April 30, 2010

Provocateurism 12

From Liberty and Tyranny, Mark Levin on legal interpration:

[…] When parties enter into voluntary arrangements, such as contracts, they use words to describe the terms and conditions by which they are obligated to perform and on which they are expected to rely. Contracts are interpreted, and the intentions of the parties discerned, in the context of their original making

The conservative is an originalist, for he believes that much like a contract, the Constitution sets forth certain terms and conditions for governing that hold the same meaning today day as they did yesterday and should tomorrow. It connects one generation to the next by restraining the present generation from societal experimentation and government excess. There really is no other standard by which the Constitution can be interpreted without abandoning its underlying principles altogether.

If the Constitution’s meaning can be erased or rewritten, and the Framers’ intentions ignored, it ceases to be a constitution but is instead a concoction of political expedients that serve the contemporary policy agendas of the few who are entrusted with public authority to preserve it.

As James Madison, the “father” of the Constitution, explained:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shapes and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in the modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of its origin and adoption.

To say that the Constitution is a “living and breathing document” is to give license to arbitrary and lawless activism. It is a mantra that gained purchase in the early twentieth century and is paraded around by the Statist as if to legitimate that which is illegitimate.

Thomas Jefferson, in an 1803 letter to Senator Wilson Cary Nicholas of Virginia respecting the Louisiana Purchase, explained:

Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no other than the definitions of the powers which that instrument gives. It specifies & delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. Whatever of these enumerated objects is proper for a law, Congress may make the law; whatever is proper to be executed by way of a treaty, the President & Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence.

The Constitution is the bedrock on which a living, evolving nation was built. It is — and must be — a timeless yet durable foundation that individuals can count on in a changing world. It is not perfect but the framers made it more perfectible though the amendment process.

The Conservative seeks to divine the Constitution’s meaning from its words and their historical context, including a variety of original sources — records of public debates, diaries, correspondence, notes, etc. While reasonable people may, in good faith, draw different conclusions from the application of this interpretative standard, it is the only standard that gives fidelity to the Constitution.

And where the Constitution is silent, states and individuals need not be. The Constitution and, more particularly, the framework of the government it establishes are not intended to address every issue or answer every perceived grievance. The is not a defect but a strength, because the government was intended to be a limited one.

The Statist is not interested in what the Framers said or intended. He is interested only in what he says and he intends. Consider the judiciary, which has seized for itself the most dominant role in interpreting the Constitution. When asked by a law clerk to explain his judicial philosophy, the late Associate Supreme Court justice Thurgood Marshall responded, “You do what you think is right and let the law catch up.” The late Associate justice Arthur Goldberg’s answer was no better. A law clerk recounts Goldberg telling him that his approach was to determine “what is the just result.” Still others are persuaded by the Statist’s semantic distortions, arguing that the judge’s job is to spread democracy or liberty.

The Conservative may ask the following questions: If words and their meanings can be manipulated or ignored to advance the Statist’s political and policy preferences, what then binds allegiance to the Statist’s words? Why should today’s law bind future generations if yesterday’s law does not bind this generation? Why should judicial precedent bind the nation if the Constitution itself does not? Why should any judicial determination based on a judge’s notion of what is “right” or “just” bind the individual if the individual believes the notion is wrong and unjust? Does not lawlessness beget lawlessness? Or is not the Statist really saying that the law is what he says it is, and that is the beginning and end of it?

When writing on intentionalism I’ve often noted that, far from a “theory of language” (as some have tried to frame it), intentionalism just is. What I mean by this is simple: what makes language language (rather than an accident that looks or sounds like language) is the intent to signify, to turn marks or sound forms into signs by attaching to the signifiers signifieds (or, if you prefer a triadic description of the sign, by attaching object and interpretant to the representamen).

As interpreters, to see language as language we must first believe that the signs we think we see are in fact signs and not mere marks we take to be signifiers: that is, we have to believe that they come from some agency who intended them as part of a speech act. To do otherwise is to pretend that something that merely looks like language is in fact language based solely on our own intent to see it as such. Or, to put it another way, our intent can turn something never intended as language into language; and the “author” of that new text is us.

Problems arise, as I’ve noted, when we attempt to dismiss intentionalism altogether (which is logically incoherent), or else when take the simple fact of intentionalism (it just is), agree to accept it as a linguistic premise, then promptly discard what accepting the premise truly entails with respect to meaning and interpretation.

Yet, that’s what many “conservatives” in the legal world have done by accepting a degraded form of “textualism” (which appeals to general convention and code) over “originalism” in its strongest form — which privileges, for purposes of interpretation, an appeal to original intent, with the premise being that the meaning was fixed at the time of composition and then again, legally-speaking, at the time of ratification (with the latter most crucial).

Textualists “look at the statutory structure and hear the words as they would sound in the mind of a skilled, objectively reasonable user of words.” In so doing, they believe they have freed themselves from having to consider as legally dispositive what they see as irrecoverable intent potentially spread among all those agencies responsible for the crafting and, ultimately, the ratification of a law or legal document.

