Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
After making a first attempt to reply to my challenge concerning conservative originalism and the Loving v Virginia decision, Tom Van Dyke then left a comment at American Creation accusing me of not arguing in "good faith." Here is what he had to say:
Ed, I'm afraid that my suspicion you might not be proceeding in good faith was confirmed by your reply to Jon over at your blog:http://scienceblogs.com/dispatches/2009/11/conservative_originalism_and_i.php#comment-2093729
Here is the comment of mine to which he refers:
"I am attempting to demonstrate essentially the same point here using TVD as my foil, that those who argue in favor of conservative originalism don't really mean it - they only mean it when it leads to results they like. When it leads to results that are clearly unjust they jettison their mode of interpretation and pick and choose among a number of other possibilities. And this is precisely, of course, what they accuse living constitutionalists of doing. Originalism is a convenient stick with which to beat liberal judges but when it leads to heinous results, its advocates immediately engage in special pleading to reach the result they want - just like those liberal judges upon whom they use that stick."
And his conclusion:
Whatever, Ed. That is not good faith discussion.
My response: I think you have a very strange conception of good faith in an argument. I have a genuinely held position that conservative originalism cannot be maintained consistently without leading to results that even its advocates consider heinous enough that they will abandon their interpretive theory in those cases rather than follow their theory to its logical conclusion. Your comments here provided a perfect opportunity to demonstrate the validity of that argument.
I offered those arguments to you with the opportunity to make your case and show them to be false. What part of that, exactly, is not in good faith? Everyone comes to an argument defending a position they've already held and seeking to explain why it is better than the contrary argument. That is hardly evidence of bad faith, it is the way all arguments should proceed.
Frankly, I suspect you have chosen to accuse me of bad faith because you don't really have a coherent answer to my challenge. Your first attempt at a reply was essentially an attempt to change the subject from originalism to textualism. You did not even attempt to counter the argument -- undeniable, in my view -- that any of the three forms of conservative originalism, if followed consistently, would lead to a rejection of the Loving decision.
Indeed, you seem to have almost admitted that problem and instead present a quote from Scalia to the effect that originalism has such a flaw but the alternatives do too. As I wrote in response, this is a fair point. But that argument leaves originalism in exactly the same position that its alternatives are -- without acknowledging that fact. As I explained, the problem here is that conservative originalism is always sold as the only alternative to results-based jurisprudence. But if originalism has to be abandoned when it leads to heinous results, as Scalia bluntly admits it must, and one must jettison it and choose other interpretive methods to reach a more just result in some cases, then originalists are doing exactly what they accuse their opponents of doing - engaging in results-based jurisprudence.
The point here is that this should simply be admitted, that all judges operate on the basis of attempting to reach just results and they choose their interpretive methods (and choose to reject them when necessary) to reach those ends. And all that hypocritical rhetoric aimed at the advocates of living constitutionalism and other modes of interpretation should go away because originalist judges are doing the same thing, they're just refusing to admit and refusing to stop berating others for the same sins they commit.
Politics
Comments
"Whatever", as an interjection, is all by itself an argument in bad faith.
Whatever, Ed.
It means you wearily, ironically capitulate to the statement your opponent has made, but dismiss it at the same time according to whichever of several logical fallacies that leap to the mind of your audience. It's part of a long stable of non-answers and is the mark of a small mind with weak reasons.
Not that I'd advise good faith debaters to dismiss their opponents' arguments out of hand, of course.
but, you know, whatever.
ice9
Posted by: ice9 | November 23, 2009 10:08 AM
I have to agree - this sounds very much like the time-worn tactic of "I can't answer your question because it would expose a logical weakness in my argument. I will now attack you personally to distract from that logical weakness."
Posted by: Moderately Unbalanced Squid | November 23, 2009 10:28 AM
Well, no offense, Ed, but you began arguing in bad faith as soon as you played the race card. Which is to say, you brought Loving into the argument, with the implied corollary that any interpretative hermeneutic that cannot justify the result in Loving is inherently racist.
