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Robert Bork’s Second Amendment

Readers of Law and Liberty may have noticed that I am a fan of Justice Antonin Scalia (for example, here and here). I am also an admirer of Robert H. Bork, whom my colleague John McGinnis has described as “the most important legal scholar on the right in the last 50 years.” Bork was a pioneer in both the field of antitrust law (with his influential 1978 book The Antitrust Paradox) and constitutional law, as the father of what we now call “originalism.” In his seminal 1971 article in the Indiana Law Journal, entitled “Neutral Principles and Some First Amendment Problems,”[1] and in his later best-selling books, The Tempting of America (1990) and Slouching Towards Gomorrah (1996), Bork eviscerated the “noninterpretive” theories of constitutional law that dominated the legal academy in the 1960s and 1970s.

For his heresy, and in particular for his outspoken opposition to the judicial recognition of unenumerated rights such as the right of “sexual privacy” in Griswold v. Connecticut[2](the precursor of Roe v. Wade) Bork was shamefully denied confirmation to the U.S. Supreme Court 30 years ago today, on October 23, 1987.

The Bork hearings before the U.S. Senate Judiciary Committee were an unseemly spectacle, surely one of the most disgraceful episodes in the Senate’s history. Less than an hour after President Reagan announced his nomination of Bork, Senator Ted Kennedy (D-Mass.) made one of the most demagogic speeches ever delivered on the Senate floor, accusing Bork of favoring “back-alley abortions,” segregated lunch counters, “rogue police” conducting midnight raids, and similar scurrilous charges.

The nominee later pointed out that “Not one line of that tirade was true,” and many people on the Left knew it, but at the time the anti-Bork sentiment among liberal interest groups was so strong that the media uncritically repeated Kennedy’s (and others’) calumnies. Only upon Kennedy’s death in 2009 did journalists begin to acknowledge that his smear of Bork was entirely false. “But it worked,” as a writer for the Economist noted.

Consider that, had this worthy candidate been seated on the Court  in 1987, Anthony Kennedy would not have been nominated and would probably still be sitting in semi-obscurity on the Ninth Circuit bench. On the High Court instead of Kennedy for a quarter-century, Bork would have been aligned with its conservative bloc in most cases. Accordingly, the past 30 years of constitutional law would likely have turned out quite differently: Instead of 5 to 4 decisions protecting flag-burning, gay rights and same-sex marriage, and continuing the scourge of abortion, the opposite would have occurred.

As a justice, Bork would likely have been a more conservative (but less sarcastic) version of Scalia—less sympathetic to criminal defendants, not as deferential to administrative agencies, and with a narrower conception of the First Amendment than Scalia’s. Although no one can be certain, one case stands out as an example of an important constitutional law decision in which a conservative result might have been decided differently under Justice Bork: District of Columbia v. Heller, [3] the landmark 2008 case recognizing, for the first time, an individual right to keep and bear arms pursuant to the Second Amendment.

Heller, authored by Scalia, was a 5 to 4 decision in which Kennedy joined the conservatives (Roberts, Thomas, and Alito) instead of the liberal bloc of Stevens, Breyer, Souter, and Ginsburg. While Heller is usually praised by originalists, it was (and remains) a controversial decision.

Why do I suggest that Bork might have voted differently from Kennedy? As far as I can tell, Bork, who died in 2012, never commented publicly on Heller, but his general approach to constitutional interpretation is that courts should defer to the political branches unless the Constitution clearly puts the subject “off limits” from majoritarian rule. The Second Amendment, with its odd phraseology (“A well regulated Militia, being necessary to the security of a free State”), might have presented Bork with the same difficulty as the Ninth Amendment (which he once compared to an “ink blot”) or the Privileges or Immunities Clause of the Fourteenth Amendment, making him reluctant to read into the constitutional text rights that the Framers did not expressly put there.

This is not mere speculation. In Slouching Towards Gomorrah, Bork referred to the language of the Second Amendment as “somewhat ambiguous[].” In the same passage, he stated that “The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government.”[4] While it is clear that Bork was opposed to gun control on policy grounds, it is not clear that he agreed that the Second Amendment conferred an individual right.

In fact, Bork’s skepticism regarding the gun lobby’s advocacy of individual rights under the Second Amendment (shared by former Chief Justice Warren Burger) may have been the reason the National Rifle Association chose to remain neutral during Bork’s 1987 confirmation hearings. Moreover, Bork might have been reluctant to overrule (or distinguish into irrelevance) the arguably contrary precedent in United States v. Miller[5], which is what  the majority in Heller did. It appears that Bork construed Miller the same way Justice Stevens’ dissent in Heller did: as ruling that the Second Amendment confers a collective, not an individual, right. The way he put it in Slouching Towards Gomorrah (12 years before Heller) was: “The Supreme Court has consistently ruled that there is no individual right to own a firearm.”

None of this is conclusive, of course. Historical analysis of the Second Amendment in recent years has greatly increased our knowledge regarding its original meaning. It is possible that a Mr. Justice Bork, had he read the briefs and listened to the oral argument in Heller, would have been persuaded to join Scalia’s majority opinion—as in fact Anthony Kennedy did. Musing about an issue in a broadly focused book is not the same as reaching a decision in a concrete case. Still, Bork was a clear thinker who was stubbornly committed to principle. For decades, he decried judges’ overriding democratically enacted laws based on fanciful interpretations of vague constitutional text in their pursuit of  a  policy result they find desirable.

I’m not an expert on the Second Amendment, or the Heller decision, but it is ironic to think that liberals—by trashing the reputation of the highly honorable Robert Bork in the Judiciary Committee three decades ago—may have ensured a legal outcome they now deplore. If so, on the 30th anniversary of Bork’s defeat in the Senate, we should include the Heller decision as part of his considerable legacy.

[1] 47 Indiana Law Journal 1 (1978).

[2] 381 U.S. 479 (1965).

[3] 554 U.S. 570 (2008).

[4] Robert Bork, Slouching Towards Gomorrah (HarperCollins, 1996) p. 166.

[5] 307 U.S. 174 (1939).

Reader Discussion

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on October 23, 2017 at 09:59:17 am

It is always fascinating to hear or read of a concept of "Collective" rights.

Perhaps we could compare that concept to a concept of "Collective" liberty.

Which might cause us to consider why the Founder of Liberty Fund focused, and intended Liberty Fund (including this august location) to focus on INDIVIDUAL liberty.

The "obverse" of individual rights are the obligations of individuals within a social grouping to one another
(You let me worship mu way - I let you worship your way)

What would be the obverse of a "Collective" right? The obligations of some other collective, natural or constructed? Would it be the obligations of the members of a collective to one another? If that latter, how does that differ from individual obligations to other individuals being the sine qua non of a right?

There is reason to doubt that that there is any such thing as "collective choice." Similarly there is reason to doubt there is any such thing as a "collective right."

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R Richard Schweitzer
on October 23, 2017 at 11:30:41 am

Anyone reasonably familiar with Scalia's work on the bench knows that he has been, at best, a fair-weather originalist. See e.g., Randy Barnett, Scalia's Infidelity: A Critique of Faint-Hearted Originalism, 75 U. Cin. L. Rev. 7, 13 (2006); Cass R. Sunstein, Antonin Scalia, Living Constitutionalist, __ Harv. L. Rev. ___ (2016) (SSRN draft). But Judge Bork was so far "out there" that no one knew what he would do on the bench. Anyone who sees the Ninth as an "inkblot" is per se unfit to sit on SCOTUS, and the man who engineered the "Saturday Night Massacre" was morally unfit to sit on ANY bench.

"Bork was a clear thinker who was stubbornly committed to principle."

This wasn't the Robert Bork I remember. Bork was a right-wing Posner, who decided who he wanted to win and always worked backward from there. But truth be told, there is no such thing as an originalist judge: Judges prefer to reason from COTUS when they can, but will ignore it when they can't get from there to their desired outcome. Bork was not an originalist; he was a Burkean, who had no qualms about insinuating himself on the law.

The Bork hearings revealed the obvious: Our "judges" are political hacks.

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Trevor Chase
on October 23, 2017 at 11:31:15 am

I am a layman. Please let me know (kindly, if you would) if my interpretation is on the money or uneducated malarky. :-)

The strange wording of the Second Amendment aside, to me, it's obvious that the Founders intended Individual Liberty for all. To interpret that there is no individual right to a firearm is to interpret there is no individual liberty, no individual responsibilities, and no individual consequences. It's also obvious to me that many of the rulings over the years by the Supreme Court deviated from Original Intent. To say there is no individual right to purchase and keep a firearm is like saying the government has the power to force individuals to purchase something.....oh, wait.....uh......

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Juli
on October 23, 2017 at 11:56:32 am

You are seriously misinformed (or possibly just uninformed). In either event, your statement that
“the man who engineered the “Saturday Night Massacre” was morally unfit to sit on ANY bench” is ignorant and incorrect. Bork explained the “Saturday Night Massacre” episode at length in his posthumous memoir, “Saving Justice.” Elliot Richardson testified forcefully in favor of Bork’s confirmation before the Senate Judiciary Committee. Had Bork resigned, as Richardson and Ruckleshaus had, Archibald Cox’s investigative staff would have been dismissed. Instead, when Leon Jaworski took over, the Watergate investigation continued and eventually led to the resignation of President Nixon. Richardson’s testimony is available on YouTube. You should watch it and learn something.

The political hacks in 1987 were the deceitful charlatans Ted Kennedy and Joe Biden.

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Mark Pulliam
on October 23, 2017 at 12:57:45 pm

Given what little I know of Bork, I've read some of his writings but I'm no expert. I'm really not sure how he felt about the Incorporation doction as a general theory but my limited reading suggests that he might have been skeptical of it. Thus, I think he might have gone along w/ Heller (2A restricts federal government) but might have broken w/ Scalia on McDonald (applying the 2A to the state governments).

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David Lickiss
on October 23, 2017 at 12:59:31 pm

"[H]is seminal 1971 article in the Indiana Law Journal..."

I'm debating a rabid gun-grabber as we speak, and just happen to have the article on my desktop. This may be his most profound contribution to the debate.

"[T]he Court's power is legitimate only if it has, and can demonstrate in reasoned opinions that it has, a valid theory, derived from the Constitution, of the respective spheres of majority and minority freedom. If it does not have such a theory but merely imposes its own value choices, or worse if it pretends to have a theory but actually follows its own predilections, the Court violates the postulates of the Madisonian model that alone justifies its power. It then necessarily abets the tyranny either of the majority or of the minority.

