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Friday, November 27, 2009

NYT: Court Upholds Willets Point Redevelopment Plan

Farewell my ol’ pal Izzy and his pet rat.

A federal judge on Wednesday upheld New York’s $3 billion redevelopment plan for Willets Point, an industrial section of Queens dominated by car-repair shops and waste-management businesses, finding that although the city had neglected the neighborhood’s infrastructure for decades, the constitutional rights of the businesses there — many of which will be forced to relocate under the plan — were not violated.

The plaintiffs, who organized themselves into an entity called the Willets Point Industry and Realty Association, and who “have established thriving businesses (notwithstanding the grossly inadequate infrastructure of the area)” and employ hundreds of people, “are understandably aggrieved by the fact that the plan that the city is in the process of implementing has no place for them,” the judge, Edward R. Korman of Federal District Court in Brooklyn, wrote. However, he ruled, it was not the place of federal judges to intervene in the dispute.

...Mayor Michael R. Bloomberg’s redevelopment plan was approved by the City Council, 42 to 2, last November. It calls for new sanitary and stormwater sewers, more power lines and new roadways and bicycle lanes. It also seeks new mixed-use development — including, possibly, a hotel and convention center — but envisions sweeping away the current industrial uses through eminent domain.

Judge Korman expressed sympathy for the plaintiffs whose property would be acquired by the government (with compensation) but found that they lacked a federal claim. “The timing of this lawsuit as well as plaintiffs’ own admissions at oral argument suggests,” he wrote, that the “real purpose of their lawsuit is to obstruct and forestall the implementation of the approved plan.”

Repoz Posted: November 27, 2009 at 01:28 AM | 215 comment(s) Login to Bookmark
  Tags: business, mets

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   101. ?Donde esta Dagoberto Campaneris? Posted: November 29, 2009 at 04:32 AM (#3398401)
Also, Tripon, in the context of the 18th century, the militia meant every adult male

Save for the age limits, that is still the case. Stolen from the wiki...

The organized militia, created by the Militia Act of 1903, which split from the 1792 Uniform Militia forces, and consists of State militia forces, notably the National Guard and the Naval Militia. The National Guard however, is not to be confused with the National Guard of the United States, which is a federally recognized reserve military force, although the two are linked.

The reserve militia or unorganized militia, also created by the Militia Act of 1903, presently consists of every able-bodied man of at least 17 and under 45 years of age who are not members of the National Guard or Naval Militia. (that is, anyone who would be eligible for a draft)
   102. akrasian Posted: November 29, 2009 at 04:32 AM (#3398402)
If you don't follow original intent, all you have left is the Constitution means what the people in power want it mean.

Well, again - Original Intent needs to be the conclusion of the argument, not the starting point. It is just false that there was one intent on much of the Constitution. And it is also the case that there are many situations that the Founding Fathers just didn't anticipate, even if they did have clear opinions on other situations. Before you can coherently argue Original Intent you need to show that there was such an intent, and it was unambiguous. Very difficult, as it should be. Normally, Constitutional analysis should be based on the history of Federal Court and Supreme Court rulings - using Original Intent as a means to support your position without a full discussion shows a misunderstanding of the original Constitutional process, which was not clear cut, and which was in places left intentionally ambiguous to allow the passage of the Constitution in the first place.
   103. Tripon Posted: November 29, 2009 at 04:33 AM (#3398403)
If you want to go down that route, then yes, there is 'no constitutional protection.' Which is why people were still discriminated against despite the passage of the 14th amendment, why police officers were able to ignore the 4th, 5th, and 6th amendment until fairly recently in history against potential suspects, and why D.C. had a handgun ban for decades before it was finally overturned.

The constitution doesn't protect the constitution, people do. Its a document that doesn't have any innate power to protect itself from people who would abuse it like say Excalibur would. It takes people who agree to uphold the document even when it doesn't suit their needs that gives it the resolutions and standing that it does today.
   104. ?Donde esta Dagoberto Campaneris? Posted: November 29, 2009 at 04:44 AM (#3398404)
Of course the answer is that nobody would try to bring back slavery in the first place because nobody is that ####### crazy.

I have no cites for you but I would bet any amount of money that the framers felt the same way about the state taking your property and giving it to someone else for private use. The problem is that no matter what rules you set up, they require the government to proceed in good-faith. When the government starts enacting grotesque policy, and then laughs and says, well the Constitution doesn't specifically say we can't- the law is of very limited value.
   105. Rich Rifkin Posted: November 29, 2009 at 04:47 AM (#3398405)
(Please note: I will rejoin this discussion when it gets to post #1284.)
   106. Langer Monk Posted: November 29, 2009 at 05:00 AM (#3398410)
I'm not sure what you're trying to say here. if you're saying that a state needs the federal constitution to affirmatively give it a power, you're wrong. If you're saying that certain state constitutions don't permit the sort of takings we're talking about here, I don't have a view of that, it isn't what was at issue in Kelo, and it has nothing to do with whether or not there is a textual constitutional argument that New Haven (or NYC) lacks this power.


The State Government has the powers the State Constitution gives it.

You started this part of the conversation by saying what prevents a government from taking private property for private use with just compensation (55). Both the US and NY constitutions only permit takings for public use. There is no textual constitutional argument that any local, state or federal government, as allowed in the US nor NY Constitutions (since we're talking about NY in this instance), has the power to take private property for private use with just compensation.

We can disagree as to what constitutes public use, but if your position is that the government has, or might have, the power to take private property for private use with compensation, then we might as well be speaking two different languages.
   107. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 05:07 AM (#3398412)
[106] I agree that we might be speaking different languages - all I have said is that there is no prohibition in the text of the federal constitution on a state government taking property for private use with compensation (again, putting aside the issue of whether fighting blight is a public purpose). You have pointed at nothing that contradicts that, nor could you.

I don't know how many times I can repeat that I have no opinion on what the NY constitution does or does not empower the state and local governments in that state to do.
   108. ?Donde esta Dagoberto Campaneris? Posted: November 29, 2009 at 05:21 AM (#3398420)
all I have said is that there is no prohibition in the text of the federal constitution on a state government taking property for private use with compensation

This represents a fundamental misunderstanding of the Constitution. The Constitution details the limited powers that the federal government actually has- if it doesn't say they can do it, they can't. Not the reverse.

As a practical matter, this ceases to function reasonably once you incorporate (apply the Const. to the states as in this matter) because they have a very different power than the Federal government. Nevertheless, the idea that because the Constitution doesn't specifically prohibit something, it's OK- is wrong. For example, the Constitution doesn't prevent the Fed from chopping off your arms and giving them to someone else- that doesn't mean the Fed has that power.
   109. Langer Monk Posted: November 29, 2009 at 05:24 AM (#3398421)
[106] I agree that we might be speaking different languages - all I have said is that there is no prohibition in the text of the federal constitution on a state government taking property for private use with compensation (again, putting aside the issue of whether fighting blight is a public purpose). You have pointed at nothing that contradicts that, nor could you.

I don't know how many times I can repeat that I have no opinion on what the NY constitution does or does not empower the state and local governments in that state to do.


5th Amendment, 10th Amendment, 14th Amendment.
   110. Lassus Posted: November 29, 2009 at 07:04 AM (#3398445)
Lassus, you know how hard it is to pass something approaching anything remotely by that by both houses of Congress, survive a veto from the president, then passed again by a super majority of Congress, then survive judicial review. Of course the answer is that nobody would try to bring back slavery in the first place because nobody is that ####### crazy.


Wait, what? I wasn't even in this thread! I didn't do anything! I wasn't there! She said she was 18! I, I....

Seriously, how the heck did I get involved, Tripon? :-)
   111. David Nieporent (now, with children) Posted: November 29, 2009 at 07:24 AM (#3398452)
All it says is that property shall not "be taken for public use, without just compensation".

Let's set aside for the moment the argument that the legislature, not the courts, should determine what constitutes a valid public use, though that argument is powerful.
It's not at all powerful. For what other constitutional right does the judiciary defer to the other branches of government as to whether a particular governmental action is justified? Before a government can enact restrictions on speech, for instance, there must be a compelling government interest in these restrictions and the law must be narrowly tailored. Do the courts allow the legislature to decide whether there's a compelling government interest in a particular restriction? If a LEO searches a home without a warrant under the exigent circumstances doctrine, do the courts allow the LEO to determine whether there were exigent circumstances? For that matter, in a takings case, do the courts allow the legislature or executive to decide what compensation is "just"? So why would the legislature be given carte blanche to decide whether a particular taking is a public use?
Where does it say property shall not be taken for private use with just compensation?

There is no textualist argument that private property cannot be taken by the government, with due process of law.
The takings clause explicitly says, as you note, that private property shall not be taken for public use without just compensation; it doesn't explicitly say what happens if the taking is not for public use. There are three possibilities:

1) That private property can be constitutionally taken for private use without just compensation (or any compensation at all, for that matter).
2) That private property can constitutionally be taken for private use with just compensation.
3) That, by negative implication, private property cannot constitutionally be taken for private use.

The first would result in an absurdity. The second would render the phrase "for public use" mere surplusage. Only the third is a reasonable interpretation. It's not textually compelled, to be sure, but it makes sense in a way that the others don't.
   112. David Nieporent (now, with children) Posted: November 29, 2009 at 07:35 AM (#3398455)
Wow - a lot of name calling directed at me, merely for having the temerity to note that the text of the Constitution doesn't proscribe what New Haven did in Kelo.
I should note that nobody, including the Supreme Court majority and the city of New London (not New Haven), made the argument you made. They did not argue that the Constitution doesn't place limitations on takings for private use; rather, they argued that there was a public benefit from this taking, and that public benefit is close enough to public use to satisfy the constitution. (They also argued for a deferential standard for determining whether there would be, in fact, a public benefit.) The majority absolutely agreed that the constitution forbid takings purely for private gain.

("Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation.")

("As for the first proposition, the City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U.S., at 245 (“A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void”); Missouri Pacific R. Co. v. Nebraska, 164 U.S. 403 (1896).5 Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.")
   113. Tripon Posted: November 29, 2009 at 07:36 AM (#3398456)

Wait, what? I wasn't even in this thread! I didn't do anything! I wasn't there! She said she was 18! I, I....

Seriously, how the heck did I get involved, Tripon? :-)


Uh, oops! :)
   114. David Nieporent (now, with children) Posted: November 29, 2009 at 07:50 AM (#3398457)
79 -- Being that I'm not a lawyer (and not an expert on the Constitution), take my arguments with a grain of salt. I'm also probably guilty of using original intent inconsistently. (I'm not a dogmatist along the lines of libertarians.)
Rich, one important point of clarification: when people first formulated a theory of originalism, they talked about "original intent," but the flaws in that quickly became apparent; all originalists now talk about original understanding, not original "intent." (For the purposes of this particular discussion here, the difference isn't so important, but I thought you should get your terminology clear.)

----

This may be persuasive to people who believe that the original intent should control (although even so I'm not sure I follow), but it is not likely to be persuasive to somebody who doesn't accept that premise (which is the problem with all arguments based on original intent).
Well, obviously, but since any other position is intellectually incoherent, what are you going to do? If a law doesn't mean what it means, then there's no point in passing it at all. That doesn't mean that there can't be honest disputes about what a particular provision means or how to apply it to a situation that wasn't around when the law was written; there can be. But there can't be an honest dispute about whether to care about what the provision means. The whole purpose of writing down a constitution with specific rules is to require the government to abide by those rules; if the government can redefine what the rules are, then the constitution serves no function. You might as well write down, "The government can do whatever judges think it should be able to do, and can't do whatever judges think it shouldn't be able to do." It would save a lot of words and accomplish the same result as a non-originalist interpretive approach. It's Calvinball.
   115. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 04:33 PM (#3398546)
This represents a fundamental misunderstanding of the Constitution. The Constitution details the limited powers that the federal government actually has- if it doesn't say they can do it, they can't. Not the reverse.



We're talking about actions of state and local governments, not the federal government. The fundamental misunderstanding is yours.


5th Amendment, 10th Amendment, 14th Amendment.


Reread them - it isn't in there.
   116. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 04:35 PM (#3398548)
Well, obviously, but since any other position is intellectually incoherent, what are you going to do?


And yet only a small minority of judges agree with you. How odd. Or you're wrong about the coherence of worldviews other than originalism.
   117. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 04:37 PM (#3398550)
But there can't be an honest dispute about whether to care about what the provision means.


That's a straw man - we're talking about whether in interpreting a provision, something called the "original intent" should control or whether we can use other methods of interpretation.
   118. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 04:38 PM (#3398551)
It's not at all powerful. For what other constitutional right does the judiciary defer to the other branches of government as to whether a particular governmental action is justified?


Commerce Clause and Equal Protection Clause to name two - of the very most important provisions in the Constitution.
   119. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 04:40 PM (#3398552)
1) That private property can be constitutionally taken for private use without just compensation (or any compensation at all, for that matter).
2) That private property can constitutionally be taken for private use with just compensation.
3) That, by negative implication, private property cannot constitutionally be taken for private use.

The first would result in an absurdity. The second would render the phrase "for public use" mere surplusage. Only the third is a reasonable interpretation. It's not textually compelled, to be sure, but it makes sense in a way that the others don't.


No, the second would mean that the framers didn't contemplate a particular dispute that would arise in the future - as they didn't contemplate many of the disputes that would arise in the future. Again, not to mention that powerful argument that elected officials should be vested with the responsibility to determine what constitutes a valid public use.
   120. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 04:42 PM (#3398555)
The whole purpose of writing down a constitution with specific rules is to require the government to abide by those rules; if the government can redefine what the rules are, then the constitution serves no function.


I repeat - in situations where the text is clear, what is the relevance of how the framers would have resolved a particular dispute?
   121. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 04:53 PM (#3398563)
One more point - there's a lot of conceptual inclarity in this thread as between textualism (or "plain meaning") and originalism (or the intent of the framers, etc.). They are not the same.

Textualism looks at the words of the documents themselves and, assuming there is no ambiguity, resolves a dispute by reference to the plain meaning of those words. Obviously opinions often vary as to the plain meaning.

Originalism attempts to discern how the framers of the Constitution would have understood a given constitutional provision, and then to resolve the given dispute as they would have understood the constitution to apply.

These concepts are related, obviously - many judges use both, i.e., looking to original intent to inform their determination of the text's "plain meaning". But they are not identical.

For example, the second amendment says something to the effect that the right to bear arms shall not be restricted. The plain meaning of that passage might lead somebody to conclude that Congress lacks the power to restrict my right to bear nuclear arms, tanks, or missiles. More commonly, however, "strict constructionists" look to the intent of the founders -- their understanding of what "arms" included -- to limit that limitation on congressional power.

So to say that to disagree with originalism is to flout the very purpose of having a written constitution is not correct. We simply disagree as to the relevance of "the framers'" views on a particular subject in interpreting the text.

That is not to say that there aren't serious questions about whether people in 2009 ought to be bound by laws that they didn't vote on in 1789. But judges take an oath to uphold the document, and in my view that means they should do so.
   122. Gaelan Posted: November 29, 2009 at 04:53 PM (#3398564)
That's a straw man - we're talking about whether in interpreting a provision, something called the "original intent" should control or whether we can use other methods of interpretation.


Honest question. Could someone lay out the various alternatives of legal hermeneutics*. David lays out a compelling case (and we never agree). If their are coherent alternatives I'd like to hear about them.

*As a political philosopherhermeneutics is one of my favourite subjects. Anyone want to argue in favour of Skinner's historicicism? Now that is a incoherent. I favour Gadamer.
   123. snapper (history's 42nd greatest monster) Posted: November 29, 2009 at 05:08 PM (#3398571)
We're talking about actions of state and local governments, not the federal government. The fundamental misunderstanding is yours.

Hasn't the 14th Amendment been construed as applying the Bill of Rights to the states?

I'm pretty sure it has, otherwise the whole Civil Rights movement could never have happened.
   124. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 05:10 PM (#3398573)

Hasn't the 14th Amendment been construed as applying the Bill of Rights to the states?

I'm pretty sure it has, otherwise the whole Civil Rights movement could never have happened.


Not sure what you're getting at here. The debate was over whether the constitution contains any textual prohibition on what New Haven did -- or more specifically, whether the Court's decision in Kelo and other cases means that it has been "ignoring the text" of the 5th amendment for 55 years.

I don't disagree that most (though not all) of the bill of rights has been incorporated against the states (though that is neither a textualist nor originalist approach to constitutional adjudication).
   125. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 05:18 PM (#3398578)
Out of curiosity - those arguing with me, do you consider yourselves political conservatives, liberals, Democrats, Republicans, none of the above?

I'm asking because I think it's quite clear that the "right" has overwhelmingly won the rhetorical battle over the proper approach to judging. So much so that, for example, the Sotomayor confirmation hearings, before a senate controlled by Democrats, amounted to a charade by which the Judge appeared to be trying to convince them that she would act like a Republican justice.
   126. Langer Monk Posted: November 29, 2009 at 05:28 PM (#3398586)
5th: "nor shall private property be taken for public use, without just compensation."

10th: "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." (Should throw in the 9th as well: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.")

14th: Section A, second sentence: "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."

You seem to concede that the Federal Gov't can't take private property for private use. If not, you may very well be alone. Likewise, the 14th applies that to the States. This may very well be the most settled of Constitutional law in the US. For eminent domain, there's a 1897 case that states the 14th Amendment binds the States to the 'just compensation' clause in the 5th Amendment.

Your argument utterly ignores all context and all principles of Constitutional law that David and others have laid out. No, it doesn't specifically have the phrasing: The State or Local Government can't take private property for private use. That's why the 9th and 10th exist. Constitutions give powers to the Government. Silence on a particular issue doesn't mean the Government gets that power, it means the People have it.

You also want to ignore what State Constitutions say, for some reason. I haven't read every of the 50 documents, (and I'm not about to, not today), but I'd be shocked if one did not have the same or similar due process language as found in the 5th Amendment. I'm beginning to believe that you are being deliberately obtuse.
   127. Langer Monk Posted: November 29, 2009 at 05:39 PM (#3398591)
[125] Not sure that it matters, but I'm a liberal born in Jersey. I'm also a lawyer. The Constitution is the Supreme Law of the Land. If you want a law passed that isn't allowed (for lack of a better term at the moment) by the Constitution, then you'd better amend it first to let you pass that law. I think the power of the Federal Government has expanded beyond what is enumerated in the Constitution, even in areas where I agree with the results.
   128. David Nieporent (now, with children) Posted: November 29, 2009 at 06:01 PM (#3398608)
I'm asking because I think it's quite clear that the "right" has overwhelmingly won the rhetorical battle over the proper approach to judging. So much so that, for example, the Sotomayor confirmation hearings, before a senate controlled by Democrats, amounted to a charade by which the Judge appeared to be trying to convince them that she would act like a Republican justice.
Absolutely, because the "proper approach" is so obvious. As either Ilya Somin or Randy Barnett (I forget which) wrote in response to the Heller decision: "we're all originalists now." Different justices came to different conclusions about what the second amendment meant, but not one of them said, "You know what? I don't care what the history is. Gun control is now an important and necessary part of society, and it should be allowed regardless of what the constitution meant at one time."