"But if originalism has to be abandoned when it leads to heinous results, as Scalia bluntly admits it must, and one must jettison it and choose other interpretive methods to reach a more just result in some cases, then originalists are doing exactly what they accuse their opponents of doing - engaging in results-based jurisprudence."
Um, believe it or not, but we conservatives are not monsters. We just believe that the law needs to be interpreted as intended by the original drafters of the law; when societal mores have shifted such that original intent leads to 'heinous' results (ie, banning inter-racial marriages), the proper response is to change the law through the legislative branch, not to hand over power to an unaccountable and out-of-touch judiciary. This is especially vital since said judiciary has a bad habit of judging things 'heinous' that are supported by the majority of society (ie, abortion bans, gay marriage bans).
Posted by: Pat Donohue | November 23, 2009 10:44 AM
@Pat Donohue:
Then why doesn't mr. Van Dyke simply come out and say so?
Like I said in the other thread, it should be possible to argue that Loving v Virginia was wrongly decided, while still holding that the law it struck down was heinous and vile.
IOW, the non-racist conservative originalist position should be that challenging the anti-miscegenation laws in court was the wrong way to get them off the books. The right way would have been to either get them repealed in the legislatures, or passing a constitutional amendment so that they became unconstitutional.
I don't see a lot of people making that argument.
Posted by: konrad_arflane | November 23, 2009 11:01 AM
I wouldn't agree that anyone who argues Brown or Loving were wrongly decided are racists. One could be not a racist and stick to one's originalist's guns and argue originalism does not justify those cases.
The problem is they've become reductio test cases. Any theory that doesn't justify their results is going to be a non-seller. And the kinds of originalisms that do justify Brown and Loving could lead to other results that originalists don't like.
It's a hard case.
Posted by: Jon Rowe | November 23, 2009 11:03 AM
@Pat Donahue:
You do realize that interracial marriage was NOT supported by the majority of society. That means, in your view, that we should have waited until everyone accepted it before changing the law?
Wow.
Posted by: SueinNM | November 23, 2009 11:07 AM
Pat Donohue wrote:
Except, of course, when doing that results in a decision you don't like, such as Loving. You could not have dogded Ed's argument by a wider margin: you could have tried, but you would not have been successful.
Posted by: Valhar2000 | November 23, 2009 11:07 AM
Pat Donohue wrote:
This is nonsense. I never even mentioned race, much less accuse someone else of being racist. The fact that this case happens to be about racism is irrelevant to the point I'm trying to make about conservative originalism. Not only did I not accuse conservatives of racism on this question, my point was the exact opposite - that even the vast majority of conservatives agree with the outcome in Loving and agree that any other result would have been unjust. The problem is that they continue to advocate a theory of interpretation that leads clearly and inexorably to the conclusion that Loving was wrongly decided.
That means they face a difficult choice. They can set aside their interpretive theory in this case and choose a different one in order to reach the just result (which is exactly what they accuse others of doing) or they can maintain the same interpretive theory and just accept that it sometimes leads to heinous results. You seem to be willing to take the second option, which is at least intellectually honest and consistent (and no, I don't think that makes you a racist). The problem is that the vast majority of conservative originalism advocates, including even the great Justice Scalia, won't do that. They jettison originalism when they don't like the outcome, which means they behave exactly like they accuse their opponents of behaving, but they do without ever acknowledging that they're doing it. And that's where the intellectual dishonesty comes in.
Frankly, I have more respect for your position, which is at least consistent. It's wrong, I think, but at least it owns up to the problem and just says, "yeah, sometimes it leads to results that are unjust, but the solution is legislative change." That is more honest than inventing fanciful justifications for one's hypocrisy.
Posted by: Ed Brayton | November 23, 2009 11:10 AM
This debate is a reason why judges should care more about reaching a decision that is in the interest of justice instead of stubornly adhering to a method of interpretation that could lead to decisions that could be unjust.
Posted by: David | November 23, 2009 11:14 AM
Ed:
When in the land of the "ShapeOfTheArgument Shifters" you must be adept at simultaneously juggling the several competing theories that they vacillate among WHILE trying to rein in their runaway Gish Galloping.