This argument is central to the issue of legitimate authority because the Supreme Court's power to govern rests upon popular acceptance of this model. Evidence that this is, in fact, the basis of the Court's power is to be gleaned everywhere in our culture. We need not canvass here such things as high school civics texts and newspaper commentary, for the most telling evidence may be found in the U.S. Reports. The Supreme Court regularly insists- that its results, and most particularly its controversial results, do not spring from the mere will of the Justices in the majority but are supported, indeed compelled, by a proper understanding of the Constitution of the United States. Value choices are attributed to the Founding Fathers, not to the Court. The way an institution advertises tells you what it thinks its customers demand.

This is, I think, the ultimate reason the Court must be principled. If it does not have and rigorously adhere to a valid and consistent theory of majority and minority freedoms based upon the Constitution, judicial supremacy, given the axioms of our system, is, precisely to that extent, illegitimate." Bork, at 3-4.

Bork's Burkeanism is revealed in his bizarre critique of Griswold. Randy Barnett's modern formulation of the Ninth Amendment answers the question, but the traditional minimalism courts exercise obscures this fact. A Nixon protege, Bork had little room for individual rights.

Raoul Berger finally filleted Paul Brest in his Paul Brest's Brief for an Imperial Judiciary, 40 Md. L. Rev. 1 (1981), all but ending the debate. But on the Court, the LC still holds sway, with fellow Burkeans like CJ Roberts imposing his will AT will. And if the LC should prevail, its adherents got what they wanted: The Justices imposed their will, and you got out-voted. :)

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Trevor Chase
on October 23, 2017 at 13:54:44 pm

l lived through it too, Mark. But l won't rely strictly upon my own memory: https://www.washingtonpost.com/news/retropolis/wp/2017/05/11/the-saturday-night-massacre-your-commander-in-chief-has-given-you-an-order/ What Bork did was inexcusable, as was the Ford pardon.

Now, we have an entire class of prominent citizens who are "too big to jail": Bill Clinton (perjury), Bush/Cheney (war crimes), Hillary (more than once), Clarence Thomas (felony violations of ElGA), Donald Trump (mail fraud), and anyone who bribed Manhattan DA Cy Vance. That's what we got for buying a used Ford.

Attorney General Elliott Richardson did the right thing. Deputy AG William Ruckelshaus did the right thing. But Bork did not, and history has rightly pilloried him for it.

"The political hacks in 1987 were the deceitful charlatans Ted Kennedy and Joe Biden.

Your inner hyper-partisan comes shining through; l'm sure you approved of deceitful charlatan Mitch McConnell’s outrageous treatment of Merrick Garland. To the hyper-partisan, your side always walks with the angels, while your opponents are in the hot tub with Satan himself. Back then, politics wasn’t so insanely tribal. Scalia was approved 98-2, but Bork’s stench was too pungent for a half-dozen Republicans to countenance.

l watched the hearings; Arlen Specter drove a stake through the heart of Bork's case.

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Trevor Chase
on October 23, 2017 at 14:08:55 pm

During the pendency of his Supreme Court nomination, Bork commented to the Judiciary Committee that Bolling v. Sharpe was wrongly decided in the morning, as the 14th Amendment didn't apply to DC and the 5th clearly didn't address the issue, and then "corrected" himself in the afternoon. So much for that.

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Kevin Gutzman
on October 23, 2017 at 14:13:07 pm

New alias, LawDawg a/k/a Miss Creant? Alas, same obnoxious persona.

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Mark Pulliam
on October 23, 2017 at 15:02:04 pm

My thoughts exactly!!!

Same old lefty bullshit!

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gabe
on October 23, 2017 at 16:05:35 pm

lOW, channeling my inner Gorsuch. :)

Forgive me for disrupting your hermetically-sealed echo chamber. l expect it from LW sites like the HuffPo-- wearing their bans as a badge of pride--but l especially find it disheartening on a libertarian blog, where the owners should be embracing robust debate.

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Trevor Chase
on October 23, 2017 at 16:14:26 pm

We may not know how Judge Bork would have handled the 2nd Amendment decisions but we do know how Justice Scalia voted (I am an admirer of both). Justice Scalia applied the Amendment to the States even though he knew it was wrong to do so. In his book. A Matter of Interpretation, Justice Scalia writes, "Of course, properly understood, it [the 2nd Amendment] it is no limitation upon arms control by the states." Even though he beleived that incorporation of the Bill of Rights in the 14th due process clause was a fantasy of the Court, he accepted it as a fait accompli. Justice Thomas had the courage to dissent and correctly point out that the Court had found meaning in the clause that simply wasn't there. Unfortunately, he then injected meaning into the priviliges or immunities clause that isn't there.

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Willmoore
on October 23, 2017 at 16:55:30 pm

Nawhh, Dawg:

It is the nastiness that folks object to AND (as in the reagan essay above) the unending proffering of the same tired old lies and narrative about issues / personalities.

BTW: I did like the Gorsuch line - Ha! (I don;t do *modern* hieroglyphics, BTW - so "No emojis for you!!!).

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gabe
on October 23, 2017 at 17:09:59 pm

Back in the Thirties,during FDR's New Deal,much of Roosevelt's New Deal legislation was declared UnConstitutional and therefore unlawful by a Strict Constructionist Supreme Court. As time went by and certain Justices retired or died,they were replaced by FDR crony judges who bent the Law and "reinterpreted" the Constitution to suit FDR's cravings for a socialist/fascist government. With that said,after the Second World War and FDR's death,the Republicans took over the Congress and were set to dismantle much of Roosevelt"s New Deal legislation. At that time Congressman Claude
Pepper of Florida,an avowed Leftist Democrat and welfare state socialist,was asked by a reporter if Pepper thought that most of the New Deal legislation would be dismantled. Congressman Pepper's answer to the reporter was "No because we(the Left) have the Courts.
The upshot is,that much of the Federal Laws on the books today has questionable Constitutionality. And the sad fact is that people are being prosecuted,deprived of their property, jailed and deprived of their rights by a cadre of rogue justices and prosecutors who take their orders not from the lawful legal system but from a myriad of Administrative bureaucratic agencies and courts that have taken the Constitution out of play and instead substituted Administrative law. If you don't believe me,try and use the Constitution as a defense in a Tax case.

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libertarian jerry
on October 23, 2017 at 17:38:14 pm

Interesting speculation, what would Bork have done with guns had Kennedy not Borked him?

But there is no doubt what would have happened to Bork's most hated judicial fabrication, a woman's right to choose. Cowardly Kennedy replaced stalwart Bork in wavering Casey and with his "switch in time" saved the monster Roe ("It's alive.")

Hence, we lifers mourn most poor Bork his trashing.

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timothy l. harker
on October 23, 2017 at 18:40:57 pm

[As an aside, l want to commend you on Revolutionary. l'm a fellow Jefferson junkie; though he never wrote a book on political philosophy, his Notes and hundreds of letters serves as one, and his influence on Madison was profound. His writings, taken as a whole, are even more valuable on that score than the Federalist.]

A lot of brilliant people got a lot of things subtly wrong to get us to the modern (healthy) state of originalism. l recall being riveted to the VCR during the Bork hearings; sadly, it was the last time a candidate's judicial philosophy was ever allowed to be on display. lt was my first real exposure to originalism, and perhaps the last time l saw a stone-cold sober Ted Kennedy. :)

Biden's opening speech was uncommonly competent for him, but infused with cringe-worthy presuppositions of LC. lt didn't sound that bad at the time, but today? However, his most astute observation that Bork's judicial philosophy was "neither liberal nor conservative." This is exactly what we want in an originalist judge.

Bork summarized that philosophy in his opening remarks, https://www.c-span.org/video/?c4236684/robert-bork-opening-statement, well worth eight minutes of your time. He abjured the notion of "liberty of contract" so treasured here. But the most glaring flaw in his theory is the one modern originalism abandoned in its effort to work itself pure: that we can ever wrap our minds around what the Framers "intended."

Bork left a paper trail, which was routinely problematic. "It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it," Marbury v. Madison, but inexplicably, Bork took an eraser to the Ninth. ln short, if Bork had embraced Randy Barnett's modern interpretation of the Ninth, he probably would have been one of our greatest Justices.

On balance, Bork did a marvelous job as a witness. But this hearing wasn't about pubic hairs on Coke cans. This was all about substance, and Bork didn't try to shine anyone. The bottom line was that too many people were willing to buy off on his unreasonably stilted view of individual liberties.

Post-Bork, the hearings have become Kabuki theater. Who can forget Elena Kagan, running in terror from the sensible observations of a certain Oxford grad student, who asserted
that the Supreme Court’s record of poor judicial craftsmanship

"....is at least partially attributable to the enormous power that Justices possess and the attendant temptations that they face. U.S. Supreme Court Justices live in the knowledge that they have the authority either to command or to block great social, political, and economic change. At times, the temptation to wield this power becomes irresistible. The Justices, at such times, will attempt to steer the law in order to achieve certain ends and advance certain values. In following this path, the Justices are likely to forget that they are judges and that their Court is a court. Their concentration on end results leads them to neglect legal means: It leads them to neglect the importance of basing all rulings on conventional sources of law."

Elena Kagan, The Development and Erosion of the American Exclusionary Rule: A Study in Judicial Method (unpublished Master’s thesis; Apr. 20, 1983).

Post-Bork, candidates don't testify; they testi-LlE.

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Trevor Chase
on October 23, 2017 at 18:51:05 pm

Tim, how is that a "judicial fabrication"? The Ninth Amendment equates enumerated and unenumerated rights, and all rights are retained by the individual unless expressly ceded. As the Fifth/Fourteenth only protect the rights of persons, and in 1791 and 1868, you didn't become a person until you were born, they cannot protect fetal life. To find that a right to an abortion isn't guaranteed, you have to engage in constitutional eisegesis.

Conservatives love judicial activism ... but only when it goes their way. Originalists despise it, no matter who indulges.

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Trevor Chase
on October 23, 2017 at 19:03:21 pm

Actually, the First Congress did pass a law requiring men of militia age to purchase firearms.

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Trevor Chase
on October 23, 2017 at 20:08:33 pm

Dawg:

Good stuff there; I wonder if Kagan would care to comment on her "young, immature" vision of the Court?

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gabe
on October 23, 2017 at 20:13:10 pm

And yet, not one of the "crafters" would have imagined a "right to abortion" under either the 9th, 5th or 14th.
Recall these are the same people who would have never countenanced gay / tranny, etc rights; yet the left and the libertarians would have you believe *intended* for those fairly straightforward amendments to guarantee behaviors that were in their minds abhorrent.

Also, even in pre-Ratification days, a charge of manslaughter could be brought against someone who killed an unborn child.

