Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Politico has an article about the American Constitution Society and how Obama's election has brought this group to the forefront. The ACS is the liberal answer to the Federalist Society, which was founded by conservative law professors and scholars to help train the next generation of attorneys and influence the public debate over legal issues. Like the FedSoc, the ACS has chapters at most major law schools and sponsors many conferences.
As the article notes, Obama has many ties to ACS, which is hardly surprising:
Sixteen appointees and advisers helping president-elect Barack Obama's Justice Department transition efforts all recently sat on the board of an organization little known outside legal circles: The American Constitution Society for Law and Policy.The liberal legal network, which blossomed during eight years of Democratic exile, counts as its veterans Obama's choice for attorney general, Eric Holder: Vice President-elect Joe Biden's chief of staff, Ron Klain; and future White House Staff Secretary Lisa Brown.
Seven other recent board members are advising the incoming administration on legal, education, and labor-related issues. Theresa Wynn Roseborough is rumored to be a top candidate for solicitor general. And, at least two other members were also rumored to be in the running for key Cabinet posts.
The ACS links also reach far into Obama's past legal career. Harvard University law professor Laurence Tribe, a member of the ACS Board of Advisors, taught Obama constitutional law and later advised his campaign on legal issues. Geoffrey Stone hired the president-elect for his first teaching post at the University of Chicago law school. And Abner Mikva, who first met Obama at the University of Chicago, was a political mentor during the president-elect's failed bid for Congress in 2000.
"It's a natural thing to see that the administration would tap people who are aligned in some sense with this vision," said the society's incoming Board Chairman Goodwin Liu, noting that the group is "not in an intentional way a staging ground for campaign workers or people who are going to work in the administration."
This mirrors almost exactly the role that the Federalist Society has taken in conservative administrations, acting as a sort of unofficial steering committee and a feeder system for appointments in the Department of Justice and the federal bench. Chief Justice John Roberts and Justice Samuel Alito both rose through the ranks, as have many others, largely through association with the Federalist Society.
Politics
Comments
OK, so he's got a liberal equivalent to the Federalist Society... what college is going to fill the role of Patrick Henry College?
Posted by: Herod the Freemason | January 2, 2009 9:38 AM
So I am sitting here wondering whether these groups are a net plus or a net minus for politics and the country as a whole. The one thing that seems clear is that once the conservatives created the Federalists Society the liberals had to answer it.
Posted by: Don | January 2, 2009 9:45 AM
The Federalist Society is bankrolled by sick-fuck right-wing greedfuck billionaries. What about ACS? Are there left-wing greedfuck billionaires pumping in cash?
Posted by: Comrade PhysioProf | January 2, 2009 10:54 AM
The real world sucks in so many different ways it's hard to keep track.
Posted by: James Hanley | January 2, 2009 11:35 AM
Though I often disagree with the individual constitutional interpretations of the republican dominated Federalist Society at least they claim that the constitution actually means what it says.
The American Constitution Society is dominated by proponents of a philosophy that views the constitution as a living document that can be interpreted to fit the needs and demands of an evolving society.
I find this idea to be fraught with the possibility of judicial excess not too mention absurd on its face. If you can decide that the constitution's words can be twisted to mean whatever you think they need to mean to fit the needs of an evolving society you have untethered the document from its foundational legitimacy and have placed it's protections of fundamental rights at the mercy of the judiciary and those that appoint them.
The advocates of this interpretation deride the super majority needed to amend the constitution as a tyranny placed on current and future generations by the framers. This glaring inconsistency highlights the fact that they wish to empower the judiciary with powers clearly beyond the
scope of their constitutional limits.
The framers new well the possibility of the tyranny of the majority and never meant for the constitution to be a weak document subject to the whims of the majority of the day.
I find it exceedingly disturbing that Barack Obama has embraced so many members of this organization that hold this dangerous view of the constitution.
If this is how he plans to bring change to our country I wonder at what price?
Posted by: Lance | January 2, 2009 2:38 PM
Right, the U.S. Constitution isn't a living document; therefore all African-Americans are 2/5 of a person and I get to start purchasing them. And only Senators can vote for President. And only people who own property can vote for Senators. Sounds great!
Posted by: jws | January 2, 2009 3:05 PM
Lance, can you give specific examples of what you're talking about? I understand what you're saying in theory, but it sounds a bit like "judicial activism", which some people only raise when the courts disagree with them. You say you have disagreements with the Federalist Society over individual constitutional interpretations. Is one man's "constitutional interpretations" another man's "twisting the words"?