Posted by: democommie | November 23, 2009 11:18 AM
Jon Rowe:
I think the problem is a bit deeper than that. The Loving decision follows straightforwardly applying both the plain text of the 14th amendment, and the principle it is expressing. It takes no small amount of intellectual straining to explain how laws against miscegenation are compatible with equal protection. Those who framed and ratified the 14th were capable, in their time, of exercising those intellectual contortions, so strong and immediate was their repulsion at miscegenation. But just because they could and did, must we therefore continue that? It is precisely that question that originalists need to address.
Posted by: Russell | November 23, 2009 11:25 AM
I think Pat Donohue is a bit confused about the orginial intent of the Billof Rights. (see what I did there?)
One of the major bedrocks of the rights guaranteed in the amendments is to protect the rights of the minority from a tyranny of the majority.
If we simply wait for society as a whole to accept something before it becomes legal, we have a de facto tyranny of the majority. As long as the rulings of the court tend to expand the civil liberties of individuals without impinging on other individuals, then it is often the best (maybe only) way to overcome societal momentum and get the changes made.
I suspect there will be a valid challenge to some state's constitutional amendment that conflicts with existing marriage laws in other states. The only question in my mind is whether the federal change takes place through the courts, or through the states eventually capitulating.
Posted by: FastLane | November 23, 2009 11:39 AM
how does this not argue that the civil rights of pick any minority ought to be the subject of majority voting? i assume we can all agree that making civil rights so subject leads to well-known injustices.
Posted by: Nomen Nescio | November 23, 2009 11:42 AM
ice9 #1:
good point. I will be on the lookout for "whatever" as a tell-tale sign of bad faith arguing from now on. (This is not sarcastic; it really is a good red flag, and though I suppose I already knew that, it is good to make it explicit).
Ed:
Getting a clearer picture of original principle originalism now, having come into this completely cold. Thanks. Some questions about it:
1. How difficult is it for judges to extract the original principles? How likely is it for there to be contention, where different judges extract different principles?
2. What is the best recourse for such contentions?
3. Is it possible to extract a true original principle of the FFs and yet, in judging based on that, result in a heinous judgment? If so, what should be done?
4. Can you trim the name of original principle originalism? Isn't that redundant? Wouldn't just principle originalism suffice?
Posted by: cm | November 23, 2009 11:50 AM
Which, ironically, is indicative of Van Dyke arguing in bad faith.
Posted by: Sadie Morrison | November 23, 2009 11:54 AM
Let's take another case, the one man, one vote decision. According to the argument of Mr. Donohue, individuals who objected to the malapportionment of state legislatures and the US House of Representatives should have taken their case to the legislators in those same legislatures to ask for redress. Since that would have been tantamount to petitioning some of them to abolish their own jobs, thus giving them a conflict of interest, such a position is ludicrous. The courts were the only redress available.
Posted by: SLC | November 23, 2009 11:55 AM
Ed stated:
In defense of J. Scalia, he did admit in his book laying out his judicial philosophy, Matters of Interpretation that he flees from his textualist approach when the results would be absurd, i.e., that it too is not a perfect approach (mostly comparing his approach to abstract principalism). However, Scalia fails the character test post-publication as Ed rightly points out by not admitting when he's doing so or accusing others of low standards he himself frequently fails to adhere.
Ed stated:
I have seen J. Thomas write in his opinions that he doesn't agree with the outcome (I think it was Lawrence) and advocates the legislature overturn the law, but that his judicial approach demands he rule in a way contra to his political position.
On the other hand, it's been statistically validated that J. Thomas votes for conservative political positions far more than any other justice (of the Rehnquist Court when the study was done). The fact his vote in Lawrence was consistent with conservative political positions makes me skeptical of his personal position.
Posted by: Michael Heath | November 23, 2009 12:10 PM
Pat @ 3:
But Pat, why must conservatives always attack judges as being "out-of-touch" and "unaccountable"? Ignoring, for a moment, that judges are accountable, regardless of what the judge feels is the popular will of the people, don't you want them to rule on the law and the law only? And this fact will sometimes lead to unpopular results (abortions, removing gay marriage bans). I thought that's what conservatives want? To do otherwise, I'm sure you would attack them as "activist".