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gabe
on October 23, 2017 at 20:44:24 pm

Oops - let me correct something here (or redact it):
Leave out last sentence of my comment above as I am not comfortable with the reference I was supplied.

HOWEVER:

It strikes me that for all the huffery in some quarters re: the (9th and unenumerated rights that COTUS is actually SILENT on the matter of abortion and LGBT issues. It is inconceivable to any sane reader that in a culture that was (ostensibly) rather *modest* in behavior, sexual mores, and with, what one can only characterize as, a repressed sexual milieu that the *crafters* of COTUS would knowingly AND intentionally, as some assert, put forth a constituent law that would not only permit, but enshrine as a basic right, the very practices which met with scorn, derision and criminal penalties at the time.

At best, one can assert that COTUS is silent owing to the crafters inability to foresee radical social / moral and behavioral changes. To argue that COTUS does "demand" recognition of such rights would be to correspondingly assert that the 9th is, not as Bork suggested an "inkblot" onto which we may project any "dang" thing we want, but rather to assert that the 9th IS SILENT and that the States are unable to regulate morals as it determines.

SCOTUS erred not in claiming that a woman had a right to choose but in determining that a State did not have a corresponding right - in effect SCOTUS is to blame for the final demise of the 9th.

Question: Can States outlaw bigamy? or a *peculiar* form of animal husbandry as animals are not persons (but in New Zealand, a river is - sheer lunacy!!!!

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gabe
on October 23, 2017 at 21:46:50 pm

"Nastiness," gabe? Sarcastic? Guilty as charged and unrepentant. But nasty?

"Tired old lies" means "statements you don't agree with." The CBO--run by a conservative--ran the numbers on trickle-down; l am merely reporting their conclusion. As for free trade, look at what has happened to our manufacturing base.

Ted Kennedy was a jackal; there is nothing one can say that would EVER persuade me to give him a pass on Chappaquiddick. Full stop. Robert Bork was a brilliant man who committed what many (even Republicans!) agree was an unforgivable moral lapse. The Joe Biden of 1987 ran the Bork hearings quite capably, and was no more a "partisan hack" than a Strom Thurmond. l believe in standing on principle, and have no sympathy for those who don't. Hence, my judgment of Bork.

lf "obnoxious" means "disagreeing with others," l suppose that that cannot really be helped. lf you want to be HuffPo or DailyKos Right, you can extinguish dissenting voices. But if so, what have you gained? You will, of course, be in interesting company: Goebbels claimed that it is "the absolute right of the state to supervise the formation of public opinion," Foreign News: Consecrated Press, Time, Oct. 16, 1933, and Lenin thought that to grant the weapon of freedom of the press to one’s opponent is to "ease the enemy’s cause." Vladimir I. Lenin, Pravda (1912). Winston Churchill’s observations regarding Adolf Hitler applies with equal force here:

"You see these dictators on their pedestals, surrounded by the bayonets of their soldiers and the truncheons of their police. On all sides they are guarded by masses of armed men, cannons, aeroplanes, fortifications, and the like -- they boast and vaunt themselves before the world, but in their hearts there is unspoken fear: They are afraid of words and thoughts! Words spoken abroad, thoughts stirring at home -- all the more powerful because forbidden. These terrify them. A little mouse of thought appears in the room, and even the mightiest potentates are thrown into panic."

Winston S. Churchill (BBC Radio broadcast to London and America, Oct. 16, 1938), reprinted at Randolph S. Churchill, Into Battle 58-59 (Hesperides Press 2006).

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Trevor Chase
on October 23, 2017 at 22:29:15 pm

Oh, good! I thought I was going to be ignored here. Thank you, Trevor.

Okay. You're responding to my last sentence regarding government force. Maybe I'm naive, but I've got to say that I don't really think the corrupt John Robers Obamacare decision can be used as an equivalent issue to perceived or actual 18th-century defense of our nation. From what I've read, the Militia Acts were basically conscripting manpower for defense and the men were to provide their own weaponry, right? So, isn't the defense of the nation one of the few proactive Constitutional duties of our Federal Government? The government cannot do that without at least some of the citizenry helping them. Wouldn't that be a shared concern? I don't think the government collected taxes at that time from the citizens. So, it would make sense that they would have to buy weapons and ammunition for their own safety, too. Also, I'm sure that most of the militiamen would have already had the required weapons since they were necessary tools, in those times, to have them to hunt for food and for self-defense.

Did I deal with your cited issue properly? Or, am I all wet? We all are aware that men will never be perfect and we will never "by the book" adhere to what the founding documents say. However, in returning to my original question, even with the strange wording of the 2nd Amendment, aren't the gun-grabbers completely off-base with their arguments given the intent of our founding documents?

I'd really like to know because I know I tend to leave off details in my thinking and look at things with a more "big picture" view. So, it's possible my mind does over-simplifies things.

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Juli
on October 23, 2017 at 22:47:48 pm

Am I wrong, or do you read like someone "Near Chicago?"

RRS

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R Richard Schweitzer
on October 23, 2017 at 23:14:12 pm

I'm sorry?

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Juli
on October 23, 2017 at 23:32:19 pm

gabe: "And yet, not one of the “crafters” would have imagined a “right to abortion” under either the 9th, 5th or 14th."

Abortion was perfectly legal for centuries, starting with the canon law. (This made Coke livid.) The only limit was a practical one.

l'd like you to take up Patrick Tomlinson's challenge: "https://www.boredpanda.com/pro-life-anti-abortion-argument-patrick-s-tomlinson/

gabe: "Recall these are the same people who would have never countenanced gay / tranny, etc rights"

Jefferson thought that buggery should have been a capital offense -- but the Framers wrote the Amendments in such a way as to make that result legally inevitable. You had every chance to pass the "We hate those icky gays Amendment," so it is all on you.

gabe: "COTUS is actually SILENT on the matter of abortion and LGBT issues."

lt is silent about a lot of rights. Why? All rights are retained unless they are ceded to the government. Even the ones you don't like.

gabe: "At best, one can assert that COTUS is silent owing to the crafters inability to foresee radical social / moral and behavioral changes."

l'll stipulate. But it is incumbent upon future generations to rectify perceived shortcomings. lt is inappropriate for SCOTUS to fill in those blanks, in the way Posner did it in Hively.

gabe: "the States are unable to regulate morals as it determines."

They can outlaw prosecution, and criminalize marijuana possession under the police power. But it is tough to credibly argue that the public interest is affected if Barry does to Gary the exact same thing he did to Mary the night before.

gabe: "SCOTUS is to blame for the final demise of the 9th."

The Ninth is alive and well; it just doesn't do what you want it to.

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Trevor Chase
on October 24, 2017 at 10:25:13 am

Yeah, Dawg:

It is inappropriate for SCOTUS to do that; yet, we end up with SCOTUS being the 8final* arbiter and not the States or the People. This concerns me.

And yes, it is tough to argue that Barry can (or cannot) do one thing but not another. Then again, it is hard to argue similarly about a host of behaviors. Yet, this is precisely what we have done throughout history. The question is: who is to determine the outcome. The Black robes or the people; and yes, COTUS does speak to many such contentious issues BUT not all.

So as you say, perhaps, it does resolve itself into "Well, what is it that i prefer -and this is then rationalized by text / emanantions / penumbras, etc. Right and Left - BTW.

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gabe
on October 24, 2017 at 10:34:44 am

Dawg:

Don't put me in the "free trader" cabal! A bunch of self serving avaricious apologists for THEIR own enrichment.

BUT: don;t blame ronnie Rayguns for the offshoring of manufacturing. It did not begin until after Ronnie left office and as I recall, the thrust came from certain academic quarters (Wharton / Harvard business schools. etc) and then was gleefully seized upon by 20-something year old analysts on Wall Street whose revenue forecasts predicated upon new metrics were used to change corporate behavior. In a nutshell, corporations now had to demonstrate that they could meet the newly *divined* master metrics of Wall Street "wunderkids."

A bloody travesty as whole industries were literally (in some cases, to include even the expensive tooling) shipped offshore. This was the trend of the 1990's and the 2000's.

Blame Billy Boy more than Ronnie Rayguns for this.

Actually I am still pissed off about it - as I had to let go many many good people. And ultimately, left myself.

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gabe
on October 24, 2017 at 11:23:37 am

On Samizdata.net (UK) there is an astute commentator, "Juli Near Chicago."

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R Richard Schweitzer
on October 24, 2017 at 13:01:45 pm

Oh! Thank you. No, I'm in Southern California. I will check her out.

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Juli
on October 24, 2017 at 15:18:17 pm

That's the dilemma Bork spoke of. For good or ill, we placed as many natural rights as we could beyond the reach of "ill-tempered" majorities (Madison). What the Posner faction did in Hively and King John of Roberts did in Shelby County--usurp the proper role of the legislature--was inexcusable. But tyranny of the majority is equally problematic; you only want mob rule when you get to control the mob.

As Bork explained, the people will accept what SCOTUS says when it is clear that they are not speaking for themselves. (That is the main reason l prefer quoting others to stating my own opinions: lt's generally more persuasive.) When l can draw a clean line from COTUS and the underlying common law (legislative history is mostly invoked to confirm my reading) to the answer, it is probably a sound answer. But l have to internalize what Scalia only talked about: even accept the answers l don't like.

Kagan isn't telling us anything we don't already know. And therein lies the ultimate problem.

There are a lot of RW precedents that don't just rely on ethereal emanations from penumbrae; they directly contradict the text and structure of the document.

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Trevor Chase
on October 24, 2017 at 15:30:41 pm

[…] at the Library of Law & Liberty, Mark Pulliam wonders what might have been had Bork, not Kennedy, made it through. “As a justice, Bork would likely […]

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When Judicial Restraint Trumps the Second Amendment – DC Weekly News and Politics
on October 24, 2017 at 15:43:08 pm

Collective Liberty by Professor Josh Blackman

http://www.hastingslawjournal.org/wp-content/uploads/Blackman-67.3.pdf

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Breyer Patch
on October 24, 2017 at 16:41:01 pm

Dawg:

A question for you - or maybe just a solicitation of an opinion.

So let us accept what the Borkster said that the people will only accept.....

Do you think that in recent decades the court has undermined or enhanced the peoples perception of the Black Robes fidelity to COTUS?

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gabe
on October 24, 2017 at 18:25:46 pm

Hey Dawg:

Can you give me a link to a succinct version of Barnett's formulation.
I would like to study it. if you would be so kind.