But of course, they’ve done no such thing. Textualists are intentionalists by the very act of accepting that the text they are interpreting is, in fact, a speech act aimed at encoding law. Which makes their decision to then pretend that they are unconcerned with the actual intent of the original — privileging instead a conventionalized “meaning” based entirely on how they believe an ordinary reasonable person would react to the signifiers in order to reconstruct them as signs — quite troubling, in theory if not always in practice: because the vast majority of laws will be written in such a way that the lawmakers’ intent is abundantly clear, the textualist can convince himself that his method of privileging linguistic convention over intent (which to the textualist ceases to be important once the text has been ratified and turned into law) is both acceptable and, because it brackets the problems that arise in trying to negotiate the difficult reconstruction of intent as a governing condition for ratification, far more practical as an approach to interpreting law.

But “textualism,” thus described, is no different from any other intepretive stance that privileges convention over intent as the locus of meaning; the only difference is, the conventions of legal writing are such that intent tends to hew much closer to convention as a point of composition than might, say, colloquial speech, or imaginative writing, etc.

That is to say, it is a convention of legal writing to adhere as closely as possible to the conventionalized language of the legal profession. Knowing this, legal interpreters are able to rely heavily on convention when decoding (and re-encoding) signs. But what this doesn’t mean is that convention is responsible for giving a sign its meaning: instead, meaning is still derived from intent (the intent to signify on the front end, and the intent to see signs on the back end) — with convention, as always, simply a convenient way to signal intent in a system that relies on the arbitrary connection of sound forms to objects/referents.

Recall Madison: “What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in the modern sense.” Conventions change. And so what may seem quite “reasonable” for an interpreter inside the framework of modern convention may disarticulate entirely from what the original intention signaled under prior conventional conditions. One need look no further, for instance, at how “liberal” or “tolerance” are now conventionally used to recognize that convention is quite capable of assembling itself into formulations that entirely invert previous conventionalized signalings.

Where the textualist goes wrong is in thinking that, because it is a particular convention in legal writing to rely heavily on convention generally speaking as a way to signal intent, it is therefore acceptable to rely on convention as the ultimate arbiter of meaning — with that meaning then attributed back to the text itself, regardless of what the original intent (and so the original meaning) may have been. Or to put it more simply, the textualist has given himself permission to allow his own intent to use convention act as the guiding principle in determining meaning, when where he should be looking is toward original intent.

In most cases of legal interpretation, the textualist and the originalist will reach the same conclusions as to a statute’s general meaning. And that’s because, as I’ve noted, the statute is likely composed in such a way that the intent will track very closely with the meaning one is likely to glean using convention as a guiding principle of interpretation. And in fact, this is how most interpretation works: convention, code, and context all work together to signal intent.

But from a linguistic and semiotic standpoint, it is important that we make the distinction — important to recognize what it is we think we are doing when we interpret is just as crucial as the decoding itself — because convention, inasmuch as it is a kind of cultural shorthand, is a collective endeavor, while meaning, proceeding from a speech act, is the product of an original intent that may or may not adhere to convention. Allowing convention to stand as the final arbiter of meaning is allowing the receiver of the speech act to determine what the original utterance means. Dismissing as unimportant or unrecoverable the original intent of a text gives the intepreter permission to elevate his own intent — his own resignification and retextualization of a set of signifiers (the dismissal of authorial intent strips them of their status as signs until they are resignified by the interpreter) — to privileged status. Rather than interpreting the law, he is writing it. At least, that’s how it would work if we follow to their logical conclusions the textualist’s own description of what he thinks he is doing when he interprets.

When a textualist and an originalist come to the same reading on the meaning of a statute — as more often than not they will do — it is easy to dismiss the differences in linguistic philosophy as insignificant. But from the perspective of a coherent view of how speech acts function, it is important to note the difference: the originalist, insofar as he believes he is decoding the original intent of a statute, is actually interpreting; whereas the textualist, insofar as he dismisses intent and relies on convention to “interpret,” isn’t really interpreting at all. He is rewriting the text, albeit often in such a way that his own re-textualization closely or exactly matches the intent of the original. Either that, or he is misrepresenting what he is he is doing — and as a result permitting others to adopt what he claims are his methods as linguistically legitimate.

The question is, do we really want our rights determined by a series of happy accidents?

Discuss.

Posted by Jeff G. @ 11:24am
102 comments | Trackback

Comments (102)

  1. I have a headache right now, so I’m not even going to start this, as I sense some deeper thinking will be required that will exacerbate my throbbing skullparts.

    Be back after some Advil, Zyrtec, and medicinal spirits have had time to enter my bloodstream and steep for a bit.

  2. Actually, all it says, ultimately, is “GUM!”

    …Though I am rather worn out from putting it together.

  3. A huge store full of empty shelves is not what I got from that, but perhaps more coffee will help, couldn’t hurt.

  4. My excuse is that I got side-kicked in the left eyeball last night.

    Kind of scuffed the surface of my eyeball, it did. So I gave it a rest, came back and immediately got punched on exactly the same bit of tender eyesurface, which smarted all the more, having been offended just a few minutes earlier.