Posted by: MyPetSlug | November 23, 2009 12:16 PM
cm wrote:
It depends on the case. Sometimes, the intent or the original principles are easy to define and understand. Other times it can be impossible because there was wide disagreement among those who wrote the constitution on what a given provision meant or required and how to apply it.
I think the best recourse in such situations is to reach the most just result.
See my answer to #3.
It is often called liberal originalism, but that is too easily confused with political liberalism.
Posted by: Ed Brayton | November 23, 2009 12:22 PM
Fastlane @ 12:
Excellent point and nice job seeing the forest from the trees. I'm skeptical we even require the 14th Amendment incorporated on issues like the prohibition of certain people marrying given the 9th and the 10th's reservations not mentioning merely states, but the people as well. I welcome incorporation, and given marriage was state-administrated welcome it for that reason, but I just think parts of it redundantly protects rights already constitutionally protected prior to its ratification, even from state tyranny.
In the case of marriage, certainly the Constitution doesn't prohibit states from administrating such while not granting authority for marriage to the federal gov't, but I think the Constitution doesn't delegate powers to the states to deny people the rights laid out in the Bill of Rights prior to the 14th. From that vantage point I find the 14th enables us to continue to avoid the reality that we didn't interpret the Bill of Rights correctly almost from the time they were ratified - I'd argue all because of slavery and our having to avoid the fact that slaves were unconstitutionally denied their right to exercise their rights or the obligation of the federal government to defend those rights.
For a country that calls itself free, we have a large element of society that continues to want to use the power of government to restrict 'the other's' civil rights.
Posted by: Michael Heath | November 23, 2009 12:24 PM
I think anyone who wants to argue for strict originalism should have to do so with a quill pen on parchment paper. Definitely not on the inetrnets.
Posted by: JusticeLeague | November 23, 2009 12:26 PM
Ed, that kind of attitude is one reason why I was led to eventually calling Tommy boy out as a bigot way back when he was making noises (not cogent arguments) about religion in the public square. He can't or won't argue in good faith (unless he means his "good faith" in his particular brand of religious worship), and I don't think it's worth the effort in trying to do so with him.
Posted by: mercurianferret | November 23, 2009 12:31 PM
I second mercurianferret's comment about teh VD. He has a habit of being professorial until his arguments are exposed as logical houses of cards, then he gets defensive or ugly, sometimes both. No matter if it's and "I'm with Stupid" ballcap or a mortarboard with a tassel, he's still an asshat.
Posted by: democommie | November 23, 2009 1:00 PM
There are a lot of problems with originalism besides those that come from the fact that it leads to bad results in a case like Loving. Again, as I so frequently do, I insist on looking at the 'historical perspective.'
While my opinion on the Constitution matches Gladstone's famous quote, we forget that the '55 men' did not go into a room and pray, and the next day find the Constitution miraculously appear on their desks. (For that matter, they were not chosen to go to Philadelphia for the purpose of 'writing a Constitution.' They were supposed to suggest changes in the Articles of Confederation, not to 'scrap it and start over.')
Their 'intention' was to create a government that worked and would last -- nothing more. But they were, in reality, 'setting forth on uncharted waters,' despite Adams' collection of earlier Constitutions. They did an excellent job of it, yes, but arguing we must follow their exact path would be like arguing that all ocean travel between Europe and America had to follow one of Columbus' 3 journeys. Or, possily more exact, arguing that any land travel should follow the path of a famous explorer -- Lewis & Clark, Marco Polo, whoever -- despite the changes in the mode of transportation that have occurred.
We forget some of their 'original intentions' -- some, but not all, of which were changed by Amendment, or by the Civil War.
The President was supposed to be chosen by a group of 'wise men' selected by the State Legislatures to come together, to debate, and only then to vote, listing two people per elector -- making sure that both were not from their home state -- with the man with the highest vote getting the job, and the second person getting the 'stand-by' position. There was no 'original intention' that 'the people' should have any part in the process whatsoever except for voting for their state legislatures.