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gabe
on October 24, 2017 at 20:02:17 pm

Interesting website! I was able to search "Julie Near Chicago" but only found a couple of postings by her. So, I didn't get much of a sense of who she is. One posting, however, in 2015 made it clear she didn't like Trump. I'm the opposite. I like him very much. He is the fighter we needed at the time we needed him, flaws and all. I think he's going to be reelected handily, should he run again in 2020.

I guess there's not much interest in answering my dumb layman question. That's okay! I'll assume I'm onto something and use that in online arguments with gun grabbers. :-)

Thank you!

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Juli
on October 24, 2017 at 21:22:58 pm

Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (rev. ed. 2014), is likely to be his most accessible work aimed at the layman. (l read the original edition, and have followed him ever since.) He has written prolifically on the topic, http://www.law.georgetown.edu/faculty/barnett-randy-e.cfm. The latter is more about lawprofs writing to lawprofs, but the price is right.

Other profs l can strongly recommend include Lawrence Solum; he does a better job overall, but tends to get lost in minutiae. His Originalism and Constitutional Construction is free, and a good place to start. Suja Thomas is the go-to prof on the judicial immolation of the Seventh Amendment.

l agree with them most of the time.

The theory has come a long way since Bork.

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Trevor Chase
on October 24, 2017 at 21:23:59 pm

l've tried. She took the 5th. :)

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Trevor Chase
on October 24, 2017 at 21:24:49 pm

Even Bork doesn't agree with you, Jerry.

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Trevor Chase
on October 24, 2017 at 21:58:08 pm

gabe: "Do you think that in recent decades the court has undermined or enhanced the peoples perception of the Black Robes fidelity to COTUS?"

Undermined -- immensely. The only people who believe in their fidelity to the law are the incurably ignorant.

lf all judges did was call balls and strikes, no one would give a damn whether Garland or Gorsuch was behind the plate. But EVERYONE has capitulated to the fact that this is no longer the case. Our best jurists are kept off the bench, while monuments to mediocrity like Thomas, Kennedy, and Sotomayor infest the bench. But the denials are ubiquitous. Elena Kagan could not speak the truth.

The only consistent repository of candor is from those who have left the bench, such as retired Chief Judge Patricia Wald of the D.C. Circuit (who has since moved on to the World Court), who admitted:

"I have seen judges purposely compromise on an unpublished decision incorporating an agreed-upon result in order to avoid a time-consuming public debate about what law controls. I have even seen wily would-be dissenters go along with a result they do not like as long as it is not elevated to a precedent. We do occasionally sweep troublesome issues under the rug…"

Patricia M. Wald, The Rhetoric Of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1374 (1995).

Courts don’t write laws; they decide disputes. When a court sweeps a “troublesome issue” under the rug, it usually sweeps a man’s life under the same rug. And based on court statistics, "occasionally" is about 25% of all federal appeals.

This "lefty" stuff could come as easily from Bork and Scalia.

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Trevor Chase
on October 25, 2017 at 11:11:10 am

Thanks - I will check the Barnett link and i don't mind tha "lawprof" version - just so long as it is succinct. Hard to read with rambunctious grandkids crawling all over.

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gabe
on October 25, 2017 at 11:20:08 am

"The Ninth is alive and well; it just doesn’t do what you want it to."

You are, of course, referring to the Ninth Circuit. (couldn't resist).

Also, I will repeat my claim that this country was far better off, far healthier when the overwhelming preponderance of the citizenry COULD NOT NAME a single Black Robe on SCOTUS.

Everybody wants to be a damn star. Hollywood has it's Weinsteins; SCOTUS also has folks fiddling around under their robes and fantasizing....

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gabe
on October 25, 2017 at 11:53:25 am

Interesting article. I note that at least twice the author implies a difference between a right and a power.

After reading it, I agree with Richard.

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z9z99
on October 25, 2017 at 14:52:45 pm

That Hastings essay was *scary* an serves to highlight R. Richard's argument or at least ponder whether a "collective right" can only exist if it is allowed to ignore the consequent *obligation(s)* that accompany any and all rights.

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gabe
on October 25, 2017 at 16:17:02 pm

Dawg:

Thx again for info.

Read the following:

http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2278&context=facpub

Am in agreement with the "rights - constraint' thesis advanced by Barnett; also think that those who argued for the "rights-powers" conception of the 9th may unknowingly be conflating *individual* rights with *collective rights*. A problem to my way of thinking.

Also ordered Presumption of Liberty - so thx again.

Of course, I am still NOT convinced on the extent, or as you would have it, the *limits* of "police powers" - but let me read through more of Barnett.

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gabe
on October 25, 2017 at 18:31:04 pm

Trevor Chase: What part of "watch Elliot Richardson's testimony" do you not understand? Richardson testified under oath that he, along with another guy who resigned, convinced Bork not to resign and instead to obey Nixon.

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brad
on October 25, 2017 at 22:08:17 pm

Another look at the Second Amendment

Since others believe and cultivate something I do not see, neither logic or theory I can understand, I have been forced to study and relate my reading of the Second Amendment. In the making of our United States Constitution I have 49 plus reasons that help to explain my understanding of the Second Amendment.

The Constitution of the United States was established and formulated as a result of the Articles of Confederation. Article 6, reflects part of that vision, “..nor shall any body of forces be kept up by any State in time of peace,… but every State shall always keep up a well- regulated and disciplined militia,...”

If, as some may argue, that the Second Amendment’s “militia” meaning, is that every person has a right to keep and bear arms. The only way to describe one’s right as a private individual, is not as a “militia” but as a “person” (“The individual personality of a human being: self.”).

Articles of Confederation lists eleven (11) references to “person/s.”
“If any person guilty of…
“..and no person shall be capable of...”
“..nor shall any person...”
“..shall be protected in their persons..”
“..nor shall any person holding any office...”
“..granted or surveyed for any person, ..
“..Congress shall name three persons..”
“..list of such persons each party shall..”
“..and the persons whose names shall..”
“..nominate three persons..”
“..provided that no person be allowed to serve..”

“Person” or “persons“” is mentioned in the Constitution 49 times, to explicitly describe, clarify and mandate a Constitutional legal standing as to a “person”, his or her Constitutional rights.

Whereas in the Second Amendment, reference to “person” is not to be found. Was there are reason?. The obvious question arises, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey same legal standard in defining an individual’s right to bear arms as a “person”?

“Person” is one as described by Merriam-Webster Dictionary as a “citizen”. “A person who owes allegiance to a government and is entitled to its protection.”

Merriam Webster “militia”, “a body of citizens organized for military service : a whole body of able-bodied male citizens declared by law as being subject to call to military service.”

Article 2, Section 2 “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States;…”

In the whole of the U.S. Constitution, “militia” is mentioned 5 times. In these references, there is no mention of person or persons. One reference to “people“ in the Second Amendment. People, meaning not a person but persons, in describing a “militia”. “People” is mentioned a total 9 times.

It’s not enough to just say that “person(s)” is mentioned in the United States Constitution 49 times. But to see it for yourself, and the realization was for the concern envisioned by the Framers that every “person” be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person”.
 
“..No Person shall be a Representative..” (Article 1 Section 2)
“..whole Number of free Persons,..” (Article 1 Section 2)
“..three fifths of all other Persons…” (Article 1 Section 2)
“..No person shall be a Senator…” (Article 1 Section 3)
“..And no Person shall be convicted…” (Article 1 Section 3)
“..no Person holding any Office…” (Article 1 Section 6)
“..Names of the Persons voting for…” (Article 1 Section 7)
“…of such Persons as any of the States…” (Article 1 Section 9)
“…not exceeding ten dollars for each Person…” (Article 1 Section 9)
“…And no Person holding any…” (Article 1 Section 9)
“…or Person holding an Office of Trust of…“ (Article 2 Section 1)
“…and vote by Ballot for two persons,…” (Article 2 Section 1)
“…List of all the Persons voted for,…” (Article 2 Section 1)
“…The Person having the greatest Number of Votes…” (Article 2 Section 1)
“…and if no Person have a Majority,…” (Article 2 Section 1)
“…the Person having the greatest Number…” (Article 2 Section 1)
“…No person except a natural born Citizen,…” (Article 2 Section 1)
“…Any Person be eligible to that ….” (Article 2 Section 1)
“…No Person shall be convicted of …” (Article 4 Section 3)
“…except during the Life of the Person attainted….”. (Article 4 Section 3)
“…A Person charged in any State…” (Article 5 Section 2)
“…No Person held to Service…” (Article 5 Section 2)
“…The right of the people to be secure in their persons,…” (Amendment IV)
“…and the persons or things to be seized….” (Amendment IV)
“..No person shall be held to answer…” (Amendment V)
“..nor shall any person be subject for the same offense….” (Amendment V)
“…they shall name in their ballots the person voted for as President,…” (Amendment XII)
“…the person voted for as Vice-President,…” (Amendment XII)
“…all persons voted for as President,….” (Amendment XII)
“…all persons voted for as Vice-President…” (Amendment XII)
“…The person having the greatest Number of votes for President, …” (Amendment XII)
“…and if no person have such majority,…” (Amendment XII)
“..the persons having the highest numbers …” (Amendment XII)
“… The person having the greatest number of votes…” (Amendment XII)
“..and if no person have a majority,…” (Amendment XII)
“…But no person constitutionally ineligible…” (Amendment XII)
“…All persons born or naturalized …” (Amendment XIV Section 1)
“… any State deprive any person of life, liberty, or property,” (Amendment XIV Section1 )
“…nor deny to any person within …” (Amendment XIV Section1)
“…number of persons in each State,….” (Amendment XIV Section 2)
“…No person shall be a Senator or …” (Amendment XIV Section3)
“..and such person shall act accordingly….” (Amendment XX Section3)
“…of the death of any of the persons from…” (Amendment XX Section4)
“…case of the death of any of the persons from…” (Amendment XX Section4)
“…No person shall be elected to the office…” (Amendment XXII Section1)
“…and no person who has held the office of President,…” (Amendment XXII Section1)
“..to which some other person was elected…” (Amendment XXII Section1)
“…shall not apply to any person holding the office…” (Amendment XXII Section1)
“..prevent any person who may be holding…” (Amendment XXII Section1)

What am I missing?

Haiki

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William Heino Sr.
on October 26, 2017 at 09:47:53 am

A fairly basic concept. The Framers made no attempt to list all of the natural rights of Man, on the grounds that it would be impossible. One of the most foundational was the right to self-defense; the collective manifestation of this right was the right to revolution. New Hampshire's constitution provides, in pertinent part:

[Art.] 2. [Natural Rights.] All men have certain natural, essential, and inherent rights - among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness.

[Art.] 2-a. [The Bearing of Arms.] All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.

[Art.] 3. [Society, its Organization and Purposes.] When men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void.