Posted by: Taz | January 2, 2009 3:11 PM
Lance is stuck in a false dichotomy. Yes, there are some who do take the position he describes, but belonging to the ACS is not an indication that someone takes that position. It is not a simple matter of either believing in conservative originalism or believing in a "living constitution." There are lots of other possible interpretive modes, including the liberal originalism advocated by libertarians like Barnett and political liberals like Balkin, that go far beyond those two (both overly simplistic) ideas. And of course, conservative originalism is no less prone to precisely the kind of subjective judgments he criticizes. Scalia's concurrence in Raich is a textbook example. Conservative originalists are no less likely to read their political preferences into their constitutional interpretations than liberals are, and in some areas they may be decidedly more likely to do so.
Posted by: Ed Brayton | January 2, 2009 3:20 PM
jws wrote:
This is not a coherent answer to Lance's argument. Those things were changed by constitutional amendment, not by judicial reinterpretation. The kind of originalism he is arguing for does not argue that the constitution could never be amended; it argues that it should be amended rather than merely reinterpreted. There are lots of other good answers to that position, but yours is not one of them.
Posted by: Ed Brayton | January 2, 2009 3:23 PM
jws,
The thirteenth amendment, ratified on December 6th 1865 officially abolished slavery. The constitution didn't "evolve" or get "interpreted" to end it. The other issues you mention are equally invalid but a bit more nuanced.
The seventeenth amendment specifically states that senators are to be elected by the "people" of the state. The term "people" has expanded from the original meaning but that is because of artificial limitations imposed by slave holding states on the original text and is addressed in the following amendments.
The fourteenth amendment further outlined the definition of "citizen" and their rights of equal protection under the law.
This was followed by the fifteenth amendment that ended voting restrictions based on race.
Also the nineteenth amendment affirmed the right of women to vote.
So your argument falls flat on all points since all of these issues were addressed by the amendment process not by "reinterpreting" the original text as a "living document".
Posted by: Lance | January 2, 2009 3:47 PM
Hi Lance,
I just heard this morning a quote from Obama, reading from one of his books, noting that even the Founding Fathers at the time did not agree amongst themselves what the words of the Constitution actually meant. His question to "strict constructionists" is, if they could not agree, how are we expected to agree today what the words meant back then?
Second, I heartily agree with jws. The Constitution must not be a "static" document. If it remains static, then it must eventually begin to fail to be relevant. Take the eighth amendment as an example. What does, "cruel and unusual punishment" mean? It's not defined in the Constitution. It is intentionally left ambiguous. Punishment that would be considered normal in 1780 might be considered "cruel and unusual" today. What does "excessive fines" mean? Given inflation, fines that would be considered normal today would be exceedingly excessive in 1780.
The norms of Society change. The world changes. Knowledge and "facts" change. Technology changes. (Consider how instant communication effects "privacy", or how the Internet effects the meaning of "the press" in the First Amendment.) If the interpretation of the Constitution cannot change to accomodate these new realities, then how can it not cease to be relevant?
Yes, the Constitution can be amended, and should when necessary. But the courts have to deal with cases that come before them on a daily basis, and cannot always wait for the legislatures to get around to making new laws to deal with new situations. The courts are forced to interpret the law, even the Constitution, and apply that interpretation to entirely novel situations. Who "forces" them? The very citizens that bring complaints and questions before them. If the courts get it wrong, then it's up to the legislatures to correct them. But until then, someone has to make those judgments. That's what we the Citizens require judges to do every day. Who gives judges that power? We the people.
Posted by: Scott | January 2, 2009 3:50 PM
Ed,
"Lance is stuck in a false dichotomy. Yes, there are some who do take the position he describes, but belonging to the ACS is not an indication that someone takes that position."
Really? If you go to the ACS website and check the link labeled Constitutional Interpretation and Change you will find the following,
"Ideological conservatives have been quite successful in promoting neutral-sounding theories of constitutional interpretation, such as originalism and strict construction, and in criticizing judges with whom they disagree as judicial activists who make up law instead of interpreting it. The Constitutional Interpretation and Change Issue Group works to debunk the neutrality of those theories and expose misleading criticisms. It also articulates effective and accessible methods of interpretation to give full meaning to the guarantees contained in the Constitution."
This is clearly an assault on the originalist and constructionist interpretations of the constitution. While this doesn't constitute an outright endorsement of the "living document" interpretation it is clear by reading the publications of the people listed as the Issue Groups co-chairs that they are proponents of this constitutional philosophy.
Also the fact that originalists can abuse the text of the constitution is no defense of those that argue for an a priori dismissal of the original text as is advocated by "living document" proponents. It is just a straw man argument of the "Billy did it too!" variety.