(Yes, of course "all" is an exaggeration; there are some holdouts. But as you yourself note wrt Sotomayor, they're not publicly respectable anymore. Judges have to claim fidelity to originalism, because why would anybody empower a random person to decide what laws should mean, rather than what they do mean?)

EDIT: to answer your underlying question --
Out of curiosity - those arguing with me, do you consider yourselves political conservatives, liberals, Democrats, Republicans, none of the above?
Libertarian, of course. (That is, it's "of course" because it's well-known here to most, not because it's obvious from my posts in this thread.)


Also, you write:
That is not to say that there aren't serious questions about whether people in 2009 ought to be bound by laws that they didn't vote on in 1789. But judges take an oath to uphold the document, and in my view that means they should do so.
Exactly. The "serious questions" are questions about whether to have/care about a constitution at all, not how to interpret it.
   129. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 06:19 PM (#3398616)
[126] I'm not going to be baited into debating you on the dozen or so arguments you're raising. None of them address the narrow point I made - which is that there is no textual prohibition in the federal constitution against taking private property for private use, with just compensation. The last 75 comments or so prove that this is beyond debate.

I have not argued that other principles of adjudication could not reasonably have reached a result opposite to that in Kelo.

I have not argued that state constitutions would not prevent some or all states from takings of this nature.

You also want to ignore what State Constitutions say, for some reason.


The reason is that I have no knowledge about what any state constitution says on this subject. That doesn't seem to prevent others from opining in this thread on various topics, but it restrains me. If I were a judge and the case before me required me to interpret a state constitution, I would look to that document and other authoritative sources and rule accordingly.
   130. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 06:24 PM (#3398622)
because why would anybody empower a random person to decide what laws should mean, rather than what they do mean?


But this ignores the point I have made over and over again - it can't be that originalism is correct because it is desirable because if in any given controversy the result it required was undesirable, the mode of interpretation would fail. Originalism can only be justified if there is some reason why the intentions of the framers et al. are binding apart from the fact that people like it -- otherwise we are exactly where you insist that we should not be, with judges doing what makes them happy rather than what the law requires.

The fact that "original intent" or "plain meaning" appeals to people with little or no background in the law is also not persuasive to me.

Indeed, as I have said all along, the basic failing of originalism is that it cannot persuade people who don't already believe in originalism.

Not to mention that, as another poster has said to deaf ears, it is generally a myth that the original intent of "the framers" can adequately be determined as to many, most, or any modern controversies.
   131. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 06:29 PM (#3398629)
There is a poster on this site who is much more articulate than I am on this subject. I wish he were here instead of, presumably, spending the last of Thanksgiving weekend with loved ones instead of with you guys!!
   132. David Nieporent (now, with children) Posted: November 29, 2009 at 06:43 PM (#3398635)
No, the second would mean that the framers didn't contemplate a particular dispute that would arise in the future - as they didn't contemplate many of the disputes that would arise in the future. Again, not to mention that powerful argument that elected officials should be vested with the responsibility to determine what constitutes a valid public use.
No; if they didn't contemplate that the particular dispute would arise, then the words "for public use" would also be superfluous. One only uses a qualifier if one realizes that one's rules don't apply to all situations. IOW, if you never contemplated that there might be a taking for private use, you'd just write, "Private property shall not be taken without just compensation." By inserting "for public use," you're acknowledging that you realize that there are other kinds of takings.

Commerce Clause and Equal Protection Clause to name two - of the very most important provisions in the Constitution.
Post New Deal commerce clause jurisprudence is an abomination, to be sure, but courts do not at all do what you suggest: allow the legislature to determine, without judicial review, what constitutes interstate commerce (or, what "affects" interstate commerce, since that's the test the courts now apply). As for equal protection, I'm afraid I'm not even sure what you mean. Yes, in non-race/sex contexts, the courts almost always apply rational basis review, which is highly deferential -- but they still don't let the legislatures decide whether two parties are being treated equally. The equivalent to Takings jurisprudence would be for a court to say, "The legislature has decided that the policy being challenged treats everyone equally, and we decline to review that decision." But no court says that, not even on the loosest rational basis review.

I repeat - in situations where the text is clear, what is the relevance of how the framers would have resolved a particular dispute?
Originalism is not a question of "how the framers would have resolved a particular dispute." Originalism is a question of how the framers <u>did</u> resolve a particular dispute. Which is why, "where the text is clear," we've already answered that question about the framers. (Jack Balkin attempts to draw a distinction between original meaning and original expected application; there's a sense in which I agree with that distinction, but since his brand of originalism somehow gets him to Roe v. Wade, no originalist takes his claim to be an originalist seriously.)

More commonly, however, "strict constructionists" look to the intent of the founders -- their understanding of what "arms" included -- to limit that limitation on congressional power.
Now you're being conceptually unclear; "strict constructionism" and "originalism" are not the same thing at all. (Quoting Scalia: "Textualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be—though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.")
   133. tshipman Posted: November 29, 2009 at 06:43 PM (#3398637)
The chief problem with original understanding is that it fails to take into account circumstances where the founding fathers are just plain wrong. The reason why so many liberals hate the doctrine of original understanding is that it yokes us to the mores and values of 1789. Like it or not, those values and mores have changed.

Arguments need to be grounded in the text, but "original understanding" is just as much a bullshit dump as "penumbras".

I hate the decision in Roe v. Wade, because I wanted it to be grounded in the 9th, or in the 14th, rather than this stupid doctrine of penumbras that has poisoned the well.

How do we interpret "original understanding" with respect to intellectual property law?
How do we interpret "original understanding" with respect to equal protection?
How do we interpret "original understanding" with respect to the death penalty?

If, in 40 years, a supermajority of Americans decide they no longer want the death penalty, does that mean that we still have to have it, just because in 1789 they didn't mind it? Scalia's still waiting for the case, mind you.

Original Understanding is a BS dump that allows conservatives to claim the moral high ground. Kelo was a bad decision because it was a bad decision, not because of a breakdown of process.
   134. ?Donde esta Dagoberto Campaneris? Posted: November 29, 2009 at 06:46 PM (#3398638)
We're talking about actions of state and local governments, not the federal government. The fundamental misunderstanding is yours.

We were talking about the text of the document, the foundation of which you have a poor understanding. My post concedes that we're also talking about state gov's- that does not change the structure, nor the text, of the document.

Moreover, you still can't reasonably address [111]. Your response does not do so. David's 2nd point regarding your preferred reading is accurate, your reading of the relevant language renders the term "public use" inoperative. Which, in a stunning coincidence, is exactly what was needed to allow for Kelo.

No, the second would mean that the framers didn't contemplate a particular dispute that would arise in the future - as they didn't contemplate many of the disputes that would arise in the future

Are you suggesting that the Framers didn't contemplate a scenario where a sovereign might relieve them of their property and convey it to another? Are you sure on this point? I recall their being extensive discussion on this precise issue- are you claiming that no such discussions took place? This isn't a failure to contemplate- the urge to steal people's property (and have the sovereign aid your endeavors) is as old as property itself. The issue was considered at the time and what was ratified was a tiny grant of power such that the federal government could take private property, but only for public use, and only if just compensation was paid. Only that ability was granted- nothing besides. The text makes this remarkably clear.

Once again, your perspective is exactly backwards. The Constitution was a narrow grant of power to a federal government. Arguing that because the Constitution doesn't say we cant do X, means we can do it- represents a fundamental misunderstanding of the document. In short, the Constitution isn't a list of things the government can't do (though there is such a list within it) it's a list of the very few things it can do. If something doesn't show up on that list, the text does not allow it.
   135. Langer Monk Posted: November 29, 2009 at 06:52 PM (#3398641)
None of them address the narrow point I made - which is that there is no textual prohibition in the federal constitution against taking private property for private use, with just compensation. The last 75 comments or so prove that this is beyond debate.


This is just astonishing.
   136. ?Donde esta Dagoberto Campaneris? Posted: November 29, 2009 at 06:56 PM (#3398645)
The chief problem with original understanding is that it fails to take into account circumstances where the founding fathers are just plain wrong.

The document provides a coherent means of addressing precisely that situation. The fact that amendments are hard is a feature, not a bug.

Arguments need to be grounded in the text, but "original understanding" is just as much a ######## dump as "penumbras".

Unfortunately, in practice, you are correct. Originalism can be used in that fashion, and it has been used in that fashion. The fact that it has been misused however, doesn't diminish it's value anymore than the fact that Due Process and Equal Protection are frequently misused diminishes their value.
   137. David Nieporent (now, with children) Posted: November 29, 2009 at 07:17 PM (#3398662)
because why would anybody empower a random person to decide what laws should mean, rather than what they do mean?

But this ignores the point I have made over and over again - it can't be that originalism is correct because it is desirable because if in any given controversy the result it required was undesirable, the mode of interpretation would fail.
You misunderstand me; I don't say that originalism is correct because it leads to desirable results in some, most, or all situations. I'm talking about the structural desirability of judicial review. "Congress shall only be allowed to pass laws if some random guy thinks it's a good idea" would be a rather puzzling approach. We elect 535 people to decide whether something's a good idea; why would we need one more guy to weigh in on that question?