    Reading is not as fundamental today as it is normally. At least I can see, though.

    My fault, for not guarding more carefully. I may be fighting with a full-face shield for a bit.

    My wife says I must suck at it, but I did score front-leg roundhouse kicks on two additional black belts, so not a total failure.

  5. The question is, do we really want our rights determined by a series of happy accidents?

    More broadly, is this the way we want all communication involving the institutional structures and civic discussions required for our polity to (not) work.

    The answer, still, is no.

  6. roundhouse kicks to the head, I should have said.

  7. My wife says I must suck at it, but I did score front-leg roundhouse kicks on two additional black belts, so not a total failure.

    Huzzah! Hope they were nice satisfying thuds.

  8. This site used to be very discussy. I don’t think that sells though.

    Judging by the numbers.

  9. I’ll try to throw up a bit about tits and outrage later today. Right now, though, I’m going to have a chicken sandwich and chill.

  10. well…I find this a sillie high-verbal argument that completely ignores the intentionalism of the Founders.
    Citizens have rights in a representative government.
    Including representation.
    You argument is that somehow the Founders would have wanted to revoke suffrage and civil rights?

    Once blacks, women, and non-landholders became citizens……they got to selfrepresent.
    fait accompli

    Mark Levin is a creeper…..have you seen his facebook?

  11. Scalia seems to bypass “it just is” in favor of a — from his point of view — less slippery chunk of fixedness, namely, a document. He isn’t satisfied with the fixed indeterminacy of an author’s (or multiple author’s, to make the whole business even more complex and indeterminate) intent. So we’d end up discussing with him what’s the meaning of fixed or unchanging act?

  12. Jeff, I don’t object to you wanting to be on the wrong side of history, or wanting to shun the interweb koolkidz….
    but it looks increasingly to me that you are not on the wrong side of history……you are just on the side of wrong.

  13. You argument is that somehow the Founders would have wanted to revoke suffrage and civil rights?

    No, that’s not my argument. In fact, it doesn’t look like my argument, or look like anyone who might either be related to my argument or hang out with my argument. If it tried to friend my argument on facebook, my argument would ignore it as some desperate geek trying to collect friends it hasn’t earned.

    My argument is there, and I’m here to discuss it. What I won’t do is discuss things that have nothing to do with my argument, raised by those who either haven’t read my argument or else can’t (or are determined not to) understand it.

  14. Nothing says discussy like pointing fingers from the morally absolute truth of HISTORY!

  15. Nishi – meaning – Whoosh!!

    Now to go for that extra coffee.

  16. For my money, the problem with a strict reading of something like the commerce clause is that the wording itself vague, in that there is no definition of what Commerce means.

    ..the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.

    In this case, our problem with a limited interpretation of regulating commerce among the several states has been read very broadly from the very beginning, and as such is often used as the catch all argument for the Federal Government deciding it has the right to a “new” power.

  17. I love it when the nishit is aggressively dishonest towards our host, someone that has given her/it more leeway than it has ever deserved.

  18. I’ve seen a lot regarding the intent of the original writers of the Constitution and how to interpret their intent (and why that matters). What I have not seen is a consideration of the receiving end of the communication that is the Constitution.

    If we decide that a document (such as the Constitution, DoI, etc) is language, then it is also an act of communication. There is an audience. Perhaps of one, perhaps of this group of eeeevil white Euros, perhaps all humans now and to come. But there is an audience. When we seek to interpret, don’t we also have to consider not just what the author intended but who he was communicating with and the effect the author wanted his signs to have on the intended hearers/readers?

    In other words, is the mindset of the 21st century American so far removed from that of the 18th century British Colonial that it is impossible for us to correctly interpret a document like the Constitution? And if so, then what?

    But if it is possible, then it is a positive duty to do so.

    OK, I made my own head hurt. Ouch. Another Glenlivet 12 ought to do it.

  19. Actually, I think the Commerce Clause is the perfect example. “Commerce among the several states” is now interpreted to be “Commerce having an effect upon the several states,” which in turn gives Congress the power to do anything it wants, because virtually any human activity will have some minor ramification outside of the state where it occurs.

  20. Well wtf IS your argument?
    In 50 words or less.

  21. When we seek to interpret, don’t we also have to consider not just what the author intended but who he was communicating with and the effect the author wanted his signs to have on the intended hearers/readers?

    to ask who he was communicating with, etc., is to take into account context as a way toward understanding intent.

    So naturally we take all those factors into account. But we do so in order to reconstruct intent — and so reconstruct meaning.

  22. Well wtf IS your argument?

    It’s right above you.

    In 50 words or less.

    Nope, I believe it was more.

  23. That is WHAT I HEARD.
    WTF are you SAYING.

    without added marklevin bullshytt plz.
    i swear you just that in as subliminal filler…..or a joke.

  24. Condense it O Skilled One, Master of Language, Lesser god of Intentionalism, Prince of Forms….

  25. Condensation would lead to more traffic.
    I always like you at TAS but no one there understands wtf you saying either.

  26. Intentionally imposed stupidity. Why bother? She’s like a child pretending that she doesn’t understand the clear rules of her parents in the hopes of escaping a punishment for breaking them.