Posted by: Lance | January 2, 2009 4:19 PM
Obama's actions during the transition have been a mixed bag for progressives. This is an encouraging sign.
Posted by: Raymond Minton | January 2, 2009 4:27 PM
Scott,
Obviously I am not arguing for so strict a constructionist interpretation as to render the federal courts perfunctory and impotent. That said I do argue that the original intent of the constitutional language must be preserved.
Also your post ignores a very real but seldom exercised judicial option and that is to say that the constitution is silent on a particular issue. Many of the most contentious of social issues now decided by the federal courts should, in my opinion, be turned away by the federal court system and returned to the legislatures to whom the constitution gives authority to write our laws.
Posted by: Lance | January 2, 2009 4:34 PM
Lance wrote:
"Ideological conservatives have been quite successful in promoting neutral-sounding theories of constitutional interpretation, such as originalism and strict construction, and in criticizing judges with whom they disagree as judicial activists who make up law instead of interpreting it. The Constitutional Interpretation and Change Issue Group works to debunk the neutrality of those theories and expose misleading criticisms. It also articulates effective and accessible methods of interpretation to give full meaning to the guarantees contained in the Constitution."
This is clearly an assault on the originalist and constructionist interpretations of the constitution. While this doesn't constitute an outright endorsement of the "living document" interpretation it is clear by reading the publications of the people listed as the Issue Groups co-chairs that they are proponents of this constitutional philosophy.
This is almost as clear an example of a false dilemma as that asserted by the creationists who argue "X disproves evolution, thus creationism must be true." Not to mention that Lance has mischaracterized both the views of the "living Constitution" proponents and the ACS.
Posted by: Kenneth Fair | January 2, 2009 4:57 PM
Ed,
While I find Balkin's liberal originalism appealing it doesn't take much reading to see that he uses this term as a cover for a "living document" approach.
An example he uses is that the author's of the 14th amendment didn't feel that it gave protection for inter-racial marriage (an issue close to my own heart being a white guy married to a black woman). This isn't however an argument against originalism since the words of the document are not what was twisted to use the 14th amendment to protect the rights of inter-racial couples.
On the contrary it was twisting by the people of the day to not apply this protection to inter-racial couples. It was the more straightforward application of the actual words of the amendment that allowed it to protect these citizens.
Also had the words of the amendment specifically forbade such unions it would have taken an amendment to reverse it. To pretend otherwise is to completely delegitimize the document and divorce it from reality.
The other co-chairs of the Constitutional Interpretations and Change Issues Group, Pincus and Brown, are more outright proponents of the "living document" interpretation which is evidenced by even a casual investigation of their writings on the subject.
While I actually comport with many of the social goals of this group I recoil from any attempt to decontextualize the US constitution. This is a very dangerous business and is fiddling with the very DNA of our constitutional republic.
If the words of the document become so out of step with the needs of the republic the obvious remedy is the amendment process. I am always extremely suspicious of people that wish to make an end around this most basic, if logistically difficult, answer to mismatches between the words of the constitution and the "needs" of the citizens it is meant to protect.
Posted by: Lance | January 2, 2009 5:07 PM
Kenneth Fair attempts the science blogs equivalent of Godwin's Law by attempting to link my arguments to those of creationists.
Talk about irrational, not to mention slimy.
Posted by: Lance | January 2, 2009 5:11 PM
More importantly, does anyone know if the ACS has any greedfuck billionaire backers? Cause if they don't, then none of this matters at all.
Posted by: Comrade PhysioProf | January 2, 2009 5:12 PM
Lance wrote:
The idea of preserving the "Original intent" of the Constitutional language can also lead to judicial excess and often contrary rulings by the court. The Constitution's language can also be twisted to fit any idea of what "original intent" is just as proponents of a "living constitution" can do.
Posted by: Goldbrick4 | January 2, 2009 5:13 PM
Goldbrick4,
As I said to Ed the fact that originalists can also play games with the wording of the constitution is not an argument for decoupling the words from their original meaning.
I find the whole idea that the words can be divorced from their original intent or that there are some unexpressed ideas "hidden" in the text to be dubious at best and dangerous at worst.
If the original intent of the passage or amendment is now obsolete then the constitution should be amended, period. Twisting the words to fit some new purpose is not the answer, unless your intention is to circumnavigate the amendment process.