[Art.] 10. [Right of Revolution.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind."

This was written in 1784, five years before ratification of our national Constitution. There was never any need to carve out an express individual right because "it was in there."

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Trevor Chase
on October 26, 2017 at 09:52:30 am

You can't have a "collective right" that is not, at essence, an aggregation of individual rights.

As for obligations, you have a right to worship Supreme Beings in any way you see fit. What is the "obligation" that comes with it?

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Trevor Chase
on October 26, 2017 at 09:55:27 am

l remember it well. lMHO, there was no excuse that was sufficient.

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Trevor Chase
on October 26, 2017 at 09:57:37 am

Once you acknowledge that the government CAN make you purchase something, that point is lost.

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Trevor Chase
on October 26, 2017 at 10:07:26 am

That is the prototype for Randy's life work. When you understand that the 9Am is not an inkblot, and what Madison's committee had in mind, what it means is self-evident.

The police power cannot be open-ended, as it could potentially invalidate the BoR in toto. What is the police power, if not the right of the State to ensure order for the benefit of the people as a whole? Go beyond that, and its underpinnings are no longer sound.

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Trevor Chase
on October 26, 2017 at 10:32:36 am

Amen!

and....

"...the right of the people to keep and bear arms..." is rendered a constitutional absurdity or nullity if the term people is reduced to an abstraction!

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gabe
on October 26, 2017 at 16:45:46 pm

This is why I think that Blackman's understated distinction between rights and powers is important. Conceivably, the ability of the state to prosecute criminals could be viewed as a collective right. Someone could conceivably argue that use of the death penalty is a "collective right," one that does not exist in individuals and therefore cannot be aggregated from them. There may be some utility in viewing criminal justice as a "collective right," e.g. it implies the obligation of due process, and humane treatment, etc. but these can also be viewed as rights of the individual accused against a state power.

The distinction between rights and powers is also present in the question of worship. In modern societies, the question "what is the 'obligation' that comes with it?" may be answered, for example "to refrain from sacrificing virgins," or "to forego slaying infidels." When these things do occur, it is not exercise of a right in any but the most abstract sense; it is an exercise of a power against those who cannot effectively resist it.

The concept of rights begins to sound a little weird when claimed by an entity with an overwhelming ability to use force. Did the allies have a right to fire bomb Dresden? Any concomitant obligations? Did the Royal Navy have a right to suppress the Atlantic slave trade? Did the U.S government have a collective right to relocate the Cherokees to Oklahoma? Or would the word "right" in that case just be a euphemism?

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z9z99
on October 27, 2017 at 13:18:59 pm

Everything is down to perception, no? The point of a Supreme Court, hopefully, is to give guidance based on the Rule of Law enshrined in the founding documents. I believe the term in the documents is "more perfect", not "perfect". So, no point is ever lost as history marches on, learning increases, and True Quality of thinking is infused into our government. It should always be hoped that interpretations IMPROVE, not devolve into a continued loss of the Original Purpose.

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Juli
on October 28, 2017 at 14:49:31 pm

What the First Congress did is strong evidence of the Framers' intent. lf you can be compelled to buy a gun, it logically follows that you can be compelled to buy health care.

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Trevor Chase
on October 28, 2017 at 21:57:06 pm

I disagree. The Founders were against tyranny but knew the government needed to have SOME but limited power. I explained above how compelling weapon ownership at that time was probably not even necessary due to the fact that most people owned a firearm anyway.

Defense is in the Constitution. The Constitution is silent on both health care and insurance. What is not in the Constitution, the 10th Amendment states all else is for the states or the people.

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Juli
on October 29, 2017 at 10:33:30 am

Juli: "The Constitution is silent on both health care and insurance. "

That's not quite how it works. The President has the authority (with the advice and consent of the Senate) under Art. ll to enter us into treaties, which are "the law of the land." Art. Vl, cl. 2. But while the lawmaking authority of Congress is somewhat narrowly circumscribed by Art. l, the scope of the treaty power is quite literally unlimited, save for the strictures of the Bill of Rights.

How does this work? We can't enter fully into a hate speech treaty or the small arms treaty, as the Feds do not have legal authority to eviscerate the 1Am or 2Am. What we do in these cases--in ALL cases, in reality-- is carve out a Reid v. Covert reservation, stating that to the extent that a treaty is inconsistent with COTUS, it is not binding on us.

Whether you like it or not (you probably don't), we are signatories to a treaty (the lCESCR) that obliges us to provide health care for all of our citizens. According to representations by State, when we sign a treaty, we review our laws to ensure that we are in compliance, enact laws to ensure our compliance, and then formally ratify the treaty. Congressional authority to enact conforming laws lies in the Necessary and Proper Clause. [This is technically wrong, but that is inside baseball.]

J: "I explained above how compelling weapon ownership at that time was probably not even necessary due to the fact that most people owned a firearm anyway."

Probably not true. NYC and Philly had populations over 30,000--not exactly good places for hunting game or lndians--and handmade muskets were expensive. Moreover, you are substituting your judgment for that of Congress, which is something l am loath to do.

J: "What is not in the Constitution, the 10th Amendment states all else is for the states or the people."

Again, this widely-held presupposition is subtly wrong. In introducing his original draft of our Bill of Rights to the House of Representatives, James Madison explained that he consciously avoided trying 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.

Agency law is often difficult for the layman to understand. Under our system, the people are co-sovereigns, holding sovereignty as tenants-in-common. ln state constitutions, they delegated part of that sovereignty to the various state governments. ln both COTUS and the Articles of Confederation, the States delegated part of their delegated sovereignty to the federal government. And in the Civil War Amendments, they delegated even more of it.

We are stuck with the COTUS we have, not the one you prefer. This one cannot proscribe abortion or SSM, or prevent Congress from enacting a regime of universal health care. But it does offer robust protection to gun ownership.

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Trevor Chase
on October 29, 2017 at 11:38:16 am

Please consider my review of Prof. Barnett's book.

http://www.theamericanconservative.com/articles/not-your-founders-constitution/

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Kevin Gutzman
on October 29, 2017 at 11:40:15 am

Thank you. I'm pleased that you enjoyed it.

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Kevin Gutzman
on October 29, 2017 at 11:50:06 am

Yes, he once told an acquaintance of mine, laughing, "We're not going to re-fight the Incorporation Doctrine."

In his memorandum for President George Washington on the constitutionality of Secretary of the Treasury Alexander Hamilton's Bank Bill, Secretary of State Thomas Jefferson began his analysis by saying, "I consider the foundation of the Constitution as laid on this ground: That 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.' [XIIth amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition."

To concede the validity of the unfounded Incorporation Doctrine is to abandon this "foundation of the Constitution," to allow the entire New Deal revolution, and to grant that the Left will forever enjoy the constitutional coup de regime it accomplished in 1937-43. From there to a general legislative power for Anthony Kennedy is but one step.

Admirers of Justice Scalia commonly say that Scalia's devotion to constitutionalism is proven by his opinion in Johnson v. Texas (which more or less echoed the Texas Court of Criminal Appeals opinion written by a friend of mine who was then a briefing attorney for that court). Scalia, we're reminded, said he'd like to punch flag burners in the nose. He also said, however, that he wouldn't want to live in a country that punished flag burning. In other words, he conceded that this particular instance of the Court's reliance on the unfounded Incorporation Doctrine yielded a policy outcome congenial to Scalia. If he really was an originalist, we'll need other evidence of which I'm unaware.

(In case anyone be disposed to doubt the accuracy of Secretary Jefferson's understanding of the Constitution, I humbly call his attention to chapter 1 of my latest book, Thomas Jefferson--Revolutionary.)

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Kevin Gutzman
on October 29, 2017 at 11:53:18 am

Yes, Bork did agree with Jerry. In his testimony before the Senate Judiciary Committee, he said his attitude toward the Court's Commerce Clause jurisprudence would be "Go, and sin no more"--that is, that he was no threat to the transfer-payments programs or the regulatory state as it was, but he would enforce the Tenth Amendment principle for there on out.

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Kevin Gutzman
on October 29, 2017 at 11:54:28 am

Absent the Incorporation Doctrine, this is an issue only in relation to DC, military bases, and other Federal Government territories.

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Kevin Gutzman
on October 29, 2017 at 13:14:27 pm

As I understand it, Missouri v. Holland is no longer good law--that is, the Supreme Court no longer concedes that the president and Senate can skirt the rest of the Constitution by adopting a treaty.

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Kevin Gutzman
on October 30, 2017 at 01:51:45 am

Medellin is hardly the first time the RATS Wing of SCOTUS used their (illegitimate) "judicial veto" to rewrite COTUS. They make Earl Warren look like a rank amateur.

Jefferson was prescient, as usual.

COTUS says what it says ... but when the text no longer controls, of what value is it?

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Trevor Chase
on October 30, 2017 at 01:58:06 am

Deserves more than a glib response. Will absolutely tackle it in the morning.

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Trevor Chase
on October 30, 2017 at 09:38:30 am

I also adm
ire Bork and Scalia, but I question the " outspoken opposition to the judicial recognition of unenumerated rights." in Griswold v. Connecticut[2].

Amendment IX states
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
So there is an implicit argument that some non- enumerated rights exist.

Amendment X states
"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."

From those two seldom applied amendments, I'd argue that, since there is no federal authority in the constitution to regulate intra-state sexual practices, as opposed to interstate trafficikng, that power is reserved to the states, or people. In this case, the Federal Government has no power to overrule the state of Connecticut.

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Alan D McIntire
on October 30, 2017 at 10:00:57 am

[1 of ?] Kevin:

COTUS is a mundane treaty, creating an express and limited agency. Ergo, pacta sunt servanda and contract law principles apply. The Framers "meant what they said and said what they meant." CL canons of statutory construction were to be used (e.g., "It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it." [Marbury v. Madison]), and terms of legal art (e.g., "pardon," "good behaviour") had the same meaning that they did at common law. 3 Elliot, Debates 531, 546, 558-9, 573; United States v. Wilson, 32 U.S. 150 (1833),

At the risk of stating the almost insultingly obvious, there is one and only one correct way to interpret the Constitution, and the most effective summation of this principle comes (as it always seems to) from the pen of Thomas Jefferson:

"Our peculiar security is in possession of a written constitution. Let us not make it a blank paper by construction. If [our public officials’ powers are boundless] then we have no constitution. If it has bounds, they can be no other than the definition of the powers which that instrument gives."

Thomas Jefferson, Letter (to Wilson Nicholas), Sept. 7, 1803 at 2.

At the end of the day, COTUS was your classic "good deal": nobody really got what they wanted, but everyone got what they needed.