We want him to weigh in on a different question: whether the law conflicts with the rules already laid out for Congress to follow. But what's the source of those rules? His own opinion about what the rules should be -- say, based on the "evolving needs of society"? But that just devolves into the approach above, which we've (I've?) already rejected. It has to be based upon some fixed external referent (namely, the Constitution.) But without originalism, it isn't fixed at all, and if it isn't fixed, then we're back to square one.
Originalism can only be justified if there is some reason why the intentions of the framers et al. are binding apart from the fact that people like it -- otherwise we are exactly where you insist that we should not be, with judges doing what makes them happy rather than what the law requires.
As I said earlier in response to Rich, I don't talk about the "intentions" of the framers -- only about what they actually said. But if we don't care what the framers said, then you can't justify a constitution at all, because that's all the constitution is.
The fact that "original intent" or "plain meaning" appeals to people with little or no background in the law is also not persuasive to me.

Indeed, as I have said all along, the basic failing of originalism is that it cannot persuade people who don't already believe in originalism.
That argument proves too much; why is that a basic failing of "originalism," as opposed to a basic failing of all jurisprudential approaches?
Not to mention that, as another poster has said to deaf ears, it is generally a myth that the original intent of "the framers" can adequately be determined as to many, most, or any modern controversies.
Right, which is why "intent" isn't my approach, or that of any other originalist nowadays.

There is a poster on this site who is much more articulate than I am on this subject. I wish he were here instead of, presumably, spending the last of Thanksgiving weekend with loved ones instead of with you guys!!
Sam and I have had many discussions here, and I own (and have read) said book, but it's not really a rebuttal to originalism; it's just a claim that originalists don't always make rulings that originalism would lead to. Which proves nothing except that nobody's perfect.
   138. David Nieporent (now, with children) Posted: November 29, 2009 at 07:19 PM (#3398664)
The chief problem with original understanding is that it fails to take into account circumstances where the founding fathers are just plain wrong. The reason why so many liberals hate the doctrine of original understanding is that it yokes us to the mores and values of 1789. Like it or not, those values and mores have changed.
That's why god invented Article V.

If, in 40 years, a supermajority of Americans decide they no longer want the death penalty, does that mean that we still have to have it, just because in 1789 they didn't mind it? Scalia's still waiting for the case, mind you.
Uh, no, of course not. Nothing in the Constitution says that one "has to have" the death penalty. Originalism simply says that nothing in the constitution forbids the death penalty. If a supermajority of Americans decide they no longer want it, then (a) they can just vote for legislators that will repeal it, or (b) if they're really sure they don't want it ever, they can amend the constitution to forbid it from ever being enacted by a legislature. Legitimately amend it, not through verbal sleight-of-hand.
   139. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 07:29 PM (#3398670)
Dave, I think we're talking past each other at this point. Nowhere did I say that a judge shouldn't follow the text of the constitution - only that the framers' supposed intent with respect to that text has no power to persuade those who don't already believe that it has the force of law. To the contrary, I said that a judge should uphold the text of the constitution, because a (federal) judge swears an oath to do so. That may seem like a week reason to uphold the constitution (you promised!) but I don't know of a better one.
   140. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 07:29 PM (#3398673)
None of them address the narrow point I made - which is that there is no textual prohibition in the federal constitution against taking private property for private use, with just compensation. The last 75 comments or so prove that this is beyond debate.


This is just astonishing.


Learn something new every day, Langer.
   141. David Nieporent (now, with children) Posted: November 29, 2009 at 07:43 PM (#3398683)
Dave, I think we're talking past each other at this point. Nowhere did I say that a judge shouldn't follow the text of the constitution - only that the framers' supposed intent with respect to that text has no power to persuade those who don't already believe that it has the force of law. To the contrary, I said that a judge should uphold the text of the constitution, because a (federal) judge swears an oath to do so. That may seem like a week reason to uphold the constitution (you promised!) but I don't know of a better one.
I don't think that's weak, per se. The issue between us is, then, when you say that a judge should "uphold the text," what does that mean? Some phrases may be utterly unambiguous (a president must be 35 years old, for instance). But many (perhaps most) are not; they're capable of more than one interpretation. What is the judge taking an oath to do, in that case? In other words, what is the "text" that he's swearing an oath to uphold?

If he's taking an oath to uphold whatever interpretation he thinks is more desirable, we're back to the problem of why we should care. If it can mean A or B, and Congress passes a law that comports with A but not B, but the judge likes B better, why would we want to let him substitute his view of desirability for that of Congress?
   142. tshipman Posted: November 29, 2009 at 07:44 PM (#3398684)
Uh, no, of course not. Nothing in the Constitution says that one "has to have" the death penalty. Originalism simply says that nothing in the constitution forbids the death penalty. If a supermajority of Americans decide they no longer want it, then (a) they can just vote for legislators that will repeal it, or (b) if they're really sure they don't want it ever, they can amend the constitution to forbid it from ever being enacted by a legislature. Legitimately amend it, not through verbal sleight-of-hand.


If the Supreme Court rules that the death penalty is a cruel and unusual punishment that would be expressly out of sync with the original understanding, yet perfectly in tune with their words.

The death penalty provides a good argument for why original understanding is flawed. The Original Understanding of "cruel and unusual punishment" wouldn't extend to not executing minors, or not executing the mentally retarded. It would extend to not executing women.

Do you believe it should require an amendment to the constitution to require states to not execute the mentally retarded or the underage? Should there have been a constitutional amendment to allow for the execution of Aileen Wournos? After all, a convincing original understanding case could be made that the death penalty would be considered cruel and unusual punishment for a woman under the original understanding of the times.
   143. tshipman Posted: November 29, 2009 at 07:45 PM (#3398686)
If it can mean A or B, and Congress passes a law that comports with A but not B, but the judge likes B better, why would we want to let him substitute his view of desirability for that of Congress?


Because John Marshall said so, and the "original understanding" crowd should be on board with that. Wasn't he a founding father? Weren't other FF's still around then?

Edit: stupid brain fart, wrote John Jay at first instead of J. Marshall.
   144. Lassus Posted: November 29, 2009 at 07:52 PM (#3398689)
By inserting "for public use," you're acknowledging that you realize that there are other kinds of takings.

Grammatically, syntactically, contextually - this is an interpretation. It certainly could be meant that way but to just take it as fact isn't clear at all.
   145. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 08:01 PM (#3398696)
I don't think that's weak, per se. The issue between us is, then, when you say that a judge should "uphold the text," what does that mean? Some phrases may be utterly unambiguous (a president must be 35 years old, for instance). But many (perhaps most) are not; they're capable of more than one interpretation. What is the judge taking an oath to do, in that case? In other words, what is the "text" that he's swearing an oath to uphold?

If he's taking an oath to uphold whatever interpretation he thinks is more desirable, we're back to the problem of why we should care. If it can mean A or B, and Congress passes a law that comports with A but not B, but the judge likes B better, why would we want to let him substitute his view of desirability for that of Congress?


Maybe you wouldn't - your rule might well be that, in ambiguous cases, Congress has the discretion to pass a law.

Or you might say that yes, this judge is fallible, but at least he is alive, was appointed via a democratic process, and has an actual controversy with facts in front of him, while the framers are and had none of these things.

Or you might acknowledge that there is no right answer (because divining original intent is a fool's errand and perhaps even contrary to the framers' intent) and so the judge really should decide based on his political leanings and let the chips fall where they may.

You might want the judge to protect the weaker party, in a limited way that allows the stronger party to use the political processes to bring about change if the stronger party can do so.

You might decide the case on the narrowest grounds possible that do not shut down debate on a particular subject -- i.e., instead of holding that all abortion is protected, you might hold that on these facts, under these circumstances, this abortion is protected, and let the politics continue to play out.

That is not to suggest that I prefer any of those answers - it is simply to point out that there are a lot of potential answers to your question that one might or might not prefer to interpreting the law in accordance with the framers' 210 year old views, if any.
   146. David Nieporent (now, with children) Posted: November 29, 2009 at 09:59 PM (#3398729)
The death penalty provides a good argument for why original understanding is flawed.
How?
The Original Understanding of "cruel and unusual punishment" wouldn't extend to not executing minors, or not executing the mentally retarded. It would extend to not executing women.

Do you believe it should require an amendment to the constitution to require states to not execute the mentally retarded or the underage?
Absolutely.
Should there have been a constitutional amendment to allow for the execution of Aileen Wournos? After all, a convincing original understanding case could be made that the death penalty would be considered cruel and unusual punishment for a woman under the original understanding of the times.
If in fact that's what the historical evidence shows, then sure. I don't believe it's correct; while executions of women were rare, they did happen in colonial times.
   147. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 10:21 PM (#3398738)
If in fact that's what the historical evidence shows, then sure.


You think the framers mistakenly forgot to say in the constitution whether or not execution of women was ok?

Or do you think they were deliberately vague about the role of judicial review:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
   148. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 10:22 PM (#3398739)
I don't believe it's correct; while executions of women were rare, they did happen in colonial times.


Aren't "rare" and "unusual" near synonyms in this context?
   149. David Nieporent (now, with children) Posted: November 29, 2009 at 11:08 PM (#3398762)
I don't believe it's correct; while executions of women were rare, they did happen in colonial times.