Posted by: Lance | January 2, 2009 5:28 PM
Talk about ducking into the punch. I wrote:
And Lance absurdly responded:
First of all, there is no such thing as the "constructionist interpretation" of the constitution (nor really even such a thing as a "strict constructionist" interpretation; that is little more than a catchphrase at this point). But you seem to have missed the point entirely. I accused you of engaging in a false dichotomy by presenting "originalism" or "living constitutionism" as the only two possible modes of constitutional interpretation. And to prove my point, you quote an ACS page criticizing originalism and say, "Aha! You see? They must be advocating living constitutionism!" You could hardly have proven my point for me if I'd written your response for you.
Of course those associated with the ACS tend to be critical of conservative originalism; they do, after all, tend to be political liberals. But that is hardly the point. The point is that you merely presented two simplistic and ill-defined catchphrases as the only two positions one could possibly hold on the subject and that betrays a serious ignorance of the issue. The notion of a "living constitution" that can be interpreted to mean anything a judge would like it to mean at any given time is, in fact, fairly rare in legal scholarship. Yes, some people do refer to the constitution as a "living document" but that can mean any number of very different things; it does not necessarily mean that one believes that constitutional interpretation should be entirely divorced from history or from textual meaning - indeed, people who believe that are quite rare, despite the dishonest and hypocritical accusations that come from people like Antonin Scalia (who, as I pointed out above and have demonstrated many times, is in fact just as likely as those he criticizes to mold his theory of interpretation to reach the outcome he desires in a case). The number of possible ways of interpreting a given constitutional provision is vast, even within the boundaries of conservative originalism, where you have, for example, original intent, original public meaning and original expected application, just for starters. It simply is not as simple as originalism vs living constitutionism, no matter how many times you stomp your feet and declare it so.
Well this depends entirely on which type of originalism you are using to interpret the 14th amendment. By any of the three types of conservative originalism - original intent, original public meaning or original expected application - the 14th amendment cannot legitimately be interpreted as preventing state laws banning interracial marriage. Period. There is no way to take a conservative originalist position and have it lead to the equal protection clause striking down miscegenation laws. You can get there in several other ways, including liberal originalism, which is what Balkin is advocating (it's also what I, Randy Barnett, Tim Sandefur and others advocate). The position you are asserting is the liberal originalist position, whether you recognize it as such or not - the application of the principles expressed in the text where those principles logically apply rather than to only those circumstances where those who wrote those words and voted for the act would have wanted them to apply.
I do not advocate living constitutionism. I think liberal originalism is the best alternative to it. But I can certainly recognize that there are two logical fallacies at work here - a false dichotomy being offered by you because you have fallen for a straw man argument from conservative originalists that they have the only alternative to the notion of a living constitution.
Posted by: Ed Brayton | January 2, 2009 5:49 PM
Lance,
I agree with you that the Constitution should not be construed to find any unexpressed and hidden ideas, I however can't agree with you that the words in the Constitution must coupled with an "original meaning". The "original meaning" of the free press clause in the first amendment, for example, reinforced the view that the government cannot place "prior restraints" on the printing of news papers etc, but publishers could be liable libelous words, including seditious libel, after printing. This "original meaning" of the 1st amendment's free press clause would be contrary to the meaning of the clause in our day.
Posted by: Goldbrick4 | January 2, 2009 6:11 PM
Posted by: James Hanley | January 2, 2009 8:17 PM
It seems to me that constitutional originalism and biblical literalism have a lot in common. Both seek to erect a set of moral rules that are outside of and extraneous to the facts of reality. Scalia's views on constitutional originalism are identical to the fundamentalists views on divorce. Divorce is strongly prohibited by the bible and yet fundamentalists have the highest divorce rate of any group. The rule against divorce is ignored because it doesn't fit with the facts of reality. When reality collides with fantasy (like a world filled with happy marriages), reality always wins. Like other fundamentalists Scalia happy to ignore the "plain meaning" of the constitution when it conflicts with the reality of his goals.
Posted by: Susan Brassfield Cogan | January 3, 2009 9:53 AM
Ed,
You totally ignored my appeal to the writings of Brown and Pincus as evidence of their adherence to the "living document" interpretation, while making insulting asides to my post being "absurd". Perhaps you could do a little research on the actual written opinions of these key ACS members before insultingly dismissing my points.
While Balkin attempts, unsuccessfully I believe, to construct a hybrid that is neither fully constructionist nor "living document" per se, Pincus and Brown make no such equivocations.
Also your attempt to marginalize my points as a "false dichotomy" is undermined by the fact that Brown herself, in her June 2007 paper "Self-government, Change and Justice" identifies "two models of interpretation" although she prefers to call the origninalist theory the "Process model" and the "living document" theory the "Substance model".
