as to the federal government.

I also see you may be paving the way toward a judge-declared right to kill babies after birth: "Babies are not endangered as a species, and one of the nice things about it is that you can always make more." If that's what you're trying to do, I emphatically disagree with that as well. But I do agree with you that current SCOTUS doctrine creates "an engraved invitation to an orgy of judicial discretion....It creates no principled rule of decision, as the outcome of any given dispute is more a function of the judge’s personal predilections than anything else." Alas, your prescription would merely rearrange the incantations.

You say, "Both the right to abort a fetus prior to quickening and to not have to remove one’s hat in deference to authority appear to be part of the 'great Residuum.'" Quite right, except on federal territory.

You say that I, "want COTUS to reflect [my] provincial view of morality...." On the contrary, I will be entirely satisfied if COTUS reflects none of my morality, provided that statutes do so.

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Andrew
on September 12, 2017 at 11:11:42 am

"LawDog, believe" should be "LawDog, I believe"

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Andrew
on September 12, 2017 at 14:03:25 pm

A: "[l] believe that “legal” rights are bestowed by the government with permission of the people, but that “natural” rights are not bestowed by the government or the people. Governments including legislatures are instituted among men to convert natural rights into legal rights."

And l would submit that this is a MAJOR conceptual error. A natural right can never be anything but a natural right; governments can only infringe upon them. Think of Robinson Crusoe, on a desert island. He can play his boom-box as loud as he damn well pleases, even at 3:00 AM. And if we were talking about Robin Crusoe, she can pop RU-486s like M&Ms if she so desires.

ln the Lockean transaction, you surrender certain of your natural rights (what you could do if you are alone on a desert island) and assume other obligations (e.g., to pay taxes) in exchange for a portfolio of civil rights, that are best thought of as a basket of procedural remedies. You may acquire a right to health care and/or old age assistance, but you can never convert a natural right into a legal right. lt is logically impossible.
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A: "You have a natural right to not remove your hat in deference to authority. You also have a legal right to keep your hat on, either because that is a liberty which no statute has attempted to take away, or because Congress has no enumerated power that plausibly covers that subject, or because keeping your hat on is a form of expression protected by positive law, or for all of those reasons."

Not true. 28 U.S.C. § 2071. The courts could enact a rule requiring all in the courtroom to rise when a judge enters and also, that hats be removed. lf what you say is true, this would be permissible, since Congress has plenary authority to write these rules, subject only to the limitations imposed by COTUS.

A: "if any American government claimed power to deprive you of such a right, the widespread public alarm would lead to a constitutional amendment practically overnight"

SRSLY? There is a maxim in the law: de minimis non curat lex. This is so trivial that no one would bother to go through the considerable brain damage of enacting an Amendment.

A: "But wearing a hat is NOT your legal right merely because judges have some dictatorial authority to determine what rights would be fundamentally fair and to therefore insist upon them despite a contrary view of fundamental fairness amongst legislators and amongst the American people."

They don't. As much as it incenses you, all the Court is really saying is that this is one of the rights which the majority has no authority under law to infringe upon.
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A: "Your statement that, “You don’t believe in ‘rights'” is utter nonsense. I believe that legal rights require majority support to be created, rather than minority support, which apparently sets me apart from you."

l say that because you really don't have a grasp of what a "right" is. A right is something that you don't need to ask permission to exercise, and can enforce in a courtroom in the case of wrongful breach.
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A: "You ask, “Exactly what legitimate interest does the State have in the question of whether a particular woman carries a particular fetus to term?” The human brain undergoes no radical transformation at the moment of birth, and functions perfectly well before birth. Fundamental fairness suggests therefore that one ought not kill such a human being or allow it to be killed, in the same way that fundamental fairness suggests that I would not allow anyone to kill you. "

"Fundamental fairness"? You sound like Larry Tribe, arguing that DREAMers should be allowed to stay here, our immigration law notwithstanding. You are a Living Constitution guy; own it!

So, where ls the line drawn? You have already admitted that the rape baby has no right to be born. Why, in a biological sense, does a failed contraception baby have more of a right to life than the snowflake baby? Once you cross that Rubicon, there is no going back.

What is fundamentally fair to you isn't necessarily so for Suzie down the street. She might maintain that it is fundamentally UNfair for her to have to bear a Down pregnancy to term. So, why are YOU right? Why is she wrong? This is the fundamental problem with squishy standards like the one you advocate.

Justice is emotional. Law is dispassionate.
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A: "You also conflate the mission of the federal government (stated in the preamble) with that of the states"

....mostly, because they should be. lf there is a material difference between the statement from the NH Const and the first substantive page of the Dol, l can't see it.
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A: "the preamble has quite properly been judicially construed as not binding even as to the federal government."