  27. link not like

  28. I don’t know what TAS is. And I ain’t Reader’s Digest.

    Do the work or don’t.

  29. And that, R. Sherman, is not the fault of the Framers, but the fault of the courts that decided it meant something other than what it said, like that growing your own wheat meant you didn’t have to buy it and therefore it was fair game for Uncle Sugar’s tender mercies.

    If the Framers were reanimated, there’d be bitchslapping aplenty.

  30. Grief on O Griefer. Total lack of good faith. It’s apparent to all.

  31. If the Framers were reanimated, there’d be bitchslapping aplenty.

    This shall be my pleasant visual image for the day.

  32. In case anyone feels like going Roman…

  33. I’m not so sure Pablo. The first use of the argument that the commerce clause gave the Federal Government the power to do something that wasn’t explicitly stated was made by Hamilton arguing for Washington to not veto the establishment of a national bank. The fist administration, and one of the chief architects of the founding document.

    The institution of a bank has also a natural relation to the regulation
    of trade between the states, insofar as it is conducive to the creation of
    a convenient medium of exchange between them,..

  34. And just so we don’t get sidetracked, when Hamilton talks of the “creation of a convenient medium of exchange between them” he isn’t talking about a common currency, as that is already an enumerated power, and purpose of the bank was not to mint the coin.

  35. Is nishit the monster even capable of good faithed discussion?

  36. Capable sure, but she gets pleasure in being an evil little bitch instead. Sewing discord is what she is after. That and being given permission to augment her body with technology, which is far as I am concerned she should just go do with our without permission from mama government.

  37. And I ain’t Reader’s Digest.

    How ’bout bumpersticker length? Or, maybe if you put it into txtese. lulz

  38. The Statist is not interested in what the Framers said or intended. He is interested only in what he says and he intends.

    This is exactly correct, and given the instruction on the correct interpretation of our foundational document by both Madison and Jefferson, the very existence of textualism underlines the contempt for the Constitution on the left.

  39. Do liberals really care, anyway, about the intent of writers the Constitution? Aren’t they more of the opinion that it’s just such an old document, it’s become irrelevant?

    That’s the impression I get, anyways.

  40. Jeff, I don’t object to you wanting to be on the wrong side of history, or wanting to shun the interweb koolkidz….

    To the “progressive” “koolkidz” among us, the Constitution is not a foundation or bedrock to build a nation on, but a plaything to kick around in the street, or to ignore altogether should it suit them.

  41. Madison’s letter, from which the Levin quote comes, and what he had written just prior to the quoted passage:

    Besides the occasional and transient subjects on which parties are formed, they seem to have a permanent foundation in the variance of political opinions in free States, and of occupations and interests in all civilized States. The Constitution itself, whether written or prescriptive, influenced as its exposition and administration will be, by those causes, must be an unfailing source of party distinctions. And the very peculiarity which gives pre-eminent value to that of the United States, the partition of power between different governments, opens a new door for controversies and parties. There is nevertheless sufficient scope for combating the spirit of party, as far as it may not be necessary to fan the flame of liberty, in efforts to divert it from the more noxious channels; to moderate its violence, especially in the ascendant party; to elucidate the policy which harmonizes jealous interests; and particularly to give to the Constitution that just construction, which, with the aid of time and habit, may put an end to the more dangerous schisms otherwise growing out of it.

    And what just after:

    Not to look farther for an example, take the word “consolidate” in the Address of the Convention prefixed to the Constitution. It there and then meant to give strength and solidity to the Union of the States. In its current & controversial application it means a destruction of the States, by transfusing their powers into the government of the Union.

  42. Do liberals really care, anyway, about the intent of writers the Constitution?

    As far as I can tell, Carin, the attitude seems to be that times have changed, circumstances are different, it didn’t foresee our present needs, it is fundamentally flawed, etc. So in a word, no.

  43. And too SW, it appears that many people (not to say proggressives exclusively) believe as a matter of course that it is impossible to recover as knowledge what the writers intended. That some of the premises underlying the necessary chain of inference to come to that position could undermine the possibility of their own communication of intent in asserting this conclusion, seems not to trouble them.

  44. Yes, sdferr, an honest approach to the intent of the authors would help a great deal. As in the case of Citizens United vs FEC, an appraisal of the intent of the First Amendment as written should have lead automatically to the promotion of the political speech of Citizens United.

  45. I think, too, that there is an arrogance regarding the intellectual work of those who came before us. Sure, they were brilliant for their time but …

    Look at nishi’s dismissal (somewhere, earlier today) of the work of science fiction writers who aren’t current, for example.

  46. I love it when it gets all intentiony around here. Examples of what Jeff speaks so eloquently abound.
    For instance, in a recent example, while it is spelled: “Affordable Health Care Reform Act of 2009,” it is pronounced: “Attempt to replace health care rationing by price with rationing by statist social engineering.”

    Orwell was on to these bastards more than 60 years ago. Meanwhile, Marx was wrong in more ways than one. While history continues to repeat itself, it just keeps reproducing tragedies.