You have also avoided discussion of the obvious remedy to a constitutional passage being "out of step" with the "needs" of current society, the amendment process.
If the original text and intent of a part of the constitution is not in harmony with modern society the framers provided a remedy, the amendment process.
If fealty to this original text and intent were to cause so dire a conflict with modern sensibilities it should be possible, and advisable, to change the offending text by means of an amendment.
If indeed the amendment were to fail then there was not sufficient popular sentiment to change it.
If, like Brown, you find the process too onerous then perhaps you should ask yourself why the framers made it so difficult.
The obvious answer is that they meant for the constitutional protections afforded by the document to be difficult to change and that they would hardly approve of the disingenuous process of "interpreting" away the original text and meaning.
Posted by: Lance | January 3, 2009 1:07 PM
Susan Brassfield Cogan,
There is a huge difference between the Bible and the US Constitution, one is (allegedly) revealed eternal truth and the other is a legal document that provides a way to change it if it becomes out of step with the needs of society.
Also the opinions and writings of the actual authors of the US constitution are, in most cases, readily accessible.
If you don't like what the Bible says, about divorce or whatever, you have to try to interpret it in a favorable light or deal with the fact that you are not in harmony with its text.
If it turns out the US constitution is putting a damper on your lifestyle you can change it, given that you can convince your representative in congress to introduce an amendment, get it passed by a 2/3 majority of both houses and ratified by the legislatures of 38 states.
If you can't then why should your "needs" usurp the protections outlined in the document that governs our society?
Posted by: Lance | January 3, 2009 1:25 PM
Lance wrote:
Brown and Pincus may well be advocates of the notion of a "living constitution." I have no idea, since I've not read their scholarship. But it doesn't matter. I didn't deny that there are those who advocate that idea who are associated with the ACS, as I'm quite sure there are. My point, which you continue to prove, is that you're making a false dichotomy between originalism and that idea as if they were the only two possibilities and that is absurd.
You keep using this term "constructionist." I do not think it means what you think it means. And again, Pincus and Brown are not relevant. Even if they do think exactly what you think they think, it does not change the fact that you have an incredibly simplistic view of the possible modes of constitutional interpretation.
Again, you reveal your ignorance of this subject. What she is calling the process and substance models are really just different terms for two basic categories of interpretive thought that go by the names of legal formalism and legal realism. While they aren't the only two categories, most major forms of interpretation are generally fit within those two categories. The various forms of originalism are types of legal formalism, while living constitutionism is a type of legal realism. But within each of those categories there are a number of different and exclusive modes of interpretation and few judges or legal scholars fit easily within them (even those, like Scalia, who pretend to). While it may be true that those categories correspond roughly to political breakdowns, conservatives in the legal formalism group and liberals in the legal realism group, there are some prominent and obvious exceptions to that rule (and I am one of them, as are Balkin and Barnett). My point, from the start, has been that you are drastically oversimplifying the issue. And so you are.
How have I avoided it? I responded to another commenter saying precisely that. That has nothing to do with the issue at hand. You continue to be trapped inside this false dichotomy and you presume me to be arguing for the position that you oppose. That's false. I am, in fact, an originalist, I just don't fit into those simple categories you insist are the only two possible labels one can have. I actually don't believe that there must be a conflict between legal formalism and legal realism. And I agree with you that if believing in a "living constitution" means that we can be Humpty Dumpty and pretend that the text of the constitution means whatever we want it to mean at any given time, we have subverted the very notion of having a written constitution. You're right about that. What you're wrong about is assuming that anyone who is not a conservative originalism is doing that and in believing such a thing is the only alternative to some form of strict constructionism. It isn't. There are all sorts of intermediates in between those two extremes. You have a cartoonish understanding of constitutional interpretation, where one side wears all black and the other side wears all white. Sorry, the real world is much more complex than that.
Posted by: Ed Brayton | January 3, 2009 2:03 PM
Lance said:
Please explain how John Marshall was able to create a judicial power out of whole cloth in Marbury, at a time when most of the delegates to the Constitutional Convention were still alive and several on the Supreme Court? And that is not the only case from the Federal period where the Supremes ignore an Original Intent approach. The Charles River Bridge cases sure look like a "Living Constitution" in action, no? I'm not supporting that as the correct interpretation, by the way, just pointing out the process began very early, often involving the Founding Fathers themselves.
Posted by: kehrsam | January 3, 2009 2:35 PM
Isn't it a good idea to have groups that try to solve similar problems from different angles? Like, say, a liberal version of The Federalist Society. Certainly the conservative group has been busy interpreting the Constitution in terms of the needs of a rather muddled republic for some time now. A fresh point of view, whether popular and informed or not always adds something to the mix.