Aren't "rare" and "unusual" near synonyms in this context?
I don't think so, no. Something can be "rare" simply because it rarely arises; something is "unusual" because it's rarely imposed relative to how often it arises. For example, executions for treason are rare - because treason rarely happens - but not unusual - because it's common to execute traitors when they are caught. (In any case, the 8th bans punishments which are cruel and unusual, not cruel or unusual. One would have to show that the death penalty is cruel as well.)
   150. tshipman Posted: November 29, 2009 at 11:33 PM (#3398766)
While I understand that you are okay with changing moral values of the society not being reflected until there is a supermajority, most of the society would not be okay with that.

To give just a few examples of the kind of things that, according to "original understanding", would have not happened:

Loving v. Virginia--equal protection and due process were not originally understood to apply to miscegenation laws.
Brown v. Board of Education--equal protection was not originally understood to apply to schooling.
Gibbons v. Ogden--Original understanding of the commerce clause was meant to be interpreted more narrowly.
Gideon v. Wainwright--Original understanding of due process not inclusive of right to counsel.
Miranda v. Arizona--Original understanding of due process not inclusive of being advised of one's rights.

The changing values of a society are recognized by the judiciary, causing the law of the land to reflect the will of the people. Tying us to a 200 year old yoke is bad government. I understand that you'd rather have a much more minimal government, but Libertarians should stop pretending that originalism is anything that the majority of the population would prefer.
   151. Dan Szymborski Posted: November 29, 2009 at 11:50 PM (#3398773)
I understand that you'd rather have a much more minimal government, but Libertarians should stop pretending that originalism is anything that the majority of the population would prefer.

When did libertarians ever pretend that the things we prefer would be preferred by the majority? That's a conceit mostly reserved to <strike>Greens and Blues</strike> Republicans and Democrats.

On a fundamental level, libertarians don't give a #### whether an argument is originalist or not, we care about stopping statists.
   152. Freeballin' (Tales of Met Power) Posted: November 29, 2009 at 11:51 PM (#3398774)
I don't think so, no. Something can be "rare" simply because it rarely arises; something is "unusual" because it's rarely imposed relative to how often it arises. For example, executions for treason are rare - because treason rarely happens - but not unusual - because it's common to execute traitors when they are caught.


Ok, but you just did exactly what you said shouldn't be done - you made up, out of whole cloth, a definition and applied it to the constitution.

(In any case, the 8th bans punishments which are cruel and unusual, not cruel or unusual. One would have to show that the death penalty is cruel as well.)


According to some dead, racist, jew-hating, misogynistic slaveowners' notions of cruelty, no doubt.
   153. snapper (history's 42nd greatest monster) Posted: November 30, 2009 at 12:07 AM (#3398780)
To give just a few examples of the kind of things that, according to "original understanding", would have not happened:

Loving v. Virginia--equal protection and due process were not originally understood to apply to miscegenation laws.
Brown v. Board of Education--equal protection was not originally understood to apply to schooling.
Gibbons v. Ogden--Original understanding of the commerce clause was meant to be interpreted more narrowly.
Gideon v. Wainwright--Original understanding of due process not inclusive of right to counsel.
Miranda v. Arizona--Original understanding of due process not inclusive of being advised of one's rights.

The changing values of a society are recognized by the judiciary, causing the law of the land to reflect the will of the people.


If it is the will of the people to change these types of things, they can do so through the legislative process. The legislature can always grant more rights than the Constitution, they just can't grant fewer rights.
   154. Freeballin' (Tales of Met Power) Posted: November 30, 2009 at 12:16 AM (#3398783)

If it is the will of the people to change these types of things, they can do so through the legislative process. The legislature can always grant more rights than the Constitution, they just can't grant fewer rights.


The counterargument is that people's rights should not depend on what the majority of the people are willing to grant - if that were right, you wouldn't need constitutional protection of individual rights.

And how is what you just said consistent with your stinging rebuke of the Kelo decision?
   155. tshipman Posted: November 30, 2009 at 12:33 AM (#3398788)

If it is the will of the people to change these types of things, they can do so through the legislative process. The legislature can always grant more rights than the Constitution, they just can't grant fewer rights.


That's simply not true by an original understanding doctrine. Loving v. Virginia is a very good example of this. It was the will of the people of Virginia to prevent miscegenation. It was legislated, and was not deemed to be in contradiction with the 14th amendment providing equal protection under the law.

Then, the values of the country as a whole changed, and it was in contradiction with the new understanding of what Equal Protection meant. The concept of equal protection remained the same, but the values of the people who lived outside of Virginia changed. Alabama, for instance, didn't remove their anti-miscegenation law until the year 2000. From an original understanding doctrine, Loving would have not been able to live in the state of Virginia while married to a white woman, since the law was passed with an original understanding of what equal protection was. It would take a constitutional amendment (to apply to the country), or a repeal of the Virginia law (to apply locally), for Loving to live in Virginia with his wife.

That's why judicial review is necessary. Also, if original understanding is so damn important, why is John Marshall not included in that original understanding? Because he sure as hell didn't stick to that doctrine.
   156. snapper (history's 42nd greatest monster) Posted: November 30, 2009 at 12:34 AM (#3398789)
The counterargument is that people's rights should not depend on what the majority of the people are willing to grant - if that were right, you wouldn't need constitutional protection of individual rights.

Correct. The point is courts shouldn't make up new rights, regardless of the "changing values" of society, they should stick to enforcing the rights granted in the Constitution. New rights should only come through legislation, or Constitutional Amendment. If society's value really have changed, there should be no need for judges to effect the change.

And how is what you just said consistent with your stinging rebuke of the Kelo decision?

The city of New London violated people's Sixth Amendment rights, and the courts, including the Supreme Court, let them do it.

If the people of the U.S. want to allow municipalities the right to use eminent domain to further private development, that power would need to be granted through a Constitutional Amendment.
   157. snapper (history's 42nd greatest monster) Posted: November 30, 2009 at 12:38 AM (#3398791)
The concept of equal protection remained the same, but the values of the people who lived outside of Virginia changed.

This is problematic to me. Constitutional rights shouldn't depend on the "values" of the people.

To go back to my earlier example, would slavery for debtors become Constitutional if the majority decided it was a great idea and made defaulting on debt a misdemeanor? Why do you assume values always change in a good way?
   158. Sam M. Posted: November 30, 2009 at 12:38 AM (#3398792)
Well, I've been asked to provide my two cents worth here, but be warned I haven't read the whole thread (or anywhere close). I've seen enough of the fairly typical anti-Kelo sentiment to get the flavor of at least one side, though, so I'll wade in to say:

Bullshit.

What I tell my con law students about Kelo is how hypocritical some (not all, obviously, but some) of the opposition to it is. Much of it comes from the very same folks who blast Roe v. Wade on the ground that it made up rights nowhere in the Constitution and, in so doing, got in the way of the democratic process that was resolving the abortion issue in a more effective manner (because of the democratic legitimacy that legislative reform confers), and one which would ultimately have safeguarded a woman's right to privacy in many if not most states to a very substantial degree. I have mixed feelings about that argument, but it certainly has some merit to it.

Applied to Kelo, though, it is a total winner. Look at the response to Kelo. Lots of states have enacted legislation to bar the use of eminent domain for the types of private developments that caused such outrage there. Instead of the courts setting up some totally judge-made test that appears absolutely nowhere in the Fifth Amendment to second-guess the democratic branches as to what constitues a "public use," those very branches are providing a far more legitimate, and sturdy, protection for the "right" involved. Me, I don't think it is any sort of "right," at least not of the constitutional variety. The constitutional right involved here is to just compensation when the government takes your property when it decides when and whether the public needs it for what the publicly elected, democratically chosen branches decide meets the public's genuine public policy needs. There are no judicially manageable standards for deciding the "public use" question, and courts should stay out of it. It is amazing to me that David N. -- he who supposedly stands so solidly against our overly-litigious society -- would favor the losing side in Kelo, which would have been nothing if not litigation-spawning.

We now have the best of all worlds. Good constitutional law, with no made-up rights emanating from the Court regarding "public use." And good public policy, emanating from legislatures, telling both state and local governments to refrain from using the eminent domain power where it shouldn't be used, even if it technically CAN be. What a concept -- showing that not all limits on governmental power need come from the courts. Some can come, just as the Framers contemplated, from We the People.
   159. Freeballin' (Tales of Met Power) Posted: November 30, 2009 at 12:45 AM (#3398796)
The city of New London violated people's Sixth Amendment rights, and the courts, including the Supreme Court, let them do it.


Their "Sixth Amendment rights" according to snapper, anyway. According to the document, it ain't in there.
   160. Freeballin' (Tales of Met Power) Posted: November 30, 2009 at 12:46 AM (#3398798)

To go back to my earlier example, would slavery for debtors become Constitutional if the majority decided it was a great idea and made defaulting on debt a misdemeanor? Why do you assume values always change in a good way?


Of course, slavery is specifically banned in the constitution. Taking of property with just compensation, not so much.
   161. snapper (history's 42nd greatest monster) Posted: November 30, 2009 at 12:56 AM (#3398801)
Of course, slavery is specifically banned in the constitution. Taking of property with just compensation, not so much.

"except as a punishment for crime"

Criminalize something, and voila, slavery becomes a Constitutionally approved punishment.
   162. Rich Rifkin Posted: November 30, 2009 at 12:58 AM (#3398802)
#142 The death penalty provides a good argument for why original understanding is flawed. The Original Understanding of "cruel and unusual punishment" wouldn't extend to not executing minors, or not executing the mentally retarded.