For this reason, l am loath to wade into the dispute of whether Americans spoke with one voice. On one level of abstraction, they did: they all bought off on the deal. But on the other, these were sovereign States, with a host of provincial interests. So, in the words of Ben Kenobi, "what I told you was true, from a certain point of view."

Barnett gets to the right place, even if you can quibble as to whether he took the optimal path. Before the CWAs, we had a more bifurcated system, but Congress intended to overturn Barron v. Baltimore. And in so doing, the States ceded a large portion of their sovereignty to the Federales.

K: "Blackstone, defined “sovereignty” as the final authority that was necessary in every society. This final authority, he said, was indivisible and illimitable. Where is this authority in the American constitutional system?"

This is easy to answer. Technically speaking, the United States is not a sovereign nation, as the people did not transfer the “supreme, absolute, uncontrollable power, the jus summi imperii,” 1 J. Story, Commentaries at § 207, upon its creation. Rather, this is held by the citizenry as tenants-in-common, and the States and federal government, as their agents, were delegated powers and assigned duties. See e.g., N.H. Const. art. 7.

l don't know why conservatives bleat about Chisholm. lt was a technically correct interpretation of COTUS as written; Blair and Wilson were actual Framers. The system worked as designed. The 11Am was purely jurisdictional: lf you were a citizen of another State, you could not sue a State in federal court. lf you were a citizen of that State, you could--or otherwise, Section 1 of the 14Am would be denuded of meaning. Bottom line, it was an anti-hometowning provision.

[cont.]

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Trevor Chase
on October 30, 2017 at 10:55:08 am

[2 of ?] Kevin:

K: "For several decades now, conservatives have looked on in dismay as the country has suffered under a veritable onslaught of judicial lawmaking in the name of “emanations of penumbras” of the Bill of Rights and other constitutional provisions supposedly entitling courts, particularly federal courts, to substitute their ever-changing Progressive-nationalist vision for the states’ preferences."

That statement has the distinct and pungent odor of outcome-based jurisprudence. You appear to have no objection to the rewriting of COTUS, as long as you approve of the outcome. The "RATS Wing" of the Court has rewritten the 11Am and eviscerated the 7Am, but you are not offended in the slightest. "But them icky GAYS!!!!"

Where do you find sovereign immunity in the text, the "emanations of penumbras" of the text, or even the white spaces between the lines of COTUS? [Hint: Even Scalia couldn't find it! Antonin Scalia, Historical Anomalies in Administrative Law, Y.B. Supreme Court Hist. Soc’y. 103, 104 (1985).]

When you start denouncing CONSERVATlVE judicial activism, wake me up.

What conservatives don't want to understand is how the 9/10Am works. As a Madison scholar, you ought to know better, but for the record, let me explain it. In introducing his draft of our Bill of Rights to the House of Representatives, 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 read 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. Professor Barnett refers to this foundational concept as "the presumption of liberty."

Like it or not, the Framers’ Constitution is progressive-friendly. Take SSM: The right to contract is an essential corollary of the right to own property, as you must be able to acquire and dispose of it to actually own it. In a secular society, marriage is a mere contract, with default terms drafted by the State. Rights are retained by the individual unless ceded to the State; all that a State can do is abridge rights and then, only in accordance with the authority granted to it. As the right to marry is fundamental, Loving v. Virginia, 388 U.S. 1 (1967), the State has to show a compelling interest in preventing two persons from entering into that marriage contract. As the State cannot show that it is in any way harmed when Fred and Ted decide to wed, it has no colorable authority to prevent them from doing so. This must be so as long as ours is a constitutional Republic with limited government powers.

Then, consider the right to an abortion. As the 5/14Am only protects the rights of “persons,” and a fetus was not a person in 1791 or 1868, the State has no colorable authority to protect the fetus’s putative right to life. Of course, FedSoc types hate that. Law should not be “whatever a judge thinks it is on Wednesday,” and rights are too precious to be subject to a continual plebiscite.

But at the end of the day, you want to constitutionalize your personal preferences. To change the equation Bork highlights in his ground-breaking work. To bend COTUS to your will. But as Neil Gorsuch puts it,

"...judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best. As Justice Scalia put it, “[i]f you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

ln Part 3, l will address your "parade of horribles" seriatim.

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Trevor Chase
on October 30, 2017 at 12:44:06 pm

[3 of 3] K: "Thus, millions of kids were slapped into buses and sent to distant schools in the name of a supposed right to racial balance in public-school enrollments; the entire state of Missouri had its taxes raised for many years by a solitary federal judge in pursuit of the same; anodyne prayer was banished from public schools; abortion, sodomy, and gay marriage were declared to be rights; capital punishment was banned, then re-legalized, then banned in cases of rape (including rapes of small children, which the Supreme Court said was not a very important crime); pornography, nude dancing, and flag burning were declared to be “speech,” and thus constitutionally protected; due process was declared to include taxpayer-financed legal counsel; due process was declared to include a preemptive warning that one need not confess"

lt takes serious 'nads to argue that Plessy was correctly decided. l would argue that the elder Harlan had the better of the argument, but to issue that decision would have gotten SCOTUS lynched. The Living COTUS, on florid display. But Brown turns on a philosophical question that is not readily answered. "Apartheid Forever" and "Blood and Soil" may be the conservatives' battle-cry, but the law need not lend succor to it.

"[W]hen you pray, go into your room, close the door and pray to your Father, who is unseen. Then your Father, who sees what is done in secret, will reward you." Matt. 6:6 (NlV). Engel v. Vitale could have been brought by a Baptist minister; l've never understood conservatives' fondness for school prayer. lt is difficult to imagine a more flagrant Establishment Clause violation.

[Abortion: see above.]

As for sodomy, the first question you have to address is whether the alleged right to engage in oral or anal sex is a "natural right." And the answer appears obvious: lf Robinson Crusoe and Friday wished to indulge on that desert island, they could. Ergo, it is a "natural right." To hold otherwise is to implement a theocracy.

Then, you have to explain what legal authority a State has that empowers it to proscribe it. The commerce power? The police power? Where do you find that a consenting individual has ceded his or her right to engage in specific sexual acts? lf natural rights are retained unless and until they are ceded, and can only be taken away when the State can show a legally sufficient need to do so, the burden lies with you. Bowers was an act of conservative judicial lawmaking, properly reversed in Lawrence.

K: "pornography, nude dancing, and flag burning were declared to be “speech,” and thus constitutionally protected"

Why aren't they? Why don't conservatives just admit that they have their hearts set on implementation of a theocracy? What is SO offensive about the Song of Solomon? The naked human body? Who made you the arbiter of what l can see, hear, or say?

As Bork writes: "This is, I think, the ultimate reason the Court must be principled. If it does not have and rigorously adhere to a valid and consistent theory of majority and minority freedoms based upon the Constitution, judicial supremacy, given the axioms of our system, is, precisely to that extent, illegitimate.” These cases all have a unifying theme, rooted in the Bill of Rights and its legislative history: minority freedoms are to be read expansively.

(FWlW, it is illegal in Cuba (and, l presume, North Korea) to burn the national flag. )

K: "due process was declared to include taxpayer-financed legal counsel"

Our system has become sufficiently complex that it is hard to argue otherwise. What good is a "right" if you have no practical way to exercise it? lf we passed a law limiting the sale of bullets to one shop in Fairbanks, Alaska, and that you had to go there personally to purchase a limited amount, would that be an unreasonable impairment of the RKBA? Same principle.

K: "due process was declared to include a preemptive warning that one need not confess"

There should be some demarcation point where the citizen knows that he is being detained involuntarily to satisfy the requirements of due process (which, itself, is not defined with any precision). Good luck trying to overturn Miranda.

Capital punishment has been a fertile ground for judicial activism. And substantive due process is a mess, due to a natural judicial inclination to decide questions narrowly and a toxic dose of Austinian realism. In its modern iteration, the Footnote Four approach to rights jurisprudence reflects this reticence, but at the price of relegating 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.

K: "It is also an alternative to the Founders’—and it is thus not “our” constitution."

As l see it, Barnett's COTUS is a lot more faithful to the text--that, and nothing else, is the Framers' COTUS-- than the dystopian alternative you offer.

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Trevor Chase
on October 30, 2017 at 13:30:17 pm

To abolish the lncorporation Doctrine is to eviscerate the 14Am: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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." [Sec. 1] But what process is due?

The logic is simple and unassailable: If (a) you can assassinate tyrants, and (b) Judge X is a tyrant, then (c) you can assassinate Judge X. But as a practical matter, if judges ran a legitimate risk of being legally assassinated on their way home from chambers, no one would ever take the job. Accordingly, our Framers incorporated a vast array of practical safeguards--developed at common law--to protect litigants from tyrannical judges, and honest judges from aggrieved litigants.

At common law in 1789, it was difficult for any judge to abuse his office, and foolish for him to try. An aggrieved citizen could sue him in tort, Jay M. Feinman and Roy Cohen, Suing Judges: History and Theory, 31 S.Car. L. Rev. 201 (1980), remove him from office pursuant to a writ of scire facias, and in cases of corruption, criminally prosecute; convicted judges were even hung. Georgicum (1716).

The most important safeguard was the right to a jury trial: “a fundamental law, made sacred by the Constitution, [which] cannot be legislated away." Vanhorne's Lessee v. Dorrance, 2 U.S. 304, 309 (D.Pa. 1795) (Paterson, J, riding circuit). As Blackstone put it, "the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals." 3 Blackstone, Commentaries at 379. The intended benefit was to shelter the citizen from a despotic and/or aristocratic government.

So, what process is due? The right to have your case heard by a fair and independent tribunal? To a proper 7Am jury trial? To a grand jury indictment? To not be compelled to testify against yourself? lt appears to me that the 14Am necessarily nationalized the concept what is or is not due process.

l fail to see how TJ's take on COTUS 2.1 has any bearing on how we should interpret our COTUS 3.0, aside from the general declaration stated above. For good or ill, the 14Am says what it says. As it is a constitution we are expounding, it is often necessary that we make reasonable inferences from the text.

At the risk of stating the obvious, Jefferson was 3,000 miles away from the action, and the only strength of his opinion comes from his formidable intellect. One could argue that the authority to issue currency (anyone old enough to remember when dollars were backed by bullion?) includes authority to create a central bank that is capable of disseminating it. Jefferson eventually lost that argument, but l won't say dogmatically that he was right or wrong.