It would be best, of course, that any such groups would be as well versed in the talents that guided the authors of the Constitution. That is a tall order and one not frequently observed.
Ours is a participatory form of government, the seat of power clearly established as being the citizenry at large who choose the individuals who will speak for them in task of keeping ourselves intact as a people.
Now, if we could have just a few more of these societies advocating the use and care of the Constitution and if the citizens could be engaged to a greater degree, then perhaps something good might come of it. Perhaps not. But recall that a major testing ground for the form of our governance was the open field of debate. This nation learned the value of ideas when it was ideas as much as weapons that created us in the first place.
So I like the idea of the ACS and the ascendancy of one of its own to the highest office in the land. If nothing else, it may get more people thinking and talking about history. It may motivate more people to get a pocket copy of the founding documents and read them through. Maybe then, more of them will be able to better parse the words they hear from leadership.
I'm a durm-beater for neither the cons nor the libs. My experience is that very few people are not some amalgam of both with admixtures of astonishing things. That alone is enough to keep us busy for a long time.
Far above, Lance wrote:
My first thought was, "Well, it (the document) would rather have to be, considering the changes we've been through in the last two and a third centuries, wouldn't it?"
My second thought was, "Yes, but like any good resource it requires careful and attentive husbandry. Just ask any farmer."
So I consider it a potential good for the nation to engage itself in debate and I'm happy to learn that voices with possibly different and challenging ideas have an opportunity to join the fray and be widely heard.
Here's to level heads and thorough debate. (if such a thing is possible!)
E Pluribus Unum
Posted by: Crudely Wrott | January 3, 2009 2:51 PM
Ed,
The point of this thread, as I understood it, was that the ACS was gaining influence in the Obama administration. I pointed out, in my first post, that this organization is dominated by people that adhere to the "living document" interpretation of the US constitution.
I pointed out that the ACS has a Constitutional Interpretation and Change Issue Group and that this group is co-chaired by Balkin, Pincus and Brown. While it is certainly true that any issue as complex as constitutional interpretation is nuanced and multi-faceted this groups webpage, which I quoted, lists the purpose of this group, itself part of the ACS, partly as " ... to debunk the neutrality of those theories (listed above as originalism and strict constructionism) and expose misleading criticisms. It also articulates effective and accessible methods of interpretation to give full meaning to the guarantees contained in the Constitution."
So this group is an official part of the ACS, and it is specifically against the originalist and constructionist interpretation and when you read the writings of the co-chairs, the idea that the constitution must be interpreted by the people of the current day in their own terms to meet their own needs, one can be forgiven perhaps for summarizing this interpretation as advocating a "living" constitution.
I'm not sure exactly what part of my argument you are attempting to refute, although perhaps ridicule is a more fitting description.
Also I am puzzled why you constantly feel the need to resort to insulting terms like "ignorant" "cartoonish" and "absurd" in your replies to me.
If you feel that my understanding lacks nuance then say so and illuminate the subtleties you feel that I have missed.
If you feel that my argument is uninformed in regard to a region of the discourse then perhaps you can outline the information I am missing or perhaps annotate it so that I may investigate it further.
Your appeal to these bullying terms adds little to the substance of your replies and serves only to cast them in a voice of intolerance and ill-temper.
I am reminded of an exchange we had when the Texas State Police seized the entire juvenile population of a certain religious sect. You treated my arguments that the authorities had overstepped their constitutional authority with similar contemptuous speech.
Since that time the courts have agreed with me and condemned the actions of the state authorities and all of the children have been returned. Perhaps that experience might serve to temper your inflammatory rhetoric and lead you to answer my points without resort to such caustic flourish.
Posted by: Lance | January 3, 2009 3:00 PM
Lance wrote:
No, you asserted that. What you haven't done is supported it. You ducked directly into the punch when, rather than showing that they support the notion you are condemning, you quoted them condemning originalism. Again, that is the very false dichotomy I am accusing you of. And because you still haven't figured out how irrational you are being, you did it AGAIN:
Well yes, they are critics of conservative originalism. But one of those three, at least, is NOT an advocate of living constitutionism, he is an advocate of liberal originalism. That alone disproves your absurd and simplistic dichotomy. To add more proof to it, you made an argument that is, in fact, a liberal originalist argument (you're just too ignorant to recognize that fact).
If you don't want to be called a fucking idiot, stop being a fucking idiot.