  47. the wrong side of history

    History has no side, Hegelian/Marxist failbot.

  48. Scalia is a textualist. Or at least, that’s how he thinks of himself.

    Certain conservative bloggers also subscribe to textualism.

    Thomas is an originalist, self-described. And I believe him, because more often than not that’s what I’ve seen in his most “controversial” rulings / concurrences / dissents.

  49. In the textualist’s world, what then are the limits to the power of Congress?

  50. Limits to the power of Congress? What have you been smoking?

  51. I can’t say for textualists as such SW, but Scalia says toward the end of his remarks at CUA (transcribed, and not so well it seems, all in all: “John Raule”? None of the [sic]’s are mine. ), by way of a reductio:

    They’re going to pick the committee that agrees with them. So at the end of this long process, this great evolution from stuffy old originalism to an evolutionary constitution we arrive at the point where the meaning of the constitution [sic], the most important part of the constitution[sic], the bill of rights[sic], is decided upon by the very body that the bill of rights is supposed to protect you as an individual against. Namely, the majority. That seems to me the inevitable demonstration that the only sensible way to construe a constitution is the way you construe statutes. What did its words mean when they were adopted? I think we depart from the traditional view of the constitution[sic] at our own risk. Unfortunately, we’ve affected the world with this novel view of the constitution[sic]. Many European countries envy the United States supreme court[sic] because

    In another speech, he cites the division of powers structure built into Art’s. 1 – 3.

  52. Limits to the power of Congress? What have you been smoking?

    Just a Cuban cheroot to go with my rum on the rocks with a twist.

  53. First, congratulations for finding a name for you-know-who’s approach to language. We needed it.

    Second, what needs to be emphasized is that the Constitution is a pact that the first U.S. citizens agreed upon before giving the new federal gubmint permission to rule over them; otherwise, we’d have had 13 separate countries instead of one (assuming no states went ahead and consolidated themselves anyway).

    They codified the terms of the agreement in the Constitution, using a common language (no other medium being available) and a common understanding of the words in the Constitution, and they wrangled and fussed and tweaked the language to make the terms of the pact as clear and unmistakable as possible.

    And the terms of any pact are what they are understood to be at the time of the agreement. To veer away from that understanding is to renege on the agreement. And as well all know, if one party fails to hold up its end of the bargain, the other party is freed from the obligation and the pact is null and void.

    I’ll return to my example of the contract I make with someone to perform a task in exchange for $50,000. After they perform the task and come to me for payment, I inform them that in Europe, they use a comma as a decimal point, so the actual amount is $50, and the $ can refer to Colombian pesos, so I pay them 50 pesos Colombian.

    Which is worth less than the paper it’s printed on.

    I have therefore cheated the other party out of US$50,000, because I got all cute with written conventions, knowing full well how the other party was interpreting “$50,000″.

    And that’s exactly what the “living Constitution” proponents do: renege on the pact that our ancestors made (one that the generations are free to alter according to established procedure). They’re cheaters and power-grabbers, using sophistries and linguistic trickery to fool people into feeling foolish (or racist or backwards or selfish) for not knowing that $50,000 really meant 50 Colombian pesos all along. Or should have.

  54. Clarence Thomas has ruled to the letter quite often, even when it goes against his notions of what good laws are and what they are not, and I appreciate that. Justices are not supposed to make law. Scalia is pretty close to doing it correctly. I’ve seen a few interviews with him where he described his approach and he appears to be doing the best he can, but IMO he has made a few wrong rulings over the years.

  55. You [sic] argument is that somehow the Founders would have wanted to revoke suffrage and civil rights?

    Nishi, I explained this to you a few weeks ago in clear and unmistakable terms, but you’re having much too much fun willfully misinterpreting “intentionalism” and “originalism,” positing that they mean turning back the clock, repealing all the amendments after the first 10, and returning society to exactly the same state as in 1789.

    Language ? society. “Intentionalism” means not getting cute with the language, as I showed in my last. It means honoring the terms of the agreement as both parties understood them when the pact was originally made. It means that if you want to change the terms of the agreement, you go through the process outlined in the Constitution to make the changes.

    If the Founders “intended” that society freeze itself in time, they’d have enumerated exactly that in the Constitution, and there would be absolutely no amendment process.

    But you know that, Nishi, don’t you? Even a moron can understand that it is unjust for one party to arbitrarily change the terms of an agreement without the consent of the other party. Even a cat understands that.

    Your feigned ignorance is an immature means to make the threads all about YOU YOU YOU, the narcissistic eugenicist who validates her existence by plaguing ours.

    You’re an inspiration, Nishi. Bravo. Bravissimo.

  56. It IS a contract, between the sovereign (“WE, the people”) and the federal government they graciously allow to exist.

  57. Sigh. No one wants to argue with me over the Commerce clause.

  58. What would you argue about it Makewi? I like to hear that, just because I expect you know stuff worth hearing, and even if I haven’t got anything useful to counter-argue with you about it.