Was Scalia an originalist on the bench? Barnett and Sunstein agree. No. But that has no bearing on the question of whether flag-burning is protected speech. We don't need a 1Am to protect statements like "kittens are cute." lt is for the neo-Nazis marching through Skokie, the White supremacists shouting "Blood and Soil," and NAMBLA members advocating what they advocate. Speech that infuriates us. And while it may make your blood boil, the burning of a flag is indistinguishable from those other forms of protected speech.

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Trevor Chase
on October 30, 2017 at 13:34:33 pm

No one has been able to make a non-risible argument that the lncorporation Doctrine is invalid, as it would neuter the 14Am. "It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it." MvM, 5 US at 174.

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Trevor Chase
on October 30, 2017 at 13:39:11 pm

And you would lose that argument. Be prepared to bring a bag to court when you argue it. :)

Whether you find it in the 10Am itself (a right retained by the people), the P/l Clause, or the DP Clause, there is no colorable authority for a State to regulate sexual practices within its borders, as it does not implicate any legitimate powers a State possesses.

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Trevor Chase
on October 30, 2017 at 14:31:12 pm

In paragraph three, you say that Jefferson most effectively summarized the "one and only correct way to interpret the Constitution," and only five paragraphs later, you give us the entirely anti-Jeffersonian assertion that sovereignty "is held by the citizenry as tenants-in-common, and the States and federal government, as their agents, were delegated powers and assigned duties." You thus sub silentio insert the anti-Jeffersonian position of John Marshall (and Randy Barnett) that the Federal Government is a national government, the creature of one American people. It is not going far at all to say that this is the opposite of Jefferson's chief constitutional principle, on which he insisted vehemently from 1774 to 1825 (more likely, his death in 1826, but our latest evidence is from 1825): that the states are sovereign. The Federal Government, then, is federal, not national.

Yes, Blair and Wilson were actual Framers: Blair essentially a cipher in Philadelphia, Wilson defeated on most of the major questions. Yes, the 11A was purely jurisdictional, but its animating principle is that the Constitution is federal and that in claiming jurisdiction over a particular type of case not among the types listed in Article III, because somebody had to have this power, the Court had contravened what Jefferson had in the Cabinet called the underlying principle of the Constitution: that the states parsimoniously gave the Federal Government only a few powers.

"Outcome-based jurisprudence?" Funny that this comes from a law professor--and right after he has missed that I said the same thing about Congress undertaking to grant and the Supreme Court accepting jurisdiction of suits in which a citizen of one state sued another state. The only "outcome-based" argument I'm making is in favor the federal Constitution ratified by the people in 1787-90. Eviscerated the 7Am? Where did I accept that? That you capitalize "GAYS!!!!!" should not distract other readers from the fact that just before this insulation, you had conceded that I had the same position re: what you rightly characterized as a purely jurisdictional matter.

"Sovereign immunity?" Nowhere. But, as I was just reviewing with my undergraduates this morning, John Marshall was right in assuring the Virginia Ratification Convention on June 20, 1788 that a state would not be hauled before the bar of a federal court if the new Constitution were ratified, because no such jurisdiction was among the types Article III either gave the SCUS or gave Congress power to give the SCUS.

Conservative judicial activism? You should Google my name and Carhart and see what you find. Alternatively, see the lengthy sections on Jefferson and Marshall in my Jefferson book, on Madison and McCulloch in my Madison book, or on the Marshall and Taney Courts in my survey of American constitutional history; I've devoted far more effort to blasting right-wing judicial activism than the contrary. You were just knocking me for criticizing the Jay Court, weren't you?

Thanks for "not condescending" in describing the ninth and tenth amendments. Let me not condescend right back: the second paragraph of the Preamble to the Bill of Rights is a resolution; the third is a title; the first, explanatory part says, in full, "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: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

So: the purpose of the first ten amendments is further to clarify limits on federal power. Period. But you, immediately after accusing me of "outcome-based jurisprudence," invoke the Bill of Rights for precisely the opposite purpose: to justify a roving federal veto, exercised by judges no less, of state statutes.

Yes, I'm a scholar of these matters. Whatever you think about what I'm saying, you're 180 degrees out of phase with Jefferson and Madison.

In your paragraph about SSM, you repeatedly refer to "the state," all the while ignoring (I'm generous) the federal principle that Jefferson insisted was the first principle of the Constitution. In short, as I said at the time, my state of Connecticut was perfectly within its constitutional rights to legalize SSM. Besides that, Alabama was perfectly within its rights not to do so. The only way around this distinction is via that case law that has essentially rendered Jefferson's leading constitutional principle a nullity.

Call that what you will: it isn't originalism.

Similarly, whether you or I consider a fetus a person isn't the issue: nothing in the Constitution delegated the states' preexisting power to legislate about such matters to the Federal Government, still less to the federal courts. Make what argument you will for emanations of penumbra or a federal right to define the meaning of life, it isn't originalism--which was my point.

When you sneeringly say, "rights are too precious to be subject to a continual plebiscite," you're not fooling me. I'm in on the game. You really mean "important questions are better decided by Harvard Law/Yale Law types, not hoi polloi." Silly Jefferson: policy-making is for lawyers.

Constitutionalize my personal preferences? After reading your three posts, I'm sure you don't know my personal preferences. It's just that you're so accustomed to discussing these matters with other lawyers that you don't know a non-outcome-based position when you see one.

Plessy? I didn't mention it. A right to racial balance in public-school enrollments was "discovered" not in Brown II (providing a "remedy" for Plessy's segregation) but in Green. That's where the Court moved from banning race-based school assignment (the Brown holding) to requiring it. I'm sure you know that. It seems you've adopted the tactic of accusing me of various thought crimes one after another; thus far, your accusations are groundless.

Fondness for school prayer? I didn't say I wanted school prayer. I said it was constitutional. (It happens my religious minority almost certainly would not want to participate in a local majority's school prayer.) The only ground for banning it is the fallacious Incorporation Doctrine, for which see chapter 11 of Hamburger's Separation of Church and State. (Note: the dog didn't bark.)

Why isn't nude dancing "speech?" When an infant learns to speak, what does he learn to do? Is this a debatable question? Again, you've decided which outcome you prefer, and then you've decided what (inapt) legal label to give it. Any fool knows that public undulation for pay isn't speech. Thus, even granting the Incorporation Doctrine, legislation regarding such matters remains the prerogative of the states.

(Cuba and North Korea? What does that have to do with 1788? I've never argued for a law banning flag burning. Again, though you accused me of advocating an outcome-based jurisprudence, it seems that outcomes are your only concern.)

"Good luck trying to overturn Miranda?" Again, you legal scholars: it's always about the program. Not my monkeys, not my circus.

I have nothing against the Ninth Amendment. In fact, if it covers anything, it covers arrangements I may choose to make with my doctor concerning his provision of services and my payment for same. My quarrel is with the absurd notion, completely contrary to its history, that the Bill of Rights was intended to empower federal judges to censor state statutes.

I'm sure Barnett's position is pretty nearly congruent with yours. It has little to do with Madison's, Jefferson's, or the American Revolution's.

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Kevin Gutzman
on October 30, 2017 at 17:51:15 pm

"there is no colorable authority for a State to regulate sexual practices within its borders, "

You mean states cannot legislate against a 40 year old man having sex with a 10 year old girl, or legislate against males sexually abusing an animal?

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Alan D McIntire
on October 30, 2017 at 18:16:40 pm

Thank you for your detailed response. There is a lot to work with here.

K: "you give us the entirely anti-Jeffersonian assertion that sovereignty “is held by the citizenry as tenants-in-common, and the States and federal government, as their agents, were delegated powers and assigned duties.”

l see COTUS through the lens of agency law. The men who translated the delegates' vision into a document were some of the finest legal scholars of their age, and they drafted it with precision. Justice lredell called COTUS the "great agency." State constitutions were replete with corroborating references (e.g., "That all power is inherent in the people," Pa. Const. of 1790, art. lX, § 2; "The body-politic is formed by a voluntary association of individuals," Mass. Const. of 1780, Preamble, para. 2). The concepts of agency and sub-agency are perhaps the clearest in New Hampshire's constitution: "The people of this state 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, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States of America in congress assembled." N.H. Const. art. 7 (1784).

My understanding of how the Framers thought about sovereignty comes straight from their statements and foundational texts, including Blackstone, see generally, James Pfander, Sovereign Immunity and the Right To Petition: Toward a First Amendment Right To Pursue Judicial Claims Against the Government, 91 Nw. U.L. Rev. 899 (1997) (analyzing Blackstone), and Magna Carta [1215] c. 61, as summarized ably by Justice Story in his Commentaries. The constitutive power rests with the people. Dol, para. 2. What Madison wrote in the Federalist, he owns.

l study Jefferson out of deference to the force of his intellect. But that doesn't mean that he got everything right, or that l am bound by his conclusions. When we try to ascertain the views of the Framers' generation, we don't stop at one or two of the Framers. Participants in the ratifying conventions understood the design of COTUS.

K: "that the states are sovereign."

They were independent political entities. But even their grant of power was conditional: "[W]henever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government." N.H. Const. art. 10. Ergo, as a matter of definition, they cannot be true sovereigns.

What they do have is a grant of limited and revocable sovereignty. And when they entered into the treaty known as COTUS, they made a conditional and revocable grant to the federal government, which was not a "national" government. [Yes, l also maintain that the South had a legal right to secede.] What conservative scholars often seem to forget is that, in ratifying the CWAs, they gave up more of their sovereignty. As such, we can't necessarily reason from what the Framers thought to what COTUS means today.

K: "Blair essentially a cipher in Philadelphia, Wilson defeated on most of the major questions."

They were "in the room," and we don't have reliable records as to what went on lN the room. Suffice it to say that the Committee of Detail knew what the delegates agreed to--your baseless attempts to smear the two notwithstanding. Wilson was one of the preeminent legal minds of his day, and another Framer--Edmund Randolph, our first AG--argued Chisholm on behalf of the plaintiff.

K: "Yes, the 11A was purely jurisdictional, but its animating principle is that the Constitution is federal and that in claiming jurisdiction over a particular type of case not among the types listed in Article III"

When in doubt, read the Constitution. ln pertinent part, section 2 of Article lll provides:

"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."

As the bold-typed text shows, the Court had original jurisdiction in Chisholm. Most certainly, it was not "a particular type of case not among the types listed in Article III." And therein lay the problem: The States did not want the feds to exercise jurisdiction--because they were deadbeats. (My surmise is that the language was inserted to ensure compliance with the Treaty of Paris, but that is beside the point.)

As for the "animating principle" alleged, please see John Paul Stevens, “Two Questions About Justice,” 2003 lll. L. Rev. 821, which contains a detailed historical analysis of the subject. Suffice it to say that it is in sharp counterpoise to your position.