Of course, it is not legally binding. But limitations of this nature were part and parcel of every corporate charter of the day. Whether you agree with Justice Thomas that COTUS and the Dol should be read in pari materia, or accept the Preamble as a mission statement, you get to the same place.
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A: "I also see you may be paving the way toward a judge-declared right to kill babies after birth:"

A: "If someone tries to gas you to death, there is a governmental interest in stopping the killer rather than in protecting the killer, and the same applied five minutes before your birth."

You're flailing again. See the 5/14Am. One becomes a legal "person" at birth or incorporation/formation. At that point, government has a legal duty to act. Before birth, it does not.
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A: "I do agree with you that current SCOTUS doctrine creates “an engraved invitation to an orgy of judicial discretion….It creates no principled rule of decision, as the outcome of any given dispute is more a function of the judge’s personal predilections than anything else.” Alas, your prescription would merely rearrange the incantations."

You're not paying attention. You have an explicit right to own property and not have it appropriated without fair compensation, but if the government has to destroy your bridge in a war, they need not compensate you for your loss (and neither will insurers). lf government needs to invade your rights, you are deemed in law to have consented. The test is easy enough for most judges to apply, and better than the mess we have now.

A: "You say that I, “want COTUS to reflect [my] provincial view of morality….” On the contrary, I will be entirely satisfied if COTUS reflects none of my morality, provided that statutes do so."

Or to put it in plain English, you want to force your will on others through the sledgehammer of the law. And whether you like it or not, COTUS imposes a limit on your ability to do so.

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LawDog
on September 12, 2017 at 15:26:16 pm

gabe: "So what are those liberties that we surrender?
What were those liberties that were surrendered in 1789?
How do they differ from the ones surrendered today – or do they?
WHAT liberties were surrendered to the Federales? – AND what to the State governments?

Was there a difference between the two grants of power to the States and the Federales?

Lastly, does this difference, if any (and surely there was (is) a difference) imply for State Police Powers?"

gabe, you raise GREAT foundational questions. Together, they form a serviceable test of constitutional theory: lf l can't answer you systematically and then support my position with reference to the Framers' declarations, there is probably something wrong with my theory.

First and foremost, it must be kept in mind that "we the people" remain as an ultimate sovereign, holding the jus summa imperii (all elements of sovereignty, in the broadest sense) as tenants-in-common. Govenment is our authorized agent, which is given a specific, limited, and revocable capacity to act on our behalf. The preamble of the Mass. Const. of 1780 (written by John Adams) provides:

"The end of the institution, maintenance and administration of government, is to secure the existence of the body-politic; to protect it; and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquillity, their natural rights, and the blessings of life: And whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body-politic is formed by a voluntary association of individuals: It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good."

One key point for Andrew's benefit: Note that it did not transmute "natural rights" into "legal rights." To the Framers, his self-serving formulation would have been anathema.

We see the Lockean bargain, though not quite as clearly as in the NH version. Prior to 1780, MA was governed via its Charter; thereunder, the Colony already delegated some of their authority to the Continental Congress--which wasn't much. lmportantly, Adams writes:

"IV.--The people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, which is not, or may not hereafter, be by them expressly delegated to the United States of America, in Congress assembled.

People often forget that we had a (marginally-functional) national government for over a decade. This passage states the hierarchy between the two systems: As co-sovereigns, the people delegated specific and express authority to the new nation-state of MA and in turn, this nation-state delegated some of lTS authority to the federal government--first under Constitution 1.0 (the Articles of Confederation) and then, under Constitution 2.0 (the 1789 version). Later, the States limited the scope of the national government's authority through enactment of the BoR (call it Constitution 2.1), and ceded more of their own autonomy through the CWAs (Const. 3.0). We live under Const. 3.0, as the relationship between the states and federal government have not been altered materially since 1870.

To answer your direct question, the people delegated an express and limited authority to the States through their own state constitutions; the States turned around and delegated some of THElR authority: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 10Am.

Under the original (C2.1) constitutional design, the federal government had no interest in the arrangement between a State and its citizens. For example, MA outlawed slavery, and funded public worship. And COTUS accommodated the differences, mostly under the Full Faith and Credit Clause.

What "natural rights" were surrendered by the people to the States? lt depended on the state, and was determined by the state constitutions (Rl did not adopt one until 1838). But the equation was solved by the stated purpose: "enjoying, in safety and tranquillity, their natural rights, and the blessings of life." Natural rights are retained until ceded.

gabe: "What were those liberties that were surrendered in 1789?
How do they differ from the ones surrendered today – or do they?"