And no, this was NOT changed by the Twelfth Amendment. As late as the election of Lincoln, one state still had their state legislatures appoint the electors without any form of voting whatsoever.
I even remember suggestions during the lead up to Bush v Gore that it would still be possible for the Legislature to appoint the electors if no consensus as to the winner was reached. And, afaik, there would be no Constitutional barrier even today to a legislature rejecting the choice of the voters and picking a different set of electors pledged to someone else. State and Federal laws might prevent this, the Constitution does not, and it would go along with 'the original intent.'
Similarly, the 'original intent' of the Fourth Amendment was to protect the 'sanctity of the home' against unwanted physical intrusion by the Government. In fact, iirc, the first 'wiretapping' case -- with the decision either written by, or with a concurrence by Justice Frankfurter -- turned on precisely this and held that there was no 'unwarranted search' if the tap was applied outside the home, only if the government actually entered the property. (And it is an interesting side note to see the change in the meaning of the word 'warrant' in this context.)
And is it possible to seriously argue that the 'original intent' of the 'Freedom of Speech' clause was to protect political speech alone, and that there was not even a thought -- pro or con -- about such things as commercial speech and pornography?
And one final one. The '3/5th clause' which we, justly look on with such horror was, in fact, 'originally intended' as a compromise -- but a compromise between slaveholders who wanted slaves counted as people -- for the purposes of Representation -- but not as property -- for the purpose of 'direct taxation' and opponents of slavery, who insisted that slaves be counted as property, not as people for the same reasons. (Were irony meters available back then?)
Posted by: Prup (aka Jim Benton) | November 23, 2009 1:06 PM
Prup stated
It's not true that originalism can't lead to defending the Lovings' rights. Instead it can't lead there the way some conservatives apply originalism. From my perspective, those whose conservative political desires far outweigh their desire to stay consistent with how they interpret law. Barnett gets there quite fine with liberal originalism, which is the whole reason Ed originally pointed out the need to distinguish between the various flavors of originalism in the other day's post on this issue.
I haven't read past this point in your post Prup, and will, but I think it's important we distinguish the differences.
Posted by: Michael Heath | November 23, 2009 1:13 PM
Pat Donahue, #3: We just believe that the law needs to be interpreted as intended by the original drafters of the law....
Well, if I read Ed's post correctly, you conservatives don't do this consistently. Maybe you do as an individual, but I have heard of very few conservatives who consistently apply what they claim to be applying.
-
This is especially vital since said judiciary has a bad habit of judging things 'heinous' that are supported by the majority of society....
And this is a good thing. The whole point of the Constitution is to point out that there are rights and limitations that should apply regardless of what a majority of the population think. If you can't understand that basic point, then you fail American civics forever.
Posted by: Chiroptera | November 23, 2009 1:21 PM
For those of you who don't know me, I am not supporting the 'originalist' positions I decribed above. In fact, they show why I am not an 'originalist' in the slightest.
I would even argue that fastlane's comment above:
while accurate now, was not the 'original intent' of the 55 men. They were simply interested in preventing the Federal government from performing those actions that had caused 13 of the British colonies from breaking away from the central government. (We forget that there were other New World colonies that did not join in the rebellion.) I'd even argue that it was this desire not to give a reason for yet another 'breakaway rebellion' that was even stronger than the 'protection of rights' that caused them to be added.
(If not, then why did they limit them to the Federal Government? States were free to establish a Church, many had, and such 'established churches' lasted for decades after the Constitution.)
Posted by: Prup (aka Jim Benton) | November 23, 2009 1:26 PM
Prup stated:
You appear to making an argument that one must dig around trying to find a right, and that conservatives merely don't dig very hard by pointing to original intent. While that is certainly true of originalists like Bork, Scalia, and Thomas, it is not true of all originalists.