The question of executing the mentally retarded back in the 18th C. is interesting. If you think they would have executed someone who could not tell right from wrong you are wrong. They had institutions for people who were mentally retarded and severely mentally ill; and they did not and would not execute them (though I guess there may have been some exceptions). So the question for "societal change" comes about with respect only to people who are deemed "mildly retarded." In Atkins, I think the Court decided that "society had changed" and that even if someone knows right from wrong, he should not be executed if his IQ falls below 71. My own view is that with the mildly retarded, the Constitution leaves the decision up to the legislatures. If a majority in a state -- such as in Georgia, which was the first state to do so -- believes it is wrong to execute someone who has mild retardation, then the state will do so.

Here is what Scalia wrote in his dissent in Atkins:
The Court makes no pretense that execution of the mildly mentally retarded would have been considered cruel and unusual in 1791. Only the severely or pro-foundly mentally retarded, commonly known as idiots, enjoyed any special status under the law at that time.

They, like lunatics, suffered a deficiency in will rendering them unable to tell right from wrong. 4 W. Blackstone, Commentaries on the Laws of England 24 (1769) (hereinafter Blackstone); see also Penry, 492 U. S., at 331 332 ([T]he term idiot was generally used to describe persons who had a total lack of reason or understanding, or an inability to distinguish between good and evil?); id., at 333 (citing sources indicating that idiots generally had an IQ of 25 or below, which would place them within the ?profound? or ?severe? range of mental retardation under modern standards); 2 A. Fitz-Herbert, Natura Brevium 233B (9th ed. 1794) (originally published 1534) (An idiot is ?such a person who cannot account or number twenty pence, nor can tell who was his father or mother, nor how old he is, etc., so as it may appear that he hath no understanding of reason what shall be for his profit, or what for his loss?). Due to their incompetence, idiots were ?excuse[d] from the guilt, and of course from the punishment, of any criminal action committed under such deprivation of the senses.? 4 Blackstone 25; see also Penry, supra, at 331. Instead, they were often committed to civil confinement or made wards of the State, thereby preventing them from ?go[ing] loose, to the terror of the king?s subjects.? 4 Blackstone 25; see also S. Brakel, J. Parry, & B. Weiner, The Mentally Disabled and the Law 12?14 (3d ed. 1985); 1 Blackstone 292?296; 1 M. Hale, Pleas of the Crown 33 (1st Am. ed. 1847). Mentally retarded offenders with less severe impairments?those who were not ?idiots??suffered criminal prosecution and punishment, including capital punishment. See, e.g., I. Ray, Medical Jurisprudence of Insanity 65, 87?92 (W. Overholser ed. 1962) (recounting the 1834 trial and execution in Concord, New Hampshire, of an apparent ?imbecile??imbecility being a less severe form of retardation which ?differs from idiocy in the circumstance that while in [the idiot] there is an utter destitution of every thing like reason, [imbeciles] possess some intellectual capacity, though infinitely less than is possessed by the great mass of mankind?);
It would extend to not executing women.

That is wrong, too.
   163. Sam M. Posted: November 30, 2009 at 01:02 AM (#3398804)
That's why god invented Article V.

Ah, originalists. You can always -- always -- find non-originalist decisions that supposedly steadfast originalist members of the Court joined and authored. Why? Because they aren't really originalist when it actually forces them to reach outcomes they don't like. I have lots of examples. Hell, I wrote a whole book about the departures from originalism of Justices Scalia and Thomas, and why it shows both that (1) they are results-oriented conservatives rather than consistent, principled jurists, and (2) originalism itself as a method is no more constraining on judges than any other method.

Hell, I'll bet Nieporent likes the regulatory takings doctrine just fine, by which certain government regulations can be subject to suit (never mind the encouraging litigation part ... he only objects to litigiousness against defendants he likes!) by property owners seeking compensation because of the effects of a regulation in reducing their property value. Never mind that the framers contemplated that the Takings Clause applied only to actual physical takings. The regulatory takings clause was a creation of Oliver Wendell Holmes in the '20s, and was massively expanded by Scalia and Co. in the last 20 years, despite its non-originalist pedigree, because they just don't like government regulation.

Sigh. Diogenes will find an honest man before he finds a truly consistent originalist.
   164. Freeballin' (Tales of Met Power) Posted: November 30, 2009 at 01:05 AM (#3398805)

Of course, slavery is specifically banned in the constitution. Taking of property with just compensation, not so much.

"except as a punishment for crime"

Criminalize something, and voila, slavery becomes a Constitutionally approved punishment.


Whatever your point is here, it is very difficult to understand.
   165. snapper (history's 42nd greatest monster) Posted: November 30, 2009 at 01:07 AM (#3398807)
The regulatory takings clause was a creation of Oliver Wendell Holmes in the '20s, and was massively expanded by Scalia and Co. in the last 20 years, despite its non-originalist pedigree, because they just don't like government regulation.


Sam, isn't this truly a case of something the authors couldn't have contemplated? There were no such regulations in the 18th century.

And, I would argue, a true originalist reading would declare most regulations themselves un-Constitutional.
   166. snapper (history's 42nd greatest monster) Posted: November 30, 2009 at 01:11 AM (#3398808)
Whatever your point is here, it is very difficult to understand.


My point is you damn well better hold to the original intent of the drafters of the 13th Amendment i.e. ban all slavery, but allow convicts to be forced to work, b/c the language allows for some bizarre interpretations if we allow the current majority to determine what it means.
   167. tshipman Posted: November 30, 2009 at 01:12 AM (#3398809)


Sam, isn't this truly a case of something the authors couldn't have contemplated? There were no such regulations in the 18th century.

And, I would argue, a true originalist reading would declare most regulations themselves un-Constitutional.


Another fine example of why original understanding is a flawed constitutional theory. How would the founders have viewed intellectual property law disputes?
   168. Sam M. Posted: November 30, 2009 at 01:14 AM (#3398810)
And, I would argue, a true originalist reading would declare most regulations themselves un-Constitutional.

State regulations? The framers would certainly not have regarded state regulations pursuant to their police powers as unconstitutional. The issue of federal powers is, of course, more controversial, but not state power. They viewed 99% of the limits contained in the Constitution (even after enactment of the Bill of Rights) as applying only to the federal government. And even if you are one of those originalist who buys incorporation (and not all do), and thus believes that after the 14th Amendment was enacted the provisions of the Bill of Rights -- some or all -- apply to the states, there is no reason to believe that the framers would have thought that the fundamental character of the Takings Clause was altered to bring anything more than physical takings into play as requiring compensation.

But that doesn't stop the Court's conservative wing, because their real concern is not the original understanding. It is conservative political ideology.

There were no such regulations in the 18th century.

Oh, and this is factually false. States enacted plenty of regulations in the 18th and early 19th century that substantially affected the value of private property. The constitutional answer was (to put it in non-legalese): "Tough luck." There were two independent reasons for this: the Fifth Amendment didn't apply to the states, even for physical takings, and there was no such thing as a "regulatory taking," under established Takings jurisprudence.
   169. snapper (history's 42nd greatest monster) Posted: November 30, 2009 at 01:25 AM (#3398812)
State regulations? The framers would certainly not have regarded state regulations pursuant to their police powers as unconstitutional. The issue of federal powers is, of course, more controversial, but not state power. They viewed 99% of the limits contained in the Constitution (even after enactment of the Bill of Rights) as applying only to the federal government. And even if you are one of those originalist who buys incorporation (and not all do), and thus believes that after the 14th Amendment was enacted the provisions of the Bill of Rights -- some or all -- apply to the states, there is no reason to believe that the framers would have thought that the fundamental character of the Takings Clause was altered to bring anything more than physical takings into play as requiring compensation.

Yes of course, I was talking about Federal regulations. But, does anyone rely deny incorporation applies the Amendments to the states? Otherwise states are free to establish their own state religions and limit speech, and so forth.

In any case, the Constitution wouldn't seem to restrict state regulations, b/c it doesn't specify the powers of the states, so you can't really apply the 10th Amendment to the states.
   170. snapper (history's 42nd greatest monster) Posted: November 30, 2009 at 01:26 AM (#3398813)
Oh, and this is factually false. States enacted plenty of regulations in the 18th and early 19th century that substantially affected the value of private property.

Federal regulations? Or do you mean states as in New Jersey?
   171. Freeballin' (Tales of Met Power) Posted: November 30, 2009 at 01:27 AM (#3398814)

My point is you damn well better hold to the original intent of the drafters of the 13th Amendment i.e. ban all slavery, but allow convicts to be forced to work, b/c the language allows for some bizarre interpretations if we allow the current majority to determine what it means.


I'm anti-slavery as well, so I guess we're in agreement. As to a textual basis for holding unconstitutional a taking with just compensation, I'm still waiting.
   172. snapper (history's 42nd greatest monster) Posted: November 30, 2009 at 01:34 AM (#3398816)
I'm anti-slavery as well, so I guess we're in agreement. As to a textual basis for holding unconstitutional a taking with just compensation, I'm still waiting.

You really don't see the analogy?

The textual basis is "public use". They chose those words. They could have said public benefit, or omitted them entirely, allowing your interpretation.

Instead they said "public use", and I think we can be pretty sure they meant actual public use, not transferring ownership to other private parties, b/c that's the way eminent domain was used for the first 150 years.
   173. Tripon Posted: November 30, 2009 at 01:34 AM (#3398817)
Wonder if the Supreme Court has arguments like this, or they decide to just let their clerks fight it out while they're having a siesta on the patio.
   174. Sam M. Posted: November 30, 2009 at 01:36 AM (#3398818)
Yes of course, I was talking about Federal regulations. But, does anyone rely deny incorporation applies the Amendments to the states? Otherwise states are free to establish their own state religions and limit speech, and so forth.