  59. Makewi, I doubt I’d have an argument for you. I think the overreaches performed with a nod to the commerce clause are a travesty that needs to be rectified with pitchforks and feathers, and perhaps cudgels.

  60. Well I think I would start by arguing that it is far more difficult to argue a strict textualist reading of certain parts of the Constitution, such as the Commerce clause, that are written in such a vague way, and in which one of the actual architects of the founding document uses in a way that leans towards a far more open interpretation of the limits of Federal power then we might be otherwise comfortable with.

    I would also argue that “necessary and proper” clause gives a textualist reading a bit of indigestion as well.

  61. I always find it interesting that those who defend changing the meaning/intent of the Constitution try to claim the world has “changed” and therefore the Constitution needs to be re-interpreted.

    Two problems I see with that:

    1. The people who claim the world has changed are merely talking about the physical. Man and his weaknesses have not changed. The Constitution is designed to protect us against the moral hazard and corruption of an absolutist government. Something our Founding Fathers understand better than most.

    2. Where the law is silent, it is not up to the court to write/bend a law in order to make a decision. Rather, Congress is supposed to write the law. That way, the law, having been created by representatives of the people, should reflect the will of the people.

  62. Well I think I would start by arguing that it is far more difficult to argue a strict textualist reading of certain parts of the Constitution, such as the Commerce clause, that are written in such a vague way, and in which one of the actual architects of the founding document uses in a way that leans towards a far more open interpretation of the limits of Federal power then we might be otherwise comfortable with.

    “More difficult” is not an excuse for not doing it (Thersites made the same argument wrt Finnegan’s Wake, if I remember correctly). And the fact that one of the architects gamed the system just shows that the system can be gamed — something we already knew.

    Yes, it’s true, some concepts are more difficult to pin down in language, making some interpretative gestures more difficult than others. But that’s not the point; the point is that to interpret in the first place, you really need to start by interpreting — not by rewriting.

  63. The court interprets the law based on the circumstances of the case, in a perfect world, or when it is working correctly. In other cases, as with Scalias BS in Raich they seem to just sort of make it up as they go along.

  64. OK then. With only a reading of the Constitution, and the arguments made for and against it, how do you determine what is considered necessary and proper when Congress attempts to act on one of it’s enumerated powers? More, how do you do so when the power is as vague as determining what is required in regulating commerce among the several states?

    I’m not trying to be Thersites here, but those who don’t simply yell racism on my leftward side are likely going to honestly want to know the answers to these. As do I.

  65. I’m pretty sure that the Commerce Clause includes the word “among,” which is like “between” only involving more than two parties. And that the clause was inserted to prevent the states from playing tarrif wars with each other.

    And that the meaning of “among” hasn’t changed in 250 years.

  66. Makewi,

    I would suggest the answer lies in original intent: Federalism.

  67. I have to run to a long meeting in a bit, but I’d just like to throw one other point out there. The law becomes real, so to speak, when it meets individual circumstance, so how do we account for the impact of precedence in a strict reading of the law. In the case of Hamilton, couldn’t it be argued that the precedence of his broad reading of the Commerce clause be read as that being his intention when he helped to craft it?

    I’m very argumentative around here lately. Don’t mean nothing by it. Hope I can be forgiven.

  68. Makewi,

    I don’t find you argumentative at all.

    And you don’t have the tendency to post before you think.

    Unlike some of us. (looking in the mirror)

  69. I’ve dealt with the problem conservative justices have in that they tend, by the nature of their conservatism, to overdetermine stare decisis.

    The answer is to appoint more libertarians to the court. They seem willing to say that a law was read wrong previously and interpret accordingly.

    With only a reading of the Constitution, and the arguments made for and against it, how do you determine what is considered necessary and proper when Congress attempts to act on one of it’s enumerated powers? More, how do you do so when the power is as vague as determining what is required in regulating commerce among the several states?

    I’m not sure how this plays into questions of intentionalism. How do you make any interpretation? You try best to reconstruct the meaning, which comes from collective intent at the moment of ratification (with respect to founding docs).

    This is particularly important in areas where the law seems (especially far removed from its original context) decidedly vague.

    No guarantee you’ll reconstruct the original intent. But you have a better chance the more you inform yourself about the conditions surrounding composition and ratification.

  70. Do the work or don’t.

    No…..that is just crazipants talk.
    Why should I have to work to understand you?
    Why should anyone have to work to understand you?

    The only explanation there possibly is…. is that you are speaking in some sort of code that I don’t have the translation key for.
    White conservative christian grievance code.
    It looks like english but it makes no sense.

    Federalism simply cannot work anymore because the social compact failed.
    No true libertarian is enough of an intellectual contortionist to support religious doctrine instantiated as law.
    You are speaking gibberish.

  71. It looks like english but it makes no sense.

    An apt description of every one of Nishi’s posts.

  72. Uh oh! Nishi lost it’s decoder ring.

  73. A science fiction analogy. For some.

    A writer thinks up/designs a universe in which he sets his stories with his characters. It is successful. He decides to allow other writers with certain qualifications and under certain restrictions to also write stories in this now “shared universe”. These stories fill in gaps in the “original canon” and perhaps extend it into new territory. All these stories together are the “canon“.