They don't differ in concept, but they may in application. For instance, it has always been true that while you have the right to bar entry to your home to anyone, authorities may pursue a fleeing felon through your house. ln 1789, crime was a matter between the parties, as the first professional police force would appear nearly a century in the future. lOW, the answer would be a perfectly unsatisfying "yes" and "no." :)

As the States ceded more of their authority in the CWAs, they gave up a significant portion of their police power. But it is still formidable.

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LawDog
on September 12, 2017 at 16:54:35 pm

This is my last reply LawDog. I am not going to even attempt to deny or correct all your erroneous characterizations of what I've already said, because it would be too tedious and time-consuming. But I will clarify a few things I already said such as this: "Governments including legislatures are instituted among men to convert natural rights into legal rights.” For precision, I will amend that to say this: "Governments including legislatures are instituted among men to convert natural rights into legal rights as well." That is, natural rights remain natural rights, but can be legal rights at the same time. I do not consider it a natural right to blast music at 3AM in the middle of a residential neighborhood, though it would be a natural right on a desert island inhabited by only one person.

Also, I never said that a fetus resulting from rape has no right to be born, and I also think you know I never said that. What I said is that I don't want to dwell on those cases because they account for such a tiny percentage of abortions. In my personal opinion, a fetus resulting from rape probably has a natural right to be born if it's already become viable. It may also have such a right if it's been deliberately carried beyond the embryonic stage. A woman may also have competing rights, and society's treatment of this difficult issue may be affected by the possibility that women are sometimes dishonest about whether they've been raped. Ultimately, a workable resolution to the abortion controversy may be for such laws to be controlled only by female legislators and voters with men excluded from affecting those laws.

Lastly, you asked me above what legitimate state interest there might be in preventing pre-natal killing, and I answered by saying what I consider that interest to be. I'll just add that my answer was not meant as any sort of admission that judges have any free-floating power to strike down statutes that seem "illegitimate" given that there is no Legitimacy Clause in any constitution that I'm aware of.

Anyway, that's all I want to say here. Take the last word if you like. Please try not to be condescending. Thanks!

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Andrew
on September 12, 2017 at 19:29:00 pm

A: " For precision, I will amend that to say this: “Governments including legislatures are instituted among men to convert natural rights into legal rights as well.” That is, natural rights remain natural rights, but can be legal rights at the same time. I do not consider it a natural right to blast music at 3AM in the middle of a residential neighborhood, though it would be a natural right on a desert island inhabited by only one person."

Your thoughts here are as muddled as a $25 mojito. You have a natural right to play your boom-box as loud as you please. You haven't given it up but rather, have agreed to certain time, place, and manner restrictions on its exercise. This admittedly subtle distinction mucks up your entire theory of rights.

A: " What I said is that I don’t want to dwell on those cases because they account for such a tiny percentage of abortions."

lOW, you want to avoid knotty problems that muck up your argument. You have said that "I also deny that every zygote has an absolute right to life, and have never said otherwise," which is enough to make my point. Once you get off the boat, you can't get back on.

A: "A woman may also have competing rights, and society’s treatment of this difficult issue may be affected by the possibility that women are sometimes dishonest about whether they’ve been raped."

About one in four come forward, as it is a traumatic experience, and the legal system makes them suffer all the more. l had a friend who was molested as a child; it took her almost 50 years to come forward. lt changed her life; she thinks that it is what made her a lesbian.

lf you accept the position that a woman has competing rights in the matter, then Roe is a legislative solution worthy of Solomon. We are saying that you have an absolute right to terminate the fetus, but that you waive that right via inaction. We'll also give you an extension for good cause (e.g., Down's, anencephaly). l'm sad to see you go, because l would like to hear why you oppose the status quo ante.

The problem l have with that is "legislative." l don't want judges writing law, and if we recognized the right to abort right on up to the day of birth, we'd have essentially the same outcome we have today. lf a woman puts up with six months' worth of pregnancy, she wants the child, and only extreme circumstances would change that.

A: "I’ll just add that my answer was not meant as any sort of admission that judges have any free-floating power to strike down statutes that seem “illegitimate” given that there is no Legitimacy Clause in any constitution that I’m aware of. "

Alexander Hamilton provides one, albeit in the Federalist:

"Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

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 12, 2017 at 23:09:35 pm

Dawg:

All true, of course.

I had in mind, however, something specific in terms of the sovereign people surrendering a right and one that in fact has a history in the USA. Bigamy or polygamy.

If it is permissible for a people to surrender a right to polygamy in order to complete the "contract" - (and I don;t necessarily subscribe to the notion that people CANNOT give up "natural rights" - well - simply because we have) - and there is, IMO, no ultimately sustainable (even moral) objection to the practice above and beyond one's ability to support multiple families (never mind all the "yes, Dears" required -Ha), it would appear that a) people can give up this right / this behavior, b) that a State is within its (subsequently) designated grants of power (given by the people, and c) can not a similar argument be made for SSM (about which I don;t really give a rip) or transgender behavior?