In fact, I reject the whole premise of searching for rights by way of the 9th Amendment. Instead attempt to find explicitly delegated powers in the Constitution that allow government authority to restrict or prohibit our rights. From this perspective, one can claim that the right to communicate has no limiting numerated government powers to restrict or prohibit except when defending the superior rights of others.
Certainly the 10th and 11th Amendments delegate certain powers to the states, but only in a manner that doesn't violate those rights we reserved for ourselves and if so, only to defend the superior rights of others. The states can't strip us of rights we reserved by 'the People' delegating limited powers to government because we don't get our rights from government, we merely noted some of them.
Madison's fear and original reluctance to add a Bill of Rights because we'd see our rights limited to how those rights were textually written and therefore parsed was prescient and a major reason for the 9th Amendment.
Posted by: Michael Heath | November 23, 2009 1:28 PM
Shall we do the well-bred Victorian thing and pretend not to notice offensive realities? Loving won't go away for ignoring it, and a sound legal theory should be able to cope with unpleasant examples. If Loving were hypothetical, I can readily see people arguing that it's not a realistic example and thus refuse to deal with it on that basis. Unfortunately that escape runs into the fact that Loving isn't hypothetical.
So by all means apply your theory of Constitutional interpretation to the facts of Loving v. Virginia. If they lead you to an unpopular conclusion, have the courage to tell us so -- and if we don't like it, then the Constitution should be changed. It's not like it came down on stone tablets or anything; that's where the 14th Amendment came from in the first place after all.
Posted by: D. C. Sessions | November 23, 2009 1:46 PM
For Michael Heath and anyone else arguing for 'liberal originalism' I would suggest a 'thought experiment.' You are whicked back in time and become a member of the 55 men, or the First Congress -- if you are discussing the Bill of Rights. You are 'the delegate/representative from the future' if you wish, so you can describe changed conditions.
Now imagine yourself introducing a resolution specifically calling for, say, Loving. or any other idea you see as part of 'liberal originalism.' Now imagine, even if you were gifted with oratorical skills equal to Webster and demosthenes combined, how many votes you would get for it.
We forget that 'originalism' itself is as much an innovation in Constitutional thinking as 'The Rapture" was in Christian thinking. Even the previous 'Fearsome Foursome' which was led by McReynolds and Sutherland never argued for it -- nor did any SCOTUS Justice that I can recall. They all, from the most reactionary to the most liberal, argued for fitting the principles established to the changed conditions, not that 'conditions' didn't matter, that all that mattered was the specific words and ideas of the Framers taken out of context.
Posted by: Prup (aka Jim Benton) | November 23, 2009 1:55 PM
Prup - I already brought up your challenge in one of my last posts. They avoided getting to that level of detail because it would have immediately revealed that slavery was clearly unconstitutional if they consistently applied both the text and the principles inherent in the Constitution than either 'the people*', 'privileges and immunities', and the Bill of Rights.
That is exactly what Barnett does with liberal originalism, he goes back to the original text and starts from there.
Since I'm posting again you are totally way off in an earlier post that all 55 weren't thinking about the tyranny of simple majorities and protecting individual rights. The architect of the Constitution, James Madison, has numerous things to say about his fears about simple majorities denying individual rights to the minority and the Bill of Rights was a counter to Madison's initial advocacy that limiting the government to explicitly noted powers was sufficient.
Posted by: Michael Heath | November 23, 2009 2:18 PM
I do hope Pat D returns to defend the tyranny of the majority, which would make creationism science by fiat, as well as the assertion that judges who make decisions Pat D doesn't like are "out of touch." I hope Pat D returns to explain why the judiciary should not act as a foil to legislatures that enact laws that are unjust.
Posted by: clamboy | November 23, 2009 3:06 PM
my argument of " I dont know ". when i could not justify my position, with a logical argument . has always worked well for me
Posted by: Vic Vanity | November 23, 2009 3:13 PM
Prup - I already brought up your challenge in one of my last posts. They avoided getting to that level of detail because it would have immediately revealed that slavery was clearly unconstitutional if they consistently applied both the text and the principles inherent in the Constitution than either 'the people*', 'privileges and immunities', and the Bill of Rights.