Posted by: Ed Brayton | January 3, 2009 3:11 PM
Ed,
I believe your "parting shot" during our discussion of the Texas State police seizures of the children of the religious sect went something along the lines of your last sentence. You have yet to acknowledge your completely discredited and overly emotional assessment of that situation.
You seem to prefer acting the bullying buffoon and marching on as if you were right all along.
Some people never learn.
Posted by: Lance | January 3, 2009 3:50 PM
Lance: I think many people miss the point of the "living document" approach. The Constitution grants Congress the right to regulate commerce between the states, but what does that mean? It is up to Congress, the Courts, and the Executive to decide what it means. The Constitution establishes the Supreme Court's Jurisdiction widely, but it was Marbury v. Madison that interpreted Article III to include judicial review. The Constitution declares the President the Commander in Chief, but the powers of that office, not dileniated in the document, are left up to us to decide, enforce, expand, or contract.
I could go on but my point is this; the Constitution is a foundation; it provides guidelines and, along with the Amendments know as the Bill of Rights, demands certain rights for the people and certain forms for government. But it does not, as many European constitutions do, try to lay out how everything will work, precisely; it leaves the details to be decided by those actually faced with the realities of the world, through compromise and conflict. When people talk of a "living document" this is often what they mean, not the empty, self-serving sophistry which it is often depicted as.
Posted by: Julian | January 3, 2009 11:53 PM
That should be "known".
Posted by: Julian | January 3, 2009 11:56 PM
Since when did the "Founding Fathers" (what a bullshit label; as if we're talking about Jerome and Anselm) attain god-like status with superhuman abilities to legislate for folks living two or three or four or five or ten centuries hence? Jingoism knows no bounds...
Posted by: jws | January 4, 2009 12:34 AM
Julian,
I completely agree with you. The constitution is not meant to be a rigid set of boundaries but a framework upon which the laws of the United States can be interpreted.
That said there certainly are very precise and clearly defined parts of the constitution that cannot be "interpreted" to mean the opposite of what they say.
One example is the second amendment's use of the words "the people". The fact that the recent D.C. v Heller case was decided by a five to four vote illustrates that even clearly stated and straightforward delineations of rights can be put in jeopardy by the idea that a "living" constitution can mean the exact opposite of what it actually says.
If the words "the people" can be held to mean the government, or some subset there of, there is very little to stop the court from eroding even the most basic of rights in the Bill of Rights, and the constitution in general.
I have been accused of having a simplistic or "cartoonish" understanding of the issues involved in this discussion. I find it disturbing that holding the opinion that the constitution actually means what the words say is unnuanced.
The ACS officially states that originalist interpretations of the constitution are wrong and whether you choose to play words games with the obvious or not, any alternative to an originalist interpretation is clearly a move towards ignoring the actual words and intentions of the authors and reinterpreting the document with an entirely different purpose than that to which it was intended.
Your use of the word sophistry is appropriate though perhaps not in the way you intended.
Posted by: Lance | January 4, 2009 2:09 PM
jws,
"Since when did the "Founding Fathers" (what a bullshit label; as if we're talking about Jerome and Anselm) attain god-like status with superhuman abilities to legislate for folks living two or three or four or five or ten centuries hence? Jingoism knows no bounds..."
I prefer the words "framers" to "founding fathers" as the sex and possible parental status of the people that wrote the constitution are irrelevant to the principles it delineates.
However, your objection to the legitimacy of laws legislated by people from a previous time period is somewhat problematic. I suspect that most of the laws in our country were written by people of previous generations.
Are you suggesting that these laws are illegitimate?
While the framers have taken on a demi-godlike status among some simplistically patriotic people they themselves were totally against such nonsense. They saw themselves as "common men" and wrote the constitution to limit the power of potential despots.
Posted by: Lance | January 4, 2009 2:23 PM
Lance wrote:
And you demonstrate yet again why you can't be taken the least bit seriously on the issue of constitutional interpretation and why you remain stuck in this false dichotomy that presumes that anyone who disagrees with any interpretation of any constitutional position you take must be advocating the notion of a living constitution. I happen to agree with the individual rights interpretation of the second amendment and I think the Heller decision got it pretty much exactly right. But it is patently absurd to pretend that the meaning of the second amendment is "clearly stated and straightforward." It is nothing of the sort. There is legitimate debate about its meaning - about its original meaning - that has absolutely nothing to do with any notions of a living constitution. Even those who take one of the many possible originalist theories of interpretation can and do disagree on its meaning, especially in light of the qualifying phrase about the importance of a well-regulated militia. Again, I don't agree with those arguments and I agree with the ruling in Heller, but you are engaging in grade-school level oversimplification to pretend that this is just an easy and obvious call and that anyone who disagrees has to be using the living constitution notion and completely divorcing the text of the constitution from any sense of historical meaning.