I don't think it was that obvious, snapper. The vast majority of takings cases -- then and now -- involve state and local use of the eminent domain power. Indeed, the landmark case in which the Court held that the Bill of Rights does not apply to the States was a takings case (Barron v. Baltimore). Of course, because of Barron, most of the early cases involving the states arose under state constitutions rather than the Fifth Amendment, but still -- it shows that the overwhelming majority of takings have always been done not by the feds but by governments closer to home.

As for your second question, incorporation is not all that controversial directly (at least not nowadays, but go back 70-90 years, and it was THE issue in constitutional law), but Justice Thomas certainly questions the use of the Due Process Clause. Largely, this is because of its spillover effects in recognizing fundamental rights not just for purposes of incorporation, but in substantive due process. In both areas, he objects to the whole notion of unenumerated rights (remember, incorporated rights are not applied because they are in the Bill of Rights per se, but because the Court has decided they are "fundamental," a test which vexes con law students every time they study it . . . .). The Court would have made things a lot simpler if it had simply taken the total incorporation approach and said the entire Bill was incorporated, and been done with it. But it didn't.
   175. greenback calls it soccer Posted: November 30, 2009 at 01:39 AM (#3398819)
Wonder if the Supreme Court has arguments like this, or they decide to just let their clerks fight it out while they're having a siesta on the patio.

I figure they go meta, and argue whether Kelo arguments are more interesting than Pavement arguments.
   176. Sam M. Posted: November 30, 2009 at 01:42 AM (#3398821)
Instead they said "public use", and I think we can be pretty sure they meant actual public use, not transferring ownership to other private parties,

So it's OK with you if the government takes the property and keeps it? Even if the "public use" to which it puts the property is to lease it to a developer on a 99-year lease? On what basis is a court to second-guess that use? If the only thing your theory actually bars is a formal transfer of ownership because that makes it a "private" use once it leaves government's hands, then you accomplish nothing other than to force the deal to take a slightly different form. There is no reason to impose such empty formalism on the constitutional text. And once the governments and the developers figure out how to get around the formalities, there are no judicially manageable standards for distinguishing one use from another. Property owners are far better off with the legislative protections that have emerged post-Kelo than with the meager protection Kelo would have offered had it come out the other way, which would have quickly been circumvented.
   177. Sam M. Posted: November 30, 2009 at 01:44 AM (#3398822)
I figure they go meta, and argue whether Kelo arguments are more interesting than Pavement arguments.

Justice Souter obviously decided the whole thing wasn't worth it, and left for New Hampshire as soon as Dick Cheney and Karl Rove weren't picking his replacement.
   178. Freeballin' (Tales of Met Power) Posted: November 30, 2009 at 01:49 AM (#3398824)
The textual basis is "public use". They chose those words. They could have said public benefit, or omitted them entirely, allowing your interpretation.


Or they could have stated your preferred rule of law, but they somehow forgot to mention it.
   179. ?Donde esta Dagoberto Campaneris? Posted: November 30, 2009 at 02:23 AM (#3398835)
What I tell my con law students about Kelo is how hypocritical some (not all, obviously, but some) of the opposition to it is

I'm not clear on this argument. Wouldn't anyone who supports Roe/Casey (which would include the entire Kelo majority) be guilty of the identical hypocrisy?

Much of it comes from the very same folks who blast Roe v. Wade

Much of it comes from there, but isn't Kelo met with antipathy by a number of commentators on the port-side of the aisle as well? Isn't evidence of its disdain across the political spectrum found in this thread? How is the case justified to somebody who thinks property rights and reproductive rights require judicial protection?

blast Roe v. Wade on the ground that it made up rights nowhere in the Constitution and, in so doing, got in the way of the democratic process that was resolving the abortion issue in a more effective manner & Applied to Kelo, though, it is a total winner.

Are you suggesting that the right to property and the right to abortion are equal in their appearance in the US Constitution? "For public use" is specifically enumerated. As for tests, we could simplify the issue with but a single test; is the land available for public use? Certainly there would be some gray areas for our judges to play with (sewage lines that are off-limits for health reasons) but I'm not clear how abandoning the text completely is a superior approach.

As a practical matter, I completely understand the argument you're making and I have great sympathy for it as the hypocrisy you reference is in play- but I'm more concerned when Supreme Court judges are hypocrites than when Joe the Textualist is. Indeed, in many ways <i>Kelo<i> is simply an anti-incorporation case, an idea I have great sympathy for. However, I'm not sure (a) the hypocrisy charge addresses the actual decision in view of the fact that the majority is guilty of the same hypocrisy, and (b) the idea that a decision is well-founded based on the response to it is much of a defense.
   180. snapper (history's 42nd greatest monster) Posted: November 30, 2009 at 02:23 AM (#3398836)
So it's OK with you if the government takes the property and keeps it? Even if the "public use" to which it puts the property is to lease it to a developer on a 99-year lease?

No, that would be public ownership, and private use.
   181. Freeballin' (Tales of Met Power) Posted: November 30, 2009 at 02:26 AM (#3398838)
"For public use" is specifically enumerated.


Not in the way you want it to be, it isn't.
   182. ?Donde esta Dagoberto Campaneris? Posted: November 30, 2009 at 02:38 AM (#3398844)
Not in the way you want it to be, it isn't.

How do I want it to be enumerated? Do tell.
   183. Sam M. Posted: November 30, 2009 at 03:13 AM (#3398849)
No, that would be public ownership, and private use.

And I repeat: there is no basis that is (a) discernible in the Constitution, (b) judicially manageable, or (c) justified by anything other than a naked policy preference for defining "public use" as anything other than what the democratically elected branches (whether they be national, state, or local) decide is in the public's interest or necessary to advance the general welfare at a given time. At some point, if the Constitution doesn't provide a textual basis for your argument, or at the very least a fundamental value from which you can fairly and persuasively extrapolate a principled argument, you have to (well, you don't have to, I guess, but I think you should) do what the Framers did: trust democracy. Trust the mechanisms by which We the People take control of the decisions that our government makes to change policies for the better. Which is exactly what happened in many states after Kelo left the issue to democratic decision-making.
   184. Freeballin' (Tales of Met Power) Posted: November 30, 2009 at 03:18 AM (#3398851)
Not in the way you want it to be, it isn't.

How do I want it to be enumerated? Do tell.


"The government may not take property, even with just compensation, if a judge determines that the intended use is not truly public." Or some such.
   185. Freeballin' (Tales of Met Power) Posted: November 30, 2009 at 03:54 AM (#3398858)
Sam, thanks by the way.
   186. Langer Monk Posted: November 30, 2009 at 04:55 AM (#3398883)
Freeballin' - I'm to guess that you think Kelo was the right decision, but for the wrong reason? That New London didn't have to satisfy any sort of 'public use' requirement?
   187. Sam M. Posted: November 30, 2009 at 06:32 AM (#3398897)
How is the case justified to somebody who thinks property rights and reproductive rights require judicial protection?

Fair question. The answer is two-fold, though I grant that the evidence for the second one has mostly been generated after Kelo. First, there are ample alternative protections for property rights in the Constitution, particularly in the just compensation requirement, which serves as both a substantial disincentive for government overreaching and as a guarantee that the very worst that can happen to the property owner is not that she will be out in the cold, but that she will receive fair compensation for her property. I acknowledge that this means that constitutional protection for property rights are not absolute, but this is true of all constitutional rights, so I see no reason why property rights should be special in this regard. I do not see parallel, alternative protections for reproductive rights in the constitutional scheme is the shield of the privacy fundamental right is held not to encompass abortion.

Second, the post-Kelo flood of legislation to block development-based uses of eminent domain shows that there is no absence of political process responsiveness to the claims of property owners. The Court has, since the 1930s, been especially responsive to the need to give higher levels of scrutiny to claims of constitutional violations in situations where there is strong evidence of a breakdown in the political process that makes it unresponsive to the claims of (e.g.) unrepresented or unpopular minorities. What we've seen since Kelo vindicates the empirical claim that the political process can and does take care of property owners very well indeed.

My own view, too, is that the hopelessness of finding and developing a coherent jurisprudence around the "public use" requirement is yet another strong reason that should have kept the Court out of it, a stronger basis than exists in the privacy/abortion jurisprudence (though I certainly am aware of the claims that the abortion jurisprudence is itself incoherent or at least barely based in constitutional principle . . . .).
   188. Howie Menckel Posted: November 30, 2009 at 06:50 AM (#3398899)
"the very worst that can happen to the property owner is not that she will be out in the cold, but that she will receive fair compensation for her property.

What we've seen since Kelo vindicates the empirical claim that the political process can and does take care of property owners very well indeed."

That is being vigorously disputed by the AY plaintiffs (some claim offers are around 50 pct or more below true value), though I can't offer any insight into the validity of their claims.
   189. Sam M. Posted: November 30, 2009 at 06:56 AM (#3398901)
That is being vigorously disputed by the AY plaintiffs (some claim offers are around 50 pct or more below true value), though I can't offer any insight into the validity of their claims.

Those are two different points I was making, Howie. The offers a property owner receives in a particular takings situation are not the political response I was referring to. The political response is the many bills passed by state legislatures barring their state & local governments from using eminent domain in Kelo-type situations (to aid developers in supposed "blight" situations). It is these laws that show the responsiveness of the democratic branches to the argument that the takings power should be limited to a certain, limited kind of "public use." Granted, these laws have not passed everywhere, but that is what Brandeis argued for when he talked about states as "laboratories of democracy." Let's see what kind of use of eminent domain actually works best.