    Enter the fans, writing their own unofficial works in that universe. Some of which are similar to the official shared universe stories in that they adhere to the canon.

    Others may though adhering to the canon add certain ideas as an expansion of the canon and be such that most fans take these additions to be almost canon, this is “fanon”.

    Then we come to writers who explore alternate universes, realities, timelines. These stories, which may be well done or not, change the original canon into whatever the writer wishes it to be for their own story reasons. Stories that share perhaps many or only a few details with the canon. Stories which have nothing in common with the official canon except the names of main characters or places.

    Now take the Declaration of Independence, the Federalist Papers, and the Constitution and Bill of Rights as the original author’s stories.

    The amendments added later as the stories by the official “shared universe” writers.

    Originalist judicial decisions as canon fanfiction.

    Texturalist decisions as fanon writings.

    For the rest, the “Living Constitution” fans are writing AU, AR, AT. Some of it verging on SI and PWP in how far from the original they stray.

  74. Nishit the genocidal eugenecist is out to try to out-krazy nishit.

  75. Why should anyone have to work to understand you?

    this happens when progg brain is the default fetal position

  76. Federalism simply cannot work anymore because the social compact failed./i>

    Let’s blow shit up.

  77. starting with italics code thingies

  78. Why should I have to work to understand you?
    Why should anyone have to work to understand you?

    Because they’d like to understand me.

    If they don’t, they won’t.

    Gibberish though it ain’t.

  79. From reading in Madison’s notes, an encounter with Mr. A Hamilton, speaking in Convention on June 26, 1787:

    […] He acknowledged himself not to think favorably of Republican Government; but addressed his remarks to those who did think favorably of it, in order to prevail on them to tone their Government as high as possible. He professed himself to be as zealous an advocate for liberty as any man whatever, and trusted he should be as willing a martyr to it though he differed as to the form in which it was most eligible. — He concurred also in the general observations of [Mr Madison] on the subject, which might be supported by others if it were necessary. It was certainly true: that nothing like an equality of property existed: that an inequality would exist as long as liberty existed, and that it would unavoidably result from that very liberty itself. This inequality of property constituted the great & fundamental distinction in Society. When the Tribunitial power had levelled the boundary between the patricians and plebeians, what followed? The distinction between rich and poor was substituted.

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  81. Why should I have to work to understand you?
    Why should anyone have to work to understand you?

    Good god, maybe so you/they can learn something as opposed to simply repeating noises and written word-forms – which suggests the unsurprising conclusion that you, nishi, have never learned anything. Not a fucking thing.

    But, hey, maybe you can still sue!

  82. @81

    This never would have happened if they hadn’t made a law.

    Like apprehending arsonists or thieves or rapists: decriminalize that stuff and you wouldn’t have to worry about them turning violent on you when you go to stop them for having a burned out tail light or some such.

    LIBERTY!

  83. On the question of “necessary and proper”, I wonder Makewi, if it doesn’t amount to a parallel in government to Hobbes’ suggestion here about an individual and little else:

    [VII] […] Therefore the first foundation of naturall Right is this, That every man as much as in him lies endeavour to protect his life and members.

    VIII. But because it is in vaine for a man to have a Right to the end, if the Right to the necessary meanes be deny’d him; it followes, that since every man hath a Right to preserve himself, he must also be allowed a Right to use all the means, and do all the actions, without which He cannot Preserve himself.

  84. Why should I have to work to understand you?

    Capitulation by interrogatory. Sweet.

  85. late to this thread: contracts are interpreted by the courts according to the language in the contract and how that language follows the defintions that have been defined for contracts.

    Lawyers are very conservative about the definitions of words. Words signify intent, and that is closely followed.

  86. There are some problems with applying contract law principles to Constitutional interpretation. This practice representes, i think, the source of “textualist” thought. In contract law, the intent of the contract is not at issue. Contracts are to be interpreted only by the “plain language” maning of it’s terms and “reasonable man” understanding of them, the only exception being where the contract itself specifies the meaning of the term (though that definition is still subject ot “textual” parsing).

  87. An interesting comparison sdferr, but one that leaves me with 2 thoughts. First, Any comparison of the individual rights of man as supposed by Hobbes with the “rights” granted to a government must run into the problem that while individual rights do not necessarily abrogate the rights of others, a government exercising it’s power more often than not does. Second, and more in line with how one determines the meaning of the words, is not what constitutes a necessary and proper action required to carry out an enumerated power likely to be considered differently from one person to the next?

    Very interesting notes on Hamilton, BTW. Never read that before. Those two are the reason we have the form of government that we do, at least as to how the form was put into words, more so than any others. I know they had a falling out later in life, but had always thought them close in philosophy around the time you reference. So interesting, to say the least.

  88. RTO —

    Sure. When I speak of it being a convention to follow conventions in contract law, that’s what I’m getting at. I just wanted to fill in how intent is doing the work in those situations, and the danger with extrapolating out from the easy conventional readings in contract law other types of interpretation without understanding what it is you are actually doing.