If, as you said, in response to Andrew, if the people were to collectively authorize the State to limit such behavior - how could it not be akin to polygamy proscription? Yeah, I know the old EP clause, but....and this was my original inquiry: What limits the limits that the people themselves may place upon liberty?

Or are we now to expect that polygamy statutes will be nullified?
Ultimately what I am asking is "How SOVEREIGN are the people?" and may the people, whether motivated by a religious OR moral impulse proscribe behavior which they find distasteful / dysfunctional (whatever term one wishes to employ) and that said behavior would otherwise not impinge upon the legal rights of others? and is not specifically granted notice in COTUS?

Can a people be "moral" though Law be dispassionate?

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gabe
on September 13, 2017 at 23:17:37 pm

We seem to be assembling the usual suspects from the Volokh forum.

From the classics we get that morality is generally doing justice for interactions among n individuals for small values of n, especially, and a people who habitually do that can be said to be "moral". The challenge comes when the value of n becomes large, too large to allow for individual treatment of each of them. That is the realm of ethics and law. We adopt simple rules for such situations, hoping for statistical justice in most cases. Doing that makes ethics and the law "dispassionate".

With DACA we have a dilemma that strict "dispassionate" application of the law would have us deport persons who had been brought into this country as children and grew up here. Individually, a moral decision might be to let each stay, but a political constituency insists they be deported anyway. Where is the bound with dispassion?

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Jon Roland
on September 14, 2017 at 10:38:10 am

Jon:

1) No, I am not a "Volokhian"

2) You raise an interesting question and perhaps it is an answer to Madison's contention that a "large: Republic can flourish.

In short, "can the mediating (small civic) associations survive as a republic grows in size with the consequent growth of government and Law?"

In a sense, it may be that the "moral[s]" of which you speak in your opening sentence resided in the mediating institutions, in the citizenry's response to the *collisions* attendant upon human intercourse. In the individual instances, these institutions / associations were sufficient to to address the matter; once a sufficiently large number of such collisions occur, however, it may strain the resources, if not the patience and the wit of the associations and its members - thus LAW is formulated to address the collisions.

In so doing, perhaps, we become mere formalists rather than "moral."

And, as I was inferring in my questions to LawDog, we may very well be surrendering some of our Liberty.

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gabe
on September 14, 2017 at 11:45:46 am

"Nationwide consensus is difficult to achieve. That is how a republic is supposed to work."

No it's not. That's simply a bizarre neologism, of the same order as Adams' dodgy definition of the term. A republic is "supposed" to work in the absence of an hereditary head of state, tout court and by definition. The stability presumed in the difficulty of reaching consensus for constitutional change in general has nothing in common with a republican form of government, historically is a highly unstable creature in many actual instances given to sudden and frequent constitutional alteration, and very much in contrast with the stability common to the opposite of a republic.

What the author actually means is that he hopes the civic veneration of mos maiorum will serve as an adequate substitute for the stabilizing influence of the hereditary principle. The obvious weakness of the scheme, then and now, is that the mos maiorum may be maintained externally and "the image of a free constitution preserved with decent reverence", while "by virtue of these republican titles [our presidents] clothe themselves with all the powers of the government, so that they actually possess all the prerogatives of kings without the usual titles".

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Ken
on June 18, 2018 at 12:51:39 pm

While amendment should be more difficult than passing ordinary legislation, it also should not be impossible, which is what it is today. Of the 27 amendments, the last one to effect a major constitutional change (extending the franchise to all women) was passed almost a century ago, in 1920. Our Constitution is now the most difficult to amend in the world. Approval thresholds and procedures which may have made sense for 12 states with three million in population in an age of horse and sail are no longer working in a nation of 50 states with modern communications and a hundred times the population.

A few adjustments, such as eliminating the requirement that the states go through the archaic mechanism of a convention to initiate amendments, could re-open the process while keeping super-majoritarian approval. Among other benefits, this would remove the main justification for judicial amendment under the "living constitution" theory.

See http://www.amendmentamendment.com.

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Timely Renewed
on January 22, 2019 at 05:32:25 am

[…] or failed to anticipate some feature or another of modern life, Article V provides a mechanism for amending the document, which has been used 27 times so far.  Advocates of constitutional reform sometimes suggest a more […]

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Doubting Beto
on February 28, 2020 at 06:07:20 am

[…] Equal Rights Amendment, a topic I’ve previously discussed in the form of a retrospective on Phyllis Schlafly, is back in the news. The occasion for this […]

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The ERA Is Back?

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