That is exactly what Barnett does with liberal originalism, he goes back to the original text and starts from there.
Since I'm posting again you are totally way off in an earlier post that all 55 weren't thinking about the tyranny of simple majorities and protecting individual rights. The architect of the Constitution, James Madison, has numerous things to say about his fears about simple majorities denying individual rights to the minority and the Bill of Rights was a counter to Madison's initial advocacy that limiting the government to explicitly noted powers was sufficient.
Posted by: Michael Heath | November 23, 2009 3:21 PM
So not monsters, but just desiring that majority social opinion exert pressure on legislators which prevents equality before the law for minorities. Equality of the minority is often unpopular if the minority is disliked, and legislators are easier to influence with unpopularity than judges.
You're not really doing yourself any favors with this line of thinking.
Posted by: Moderately Unbalanced Squid | November 23, 2009 3:26 PM
Well, Ed, the full truth is that when you wrote
those who argue in favor of conservative originalism don't really mean it - they only mean it when it leads to results they like.
I hadn't even been given the chance to make my first response yet, but there you are impugning the integrity and sincerity of your opponents.
That is not good faith.
Second, you moved the discussion from a level playing field, my groupblog American Creation, where you have supporters among the bloggers, to here, where you get the mainpage and I'm down here in comment #30-something.
That's not playing it straight.
As for your tactic of attacking the other side instead of defending your own position, that's fine for debate games, but is unconcerned with a good faith discussion in pursuit of the truth.
As for the actual problems with your position, if Loving presents a race problem for the other side [which it does not], your position is helpless against cannibalism or torturing puppies if 5 justices find a "principle" or "penumbra" to create a right to it. A "right" beyond the reach of any law, BTW, forever and ever.
And I didn't even get the chance to write more than an opening argument before you rendered summary judgment. The problems with your position are far deeper than that.
Enumerating the rest of your rhetorical and tactical shortcuts around good faith would serve no purpose unless you want to offer me your mainpage, as I offered you at my groupblog.
;-)
So until next time, vaya con Dios, my darling. But when we meet again, it won't be on this blog, unless my name appears on the mainpage, as it did here, and I'm obliged to respond to correct the record.
Posted by: tom van dyke | November 23, 2009 4:23 PM
i'm not all that current on Ed's friends and social circles, so up until this thread, i really had no idea who Tom Van Dyke was. honestly, i still don't know him from Adam; i've no clue what his qualifications are, nor why his viewpoint is more worth listening to than my own.
but now that i've read comment #36, i can tell mr. Van Dyke does seem to be rather more of a whiny quitter than i'd like to think of myself as being. i've bowed out of debates before, but not with excuses that looked so remarkably like grasping at any available straw that might let me take the ball and run home.
perhaps Tom has a good point about conservative jurisprudence; perhaps he's even right. but whether he is or not, he clearly can't argue for shit --- or at least he doesn't want to try to.
Posted by: Nomen Nescio | November 23, 2009 4:41 PM
Nomen,
It might appear that way; but this blog does have a few characters who tend to spoil the party in the comments section once things get heated up. TVD has experienced the worst of that (and probably wants to stave that off from occurring), and surprisingly, so have I when I guest blogged.
Posted by: Jon Rowe | November 23, 2009 4:52 PM
"but whether he is or not, he clearly can't argue for shit --- or at least he doesn't want to try to."
On this forum, it's the latter. Believe he and I have gone at it over and over again and he can argue his shit.
Most of the details -- like just how traditional (Thomistic as opposed to Enlightenment) James Wilson's Lectures in Law are (how James Wilson properly viewed reason v. revelation) -- would probably bore most folks.