  89. But….everything Jeff says about originalism and intentionalism is useless and irrelevent.
    The original social cohesion compact is destroyed, blown up.
    As long as all conservatives can do is rage against their percieved dark, conservatism is doomed.
    A new social cohesion model is evolving in America that reflects american electoral demographics.
    That is how representative government.
    It might make you feel good to quote Levin and Hamilton, but it is cheerleading for failed antique paradigms.
    You cannot stop cultural and demographic evolution, but you could be working on strategies to exploit it in your favor.
    Instead of lighting a candle you rage against the dark.

  90. But….everything Jeff says about originalism and intentionalism is useless and irrelevent.

    How would you know? You’ve already as much as told everyone here that you don’t follow what I’ve written?

    Quoting Levin and Hamilton has nothing to do with feeling good or cheerleading. It has to do with generating discussion. A discussing you are ill-prepared to participate it in (given your stated inability to figure out what’s being discussed). Hence the title of the post.

    Do try to keep up.

  91. But….everything Jeff says about originalism and intentionalism is useless and irrelevent.

    Unless a substantial number of Supreme Court justices think likewise. Then, it seems incredibly relevant, and progressive heads explode.

    Or, how about another example: the incoming cohort in the House and Senate contain a substantial number of originalists. Irrelevant? Impossible? Likely?

  92. hey, Nishi:

    Why should I have to work to understand you?
    Why should anyone have to work to understand you?

    The only explanation there possibly is…. is that you are speaking in some sort of code that I don’t have the translation key for.
    White progressive secular grievance code.
    It looks like English but it makes no sense.

    Peach buffalo in squirming tub visiting hollow beverage.
    Trombone pleasantry? Noodle lengthening putty service of rewinding magnitude. Scrumptious tongue mystery hat. Tomahawk, tomahawk! Aluminum monkeys festering in polyunsaturated deckhand.
    You are speaking gibberish.

  93. “An interesting comparison sdferr, but one that leaves me with 2 thoughts. First, Any comparison of the individual rights of man as supposed by Hobbes with the “rights” granted to a government must run into the problem that while individual rights do not necessarily abrogate the rights of others, a government exercising it’s power more often than not does. Second, and more in line with how one determines the meaning of the words, is not what constitutes a necessary and proper action required to carry out an enumerated power likely to be considered differently from one person to the next?”

    Makewi, I suppose I think of the enumerated powers preceeding the “necessary and proper” language as I might “ends to be sought” or that for which the necessary and proper is to be done, rather than as rights as such, and rather than the necessary and proper measures as things done for their own sake. On the other hand, your observation “that while individual rights do not necessarily abrogate the rights of others, a government exercising it’s power more often than not does” strikes me as entirely correct, though this is not news, either to us nor to the founders, who repeatedly recognize the fact and state it explicitly and forthrightly.

    What I liked best about the Hamilton quote, supposing him correct, is the corollary to this clause “that an inequality would exist as long as liberty existed, and that it would unavoidably result from that very liberty itself“; namely, that where we see attempts to achieve equality, we are very likely to see at the same time attempts to diminish liberty.

  94. okfine…mybad.
    when i said i said don’t understand YOU i meant i understand neither your purpose or your intent.
    if your intent is to persuade you are not persusive.
    if your intent is to flesh out alternative viable strategies, then you are unsuccessful, those strategies are deader than the dinosaurs you increasingly resemble.
    if your intent is to describe a snapshot of what 250 year old american political elites thought at the time, then i DO understand.
    this is a history lesson.
    the supreme court is never going to be taken over by an originalist insurgency.
    what’s your point?

  95. you seem to think that “originalism” is some virtual political/spacetime “door to december” and you can push or drag America into some idealized past.
    originalism as the door to the 19th century is a myth.
    we can’t time travel to the past.
    Dr. Carroll said so.
    :)

  96. Makewi, found an online source I hadn’t been aware of (have a hard copy here at home) which, hoorah! Hamilton’s full remarks on the day in question can be found here (scroll down).

    This is a bookmarker for those who collect source materials.

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  98. Condensation would lead to more traffic.

    I don’t think Jeff gives a shit about traffic. I mean, it’d be nice, I think, but he’d just as soon not whore himself out to the general public like that Pa-

    Oh. Someone’s stalking you again, Jeff.

  99. if your intent is to persuade you are not persusive.
    if your intent is to flesh out alternative viable strategies, then you are unsuccessful, those strategies are deader than the dinosaurs you increasingly resemble.

    I may not be persuasive to you, but then, I’m more actively going after the thinking crowd.

    As for fleshing out “alternative viable strategies,” again, you show your ignorance. I’m pointing out what is. And why it is.

    You can label me a dinosaur for refusing to play along with the “let’s see if we can hide the brushstrokes and then watch what happens as a result!” crowd of narcissists, but I’m okay with that.

    Because I have no respect for that crowd, and I’m going to continue to point out how and why they are wrong.

  100. you seem to think that “originalism” is some virtual political/spacetime “door to december” and you can push or drag America into some idealized past.

    Where do I say or imply any such thing?

    Oh, that’s right. I don’t.

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