K: "John Marshall was right in assuring the Virginia Ratification Convention on June 20, 1788 that a state would not be hauled before the bar of a federal court if the new Constitution were ratified..."

l suspect that you meant Madison, 3 Elliot's at 533, and as a matter of constitutional design, that isn't exactly true. Madison's assurances do not carry the force of law; the text does.

COTUS says what it says, and it said that a State could be hauled before the bar of SCOTUS. And whether you like it or not, the 14Am expressly provides that no State "shall . . . 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." Just as the 5Am takings clause (Jacobs) and 4Am S/S clause (Bivens) creates both a remedy and jurisdiction, the 14Am necessarily implies a cause of action and State consent, which would even satisfy Mr. Madison! To hold otherwise would be creating a right without a remedy--a logical impossibility. Ashby v. White.

[2b continued]

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Trevor Chase
on October 30, 2017 at 18:47:05 pm

"...protecting flag-burning, gay rights and same-sex marriage, and continuing the scourge of abortion,..."

It's odd that a site called "libertlawsite.org" would view negatively such obvious expressions of liberty as to burn a hunk of cloth, enjoy a same-sex relationship, and, for pregnant women, deciding the course of their own pregnancies. It's this sort of neo-con hypocrisy that drove me out of the Republican Party. The attitude that "freedom is great--as long as we approve of how you exercise it" isn't freedom at all.

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Henry Miller
on October 30, 2017 at 18:59:16 pm

Neocon? I'm a Jeffersonian.

The site is called "Law and Liberty." The idea that Thomas Jefferson's understanding of the Constitution had a little to do with the latter, as of the former, is perfectly consistent with that. In fact, I'd argue, as Jefferson did, that having federal judges hand down arbitrary diktats, whatever their immediate policy implications, was contrary to liberty--which is first about republicanism.

You did see the photo of Robert Bork at the top of the piece, right? His stated position about constitutional interpretation was nearly identical to mine.

The chief distinction underscored by this exchange is between those whose first priority is republicanism and those who would be just as happy to have Anthony Kennedy make all the decisions, so long as they agreed with them.

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Kevin Gutzman
on October 30, 2017 at 20:10:42 pm

I'm not altogether sure what to make of a man who advocated a little rebellion now and then, every generation. Jefferson seems to have favoured a kind of philosophical anarchy, though he seems to have reluctantly acknowledged that the condition of anarchy "is not the best." So, in my more idealistic moments, I agree with you--I like "Jeffersonianism". Unfortunately, shortly thereafter, realism usually sets in.

Being perfectly aware that law and liberty are often at odds, I will almost always favour the latter over the former when it's not utterly unreasonable to do so. By the same token, I favour the freedom of people to burn flags, engage in any sort of consensual relationship that pleases them, and do as they please with their own bodies. While "neo-con" is something of a slippery term, I suspect that it's generally applicable to those who disagree me on those points.

And there's at least one additional option beyond republicanism and ceding all discretion to Justice Kennedy: individualism. Republicanism, it seems to me, implies that individual freedom may properly be granted or withheld at the arbitrary discretion of "the republic." This, I suspect you're aware, was precisely the objection of many to the lack of a "Bill of Rights" in the Constitution of 1787.

So, while I can't realistically be a Jeffersonian, and find pure republicanism to offer too little protection for freedom, I'm an individualist.

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Henry Miller
on October 30, 2017 at 20:12:38 pm

[2 of 2]

Preambles aren't law. At best, they qualify as legislative history and even then, they cannot be divorced from historical context. Bill of Rights [1688] 1 W.&.M. Sess. 2, c. 2, was a mere civil statute, which could have been repealed at any time, and no statute at all provides even less protection. (Case in point: the right to possess a gun in Australia, which has no written BoR.)

There is precious little in the BoR as proposed that speaks to protecting States. All that was said was that the powers not delegated were retained by either the people or the States; in effect, whatever deal the people of a given State carved out was (mostly) none of the feds' business. This "Chinese wall" was respected in Barron, but was torn down by the CWAs.

K: "I’ve devoted far more effort to blasting right-wing judicial activism than the contrary."

The RW activism l speak of is of recent vintage. Specifically, the relentless diminution of the right to a proper 7Am jury trial and the radical expansion of sovereign and official immunity are at the top of the list. Only the Barnetts and Solums seem to have a problem with it; conservative outrage appears strictly outcome-driven.

K: "But you, immediately after accusing me of “outcome-based jurisprudence,” invoke the Bill of Rights for precisely the opposite purpose: to justify a roving federal veto, exercised by judges no less, of state statutes."

Again,we return to Bork, and the balance between individual rights and the tyranny of the majority. The 9Am equates enumerated and unenumerated rights. You seem to think that we have no rights, and that the States can invade any and all of our rights by passage of a mere statute. Did the Framers of the CWAs intend that? What Madison thought is irrelevant, because our COTUS is not their COTUS.

K: "Besides that, Alabama was perfectly within its rights not to [recognize SSM]. "

ln your opinion. And therein lies the rub. First and foremost, "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Art. lV, § 1. New Mexico does not recognize CL marriages. Colorado does. Whenever a Colorado couple crosses Raton Pass on the way to Albuquerque, do they cease to be married? At bare minimum (and once the camel's nose gets in the tent, the whole camel comes in), Alabama is stuck having to recognize CT's SSMs.

Also, after the CWAs, Alabama may not "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." As l recall the cases in the SSM battle, a coherent argument couldn't be made for treating SS and OS couples differently (and Judge Posner's oral argument was especially brutal). Like it or not, the COTUS has imposed significant limitations on Alabama's freedom to act.

That isn't judicial activism. lt is originalism. Originalism does not mean that COTUS was trapped in amber in 1791.

K: "The only way around this distinction is via that case law that has essentially rendered Jefferson’s leading constitutional principle a nullity."

That is potty nonsense, for the reasons stated above. The COTUS we have today is not the one Jefferson had in his, but his stated principle that the text governs is as solid as it was in 1791.

K: nothing in the Constitution delegated the states’ preexisting power to legislate about such matters to the Federal Government, still less to the federal courts."

To be precise, the CWAs severely limited the States' ability to legislate in that area. "No state shall" means no state shall.

K: "Make what argument you will for emanations of penumbra or a federal right to define the meaning of life, it isn’t originalism"

lt actually is, your passionate denials notwithstanding. As illustrated earlier in the legislative history of the 9/10 Am, natural rights are retained unless and until ceded, and even the Alabama constitution recognizes the State's inability to impair unenumerated rights: "That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate." Ala. Const. art. l. § 36.

K: "I’m in on the game. You really mean “important questions are better decided by Harvard Law/Yale Law types, not hoi polloi.”

LOL! Now, who is being unduly presumptuous? Quite to the contrary, l don't want King John l of Roberts and his ignoble "Court" deciding which rights are worthy of Their Royal Highnesses' protection, and which do not. As l have demonstrated, the rule l advocate is relatively simple to apply, and removes as much discretion as possible from our "betters" at Ah-vahd. And yes, l do mean what l say: rights are too precious to be left to the tender mercies of the mob.

K: "It seems you’ve adopted the tactic of accusing me of various thought crimes one after another"

You were the one complaining that these were activist decisions--a position that no reasonable person could scope out without taking some highly suspect foundational positions. The apparent flaw in your position was the claim that the lncorporation Doctrine was void--which renders the 14Am a nullity. That makes no sense, and does violence to Rep. Bingham's vision. Talk about constitutional eisegesis!

K: "Any fool knows that public undulation for pay isn’t speech."

Why? How is it any different from posing for a nude painting? l'm not a habitue of such establishments, but l may not associate with fools as often as you do. The threshold for what is speech is fairly low. "Who's Nailin' Palin" may not have a great deal of artistic merit, but the potential to make fun of a noxious public figure can give the product plenty of satirical value. :)

K: "My quarrel is with the absurd notion, completely contrary to its history, that the Bill of Rights was intended to empower federal judges to censor state statutes."

ln a world without the CWAs, you'd have a winning argument, as that was the original intent. But the 14Am changed the game, and the originalist exegete must account for that change.

l'm sorry that you took my comments personally.

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Trevor Chase
on October 30, 2017 at 20:15:32 pm

l should have added "between consenting adults." My bad.

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Trevor Chase
on October 30, 2017 at 20:40:04 pm

Bork was so far from the mainstream, even the cacti didn't visit.

l invoke Scalia's reality check: Would any sane person agree to this? Giving individual States the power over me that Kevin would grant would be a deal-killer ... and Jefferson would have a problem with that, as well.

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Trevor Chase
on October 30, 2017 at 21:23:01 pm

I strongly suspect that the author of the Virginia Resolution and the Declaration of Independence would be far more willing to trust a state before he'd trust what was called in his era a "consolidated" government. And you can always pack up and leave a state--it's tougher to leave the country. I've no idea how Mr Gutzman feels about the issue.

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Henry Miller
on October 31, 2017 at 07:58:50 am

Another qualifier you should have added, "Between consenting adults who are legally competent".
You keep having to make up additional qualifiers for your
", ..there is no colorable authority for a State to regulate sexual practices within its borders."

If a state has the authority to regulate and license those who give haircuts, who drive cabs, florists, tree trimmers, locksmiths, - licenses are required in California, they certainly can regulate sexual activity to a certain extent.

Again, I'd apply the under utilized 9th and 10th amendments in this case.

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Alan D McIntire
on November 09, 2017 at 10:40:43 am

At the end of the day, COTUS was your classic “good deal”: nobody really got what they wanted....

No I didn't.

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nobody.really
on September 02, 2018 at 18:15:10 pm

Mea culpa. It has been pointed out to me that Robert Bork signed an amicus brief in favor of the respondent in Heller, placing him on the side of individual rights under the Second Amendment. https://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_07_08_07_290_RespondentAmCuFmrDOJSnrOfficials.authcheckdam.pdf

So no speculation is necessary regarding how he would have voted, had he been confirmed in 1987.

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Mark Pulliam

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FRIEDRICH VON HAYEK 1981 Austrian economics and political philosopher in Gothenburg

Was Hayek an Originalist?

Hayek was an originalist of a certain sort, one who favored an original meaning based on the words of the Constitution and the enactors' intent.

Introducing Myself

As an academic, I have worked in various fields, but my dominant passion has been the libertarian pursuit of free markets and freedom under the law. In recent years, I have focused mainly on constitutional originalism. At the University of San Diego, I am the Director of the Center for the Study of Constitutionalism and have a book coming out next year from Harvard, Originalism and the Good Constitution (co-authored with John McGinnis), which presents a new defense of originalism.