As for the adequacy of offers that property owners receive, that is why any property owner is entitled to take the government to court and adjudicate whether the compensation being tendered is truly "just." That determination is far more amenable to judicial assessment than the nebulous concept of "public use," and has traditionally been a role that courts have played in the takings area.
   190. zenbitz Posted: November 30, 2009 at 07:17 AM (#3398906)
The legislature can always grant more rights than the Constitution, they just can't grant fewer rights.


They can amend the constitution to take away rights.
   191. billyshears Posted: November 30, 2009 at 07:18 AM (#3398907)
Originalists still want to argue about what the Constitution means - they just want to argue about what it meant it 1787 rather than what it means today. Considering that there were 50 or so delegates to the constitutional convention and 13 state ratifying conventions and that the framers often didn't agree amongst themselves what the text meant, this can be a rather challenging task. If you scour the 18th century historical record, you could find support for just about any constitutional argument you want to make. So instead of having an honest conversation about what constitutes cruel and unusual punishment, we instead have a dishonest conversation where everyone pretends that the sources that support their own particular point of view on the issue are more credible. As a prior poster mentioned, diving the original meaning of the Constitution would be a fool's errand if the very act of appearing to engage in such method of constitutional interpretation wasn't a mere charade by the right intended to add legitimacy to a results based analysis that all of the supposed intellectual lightweights on the left engage in.
   192. billyshears Posted: November 30, 2009 at 07:26 AM (#3398910)
As for your second question, incorporation is not all that controversial directly (at least not nowadays, but go back 70-90 years, and it was THE issue in constitutional law), but Justice Thomas certainly questions the use of the Due Process Clause.


If people are going to get all originalist on us, can I have my privileges and immunities clause back? Substantive due process may be BS, but we wouldn't have to have spent 100 years mangling that clause to make the 14th amendment do what it was supposed to have done initially if the Court had the courage to just undo the evisceration of the 14th amendment by a racist Supreme Court in the Slaughterhouse Cases in 1873.
   193. David Nieporent (now, with children) Posted: November 30, 2009 at 07:32 AM (#3398912)
While I understand that you are okay with changing moral values of the society not being reflected until there is a supermajority, most of the society would not be okay with that.

To give just a few examples of the kind of things that, according to "original understanding", would have not happened:

Loving v. Virginia--equal protection and due process were not originally understood to apply to miscegenation laws.
Brown v. Board of Education--equal protection was not originally understood to apply to schooling.
Gibbons v. Ogden--Original understanding of the commerce clause was meant to be interpreted more narrowly.
Gideon v. Wainwright--Original understanding of due process not inclusive of right to counsel.
Miranda v. Arizona--Original understanding of due process not inclusive of being advised of one's rights.

The changing values of a society are recognized by the judiciary, causing the law of the land to reflect the will of the people. Tying us to a 200 year old yoke is bad government. I understand that you'd rather have a much more minimal government, but Libertarians should stop pretending that originalism is anything that the majority of the population would prefer.
(1) "Libertarians" and "originalists" are orthagonal concepts. You're conflating two different things.
(2) When do libertarians ever pretend that our views are endorsed by the majority of the population?
(3) You're mistaken, or at least arguably are so, about some of the cases on your list being non-originalist. See, e.g., Michael McConnell's work on school segregation and the 14th amendment.
(4) You're mistaken about the popularity of originalism, which regularly commands majority support in polls. Perhaps you mean that some of the <u>results</u> of originalism would be unpopular, but, well, so what? The legislature is supposed to reflect the popular will; the judiciary is not.
(5) Your argument is ultimately incoherent; if these decisions were popular, reflecting the values of society and the will of the people, then what's the big deal which way the court rules? If the Court had come out the other way on Gideon or Miranda, that wouldn't have prevented the popularly-elected legislatures from creating those rights legislatively.

(6) As Ed Whelan and (IIRC) Scalia have pointed out, it's hypocritical to talk about wanting to reflect the changing values of society, when the activist Supreme Court decisions do exactly the opposite: freeze the law at a particular point in time. Roe and its progeny mean that even if abortion is highly unpopular, legislatures can't do anything about abortion; similarly for capital punishment for minors or the retarded, which is now banned by the Court regardless of what the "values of society" are. The whole point here isn't to reflect the changing values of society, but to reflect the values of a particular elite segment of society at a particular point in time. (I'm not saying that this is necessarily wrong; I'm saying that it has nothing to do with a desire to reflect a changing society.)


Oh, and as a minor point, Miranda does not hold that due process requires that one be advised of one's rights. Miranda is a prophylactic rule regarding the voluntariness of confessions under the fifth amendment.

EDIT: I just want to emphasize point #4 above: "Interpretative approach X is bad because it leads to a result I don't like" is pretty much the definition of results-oriented judging. The constitution simply doesn't mean whatever one wishes it to mean.
   194. billyshears Posted: November 30, 2009 at 07:43 AM (#3398916)
Your argument is ultimately incoherent; if these decisions were popular, reflecting the values of society and the will of the people, then what's the big deal which way the court rules? If the Court had come out the other way on Gideon or Miranda, that wouldn't have prevented the popularly-elected legislatures from creating those rights legislatively.


Not necessarily. The public could overwhelmingly support the right of interracial couples to marry and it could still be prohibited in a number of states where it is unpopular. If the right to marry the person of your choosing is fundamental, the protection of this right should not differ among the states. But personally, I don't thing the public should have a say in these sorts of things.
   195. David Nieporent (now, with children) Posted: November 30, 2009 at 07:59 AM (#3398919)
Another fine example of why original understanding is a flawed constitutional theory. How would the founders have viewed intellectual property law disputes?
I don't understand your question. What do you mean by "intellectual property law disputes"? Obviously the founders knew about intellectual property; they specifically provided for its protection in the constitution. And in any case, how does that show "why original understanding is a flawed constitutional theory"?

-----

Ok, but you just did exactly what you said shouldn't be done - you made up, out of whole cloth, a definition and applied it to the constitution.
(1) I did not, and (2) I did not say that one shouldn't define words in the constitution. You seem to be confusing -- see my quote from Scalia above -- textualism and strict constructionism.

(In any case, the 8th bans punishments which are cruel and unusual, not cruel or unusual. One would have to show that the death penalty is cruel as well.)

According to some dead, racist, jew-hating, misogynistic slaveowners' notions of cruelty, no doubt.
And?

That having been said, I should note that it's a perfectly reasonable argument that "cruel" was intended to reflect not merely what society thought was cruel in 1789 (or 1868), but what society thought was cruel at any given point in time. But that's not what the liberal approach is nowadays; they want the constitution to reflect not what society thinks is cruel, but what they personally think is cruel, and screw society. Stevens was clear on that point in Atkins: "the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." In short, according to Stevens, the eighth amendment means whatever he personally wants it to mean, because he's more enlightened than the public.
   196. David Nieporent (now, with children) Posted: November 30, 2009 at 08:01 AM (#3398921)
Not necessarily. The public could overwhelmingly support the right of interracial couples to marry and it could still be prohibited in a number of states where it is unpopular. If the right to marry the person of your choosing is fundamental, the protection of this right should not differ among the states. But personally, I don't thing the public should have a say in these sorts of things.
Me neither; indeed, as a libertarian, I guarantee there's a lot more things I don't think the public should have a say in than you do. But I don't think the constitution just happens to say exactly what I think it "should" say.
   197. David Nieporent (now, with children) Posted: November 30, 2009 at 08:08 AM (#3398923)
Originalists still want to argue about what the Constitution means - they just want to argue about what it meant it 1787 rather than what it means today.
Actually, we think that by definition, it means today the same thing it meant in 1787, except insofar as it was amended. (In fact, 1868 is the right baseline for many, if not most, constitutional cases.)
   198. billyshears Posted: November 30, 2009 at 08:19 AM (#3398925)
But I don't think the constitution just happens to say exactly what I think it "should" say.


"Just happens" is doing a lot of work in that sentence. If I don't believe that the meaning of the Constitution should be fixed, there's no reason I should think the Constitution says anything other than what I think it says.
   199. David Nieporent (now, with children) Posted: November 30, 2009 at 08:19 AM (#3398926)
That's why god invented Article V.

Ah, originalists. You can always -- always -- find non-originalist decisions that supposedly steadfast originalist members of the Court joined and authored. Why? Because they aren't really originalist when it actually forces them to reach outcomes they don't like. I have lots of examples. Hell, I wrote a whole book about the departures from originalism of Justices Scalia and Thomas, and why it shows both that (1) they are results-oriented conservatives rather than consistent, principled jurists, and (2) originalism itself as a method is no more constraining on judges than any other method.
As I wrote above, Sam, I bought and read your book. And you concede that its contents are pretty much as I describe them: originalism is flawed because some judges who profess to originalism issue non-originalist decisions. To which I replied, and reply again: non-sequitur. To the extent #1 is true, so what?, and #2 doesn't follow at all. If originalism weren't constraining on judges, then you couldn't talk about "departures from originalism." It's precisely because originalism is constraining that we can identify times when Scalia/Thomas/whomever are being unfaithful to it.

("Constraining" means that it determines the correct decision, not that it holds a gun to a judge's head and forces said judge to issue that correct decision.)
   200. billyshears Posted: November 30, 2009 at 08:21 AM (#3398927)
In fact, 1868 is the right baseline for many, if not most, constitutional cases


Do we still get to exclude the Confederacy from consideration?
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