Indeed, this example offers a rather concrete disproof of your ridiculous position. Take a look at the dissent in Heller and see if you can find any mention whatsoever of the notion of a living constitution. You will find none. What you will find is exactly the sort of search for original meaning, original application and textual construction as in the majority opinion. It makes no argument that the meaning of the amendment should be considered only in light of modern needs; rather it makes the same kinds of historical and etymological arguments made in the majority. It references the writings of the framers, other historical documents from the same time like the Vermont and Pennsylvania declarations of rights, and the whole history of precedents on the subject. It is hardly divorced from text and history, for crying out loud. Again, it's wrong, but it is not wrong because it uses this idea of a living constitution that you seem to obsessively assume is responsible for any ruling you don't like.
When I called your viewpoints here childlike and cartoonish, this is precisely what I meant. You have this incredibly simplistic notion that constitutional interpretation is very easy, that there is a clear and simple to the text and if someone's answers do not agree with yours, it must be because they think the text shouldn't matter at all. And yes, there really are some people who believe what you think they believe. But they are far more rare than you imagine and the ruling you cite shows just how silly and overly simplistic your thoughts on this subject are.
Posted by: Ed Brayton | January 4, 2009 4:10 PM
Ed,
You are absolutely correct that I should not have given Heller as a specific example of a "living" constitutional interpretation. While it is frequently a subject of such discussions the dissenters in Heller did, as you say, make an appeal to historical interpretations of the time.
I do not though, as you claim, think that constitutional interpretation is "very easy".
I must admit that the positions of the members of the ACS are more diverse than I had previously been lead to believe.
I was wrong.
Posted by: Lance | January 4, 2009 4:31 PM
Two observations -
1) Lance - it's clear you don't actually read rulings or get insight from constitutional scholars on those rulings. I suggest doing both to move beyond your shallow talking points and rationalizations you appear to have made in a vacuum without the full context by having actually read the key rulings and considered the arguments by qualified scholars for and against such rulings. Ed is being overly gracious in his criticisms of your arguments.
2) I just got around to reading the first of the two dissents in Heller over the Christmas break (Steven's opinion joined by all dissenters). I read the majority opinion as soon as the ruling was released. I could not conceive how one would dissent from the majority opinion prior to reading Steven's opinion, however I thought gov't had no power to prohibit ownership of guns for personal security prior to the ruling even being published. I was instead pleasantly surprised at how Stevens made a respectful, originalist argument against the Heller argument.
However, I believe Steven fails to swing me to his side given his failure to consider whether the state's legislatures have the delegated constitutional power to prohibit gun ownership beyond the 2nd amendment's delegated power of the states and the rights of their people required to maintain militias. Stevens needs to consider both the privileges and immunities clause, the 9th, 10th, and 14th Amendments (privileges or immunities clause) which he didn't do, where I realize the 2nd has not been incorporated via precedent.
Defining the 2nd amendment as an originalist power granted to states and an individual right to its citizens for purposes of a militia does not equate to power for states to prohibit arms for individual uses beyond sustaining state militias. Therefore, while I believe Steven's betters the majority's opinion on defining the 2nd amendment, that was only a minor part of the battle.
I look forward to studying the second Heller dissent soon.
Posted by: Michael Heath | January 4, 2009 4:45 PM
Lance - I wrote and posted my above comment prior to seeing your latest post above mine. Bravo studying Heller and owning up, publicly conceding is a good example of character and integrity.
I bet you'd love Randy Barnett's book on liberal originalism, "Restoring the Lost Constitution: The Presumption of Liberty". His arguments are tough to beat which is why I think we continue to realize an increase in so many arguments consistent with his, like we do to some extent in both sides of the Heller case.
Posted by: Michael Heath | January 4, 2009 4:54 PM
Micheal Heath,
Crow is not my favorite food but it is sometimes a necessary nutrient.
I'll check out Barnett's book.
Posted by: Lance | January 4, 2009 6:12 PM
"Though I often disagree with the individual constitutional interpretations of the republican dominated Federalist Society at least they claim that the constitution actually means what it says."
Let's start with Scalia's whatever-I-want 'originalism', then go on to the orgy of sh*t unleashed by the Federalist Society for the past 8 years. Heck, the Federalist Society lawers didn't even regard being slapped down by a 7-2 Republican SCOTUS as meaning anything other than 'change the wording and keep on doing it'.
Posted by: Barry | January 6, 2009 1:13 PM