Posted by: Jon Rowe | November 23, 2009 4:55 PM
I wrote:
And Tom Van Dyke replied:
It doesn't have anything to do with sincerity. The fact is that lots of people -- hell, maybe all of us -- hold and advocate positions while being blind to the logical ends of those positions when applied consistently. I've had this discussion with dozens of advocates of conservative originalism in the past, you're hardly the first. In that time I have never found anyone who can provide a coherent, consistent reason why conservative originalism would not logically invalidate the Loving ruling. I told you that up front and offered you the opportunity to be the first to do so. Did I expect you to do so? Of course not. But that has nothing to do with any lack of good faith, it has to do with having thought this through quite thoroughly and had the same debate with lots of others, including some pretty prominent and thoughtful legal scholars. You can feign outrage at my bringing a conclusion to a debate if you'd like, but it's rather silly. You have every opportunity to prove me wrong in reasoned debate, something you have so far failed to do, choosing instead to whine about bad faith.
This is even more ridiculous than your first bit of faux offense. When I told you I was moving it here, I invited you to respond here or at your own blog and we could carry on a conversation that way. I even said that I would understand perfectly why you would choose not to reply here because of past rudeness on this blog. Here is exactly what I wrote:
One of your co-bloggers, King of Ireland, said that he thought my framing of the issue was entirely fair (and it was). And in fact, you DID reply on your own blog, which is perfectly fine with me. And I replied to that and left a comment there telling you that the reply was posted. I don't really care where you reply and I told you so. I've got no problem with you posting on your blog and me posting on mine and you obviously didn't either, since you posted your reply on your blog as well. Yet now you want to pretend that this is somehow unfair? Sorry, that's just ridiculous.
Again I am led to the inevitable conclusion that you are attempting to change the subject by whining about alleged bad faith and unfairness when, in reality, there is absolutely nothing preventing you from giving a reasoned, coherent response to my perfectly reasonable challenge. That you continue not to do so and continue to engage in disingenuous whining strongly suggests that you are behaving this way because you don't have a coherent, consistent answer for my argument. Of course, you still have every opportunity to prove me wrong by providing such an answer. But I'm not going to hold my breath. The avoidance mechanisms you are engaging in speak quite loudly.
LOL. Yes, criticizing the inconsistencies of your position is terribly unfair and in bad faith. Seriously, did you type that with a straight face? You're dodging, Tom. It's quite obvious to everyone.
No, I will not offer you my mainpage for more whining about how unfairly you've been treated. I will, however, offer you my mainpage for an actual substantive response to my challenge. I would have put it there anyway so I could answer it. If you want to actually answer my challenge instead of spewing all this faux outrage to change the subject, I will absolutely publish it, unedited, on my mainpage. And then I will answer it. That's how debate works, of course, regardless of whether your response is posted here or on your blog or both.
Posted by: Ed Brayton | November 23, 2009 6:11 PM
I would have to agree with Jon. Tom is very knowlegable and can debate well. I was hoping him and Ed would go at it more because they are of the most knowledgeable people I know on these subjects. I have been trying to get him to comment more on this blog but I agree with Jon that the few who shouted him down before keep him from doing it. I think at least one person in thi thread called him an ass hat. What does that accomplish?
Posted by: king of ireland | November 23, 2009 6:12 PM
King of Ireland:
Okay, so let him reply on his own blog - as I specifically invited him to do and even agreed that given the rudeness of many of the commenters here, I would understand why he would choose to do so. His response to my perfectly reasonable challenge so far has had zero substance to it. He hasn't even attempted to engage the argument. I don't care whether he does it here or there. But it's quite clear that he's avoiding doing so because he can't answer it. But as I said, he can easily prove me wrong simply by providing a coherent response. Nothing is preventing him from doing that except his own inability to do so.
Posted by: Ed Brayton | November 23, 2009 6:18 PM
So now, instead of "whatever," it's "give me a quart of moonshine and your middle daughter, or I won't argue with you."
As per usual, TVD wants ground rules:
1. We always use the serial comma.
2. Any ball that hits the Dome superstructure in fair territory is a home run.
3. No ad hominems if I'm the hominem; otherwise, we'll submit the claim to a committee of clergy to determine whether St. Augustine would approve.
4. I always get to set the ground rules.
5. Anybody who dicks with the ground rules loses.
6. It's my ground or the highway, out there by Perkins on the east side by the soybean field.
7. Jesus is Lord, and he knows best.
8. Fancy language and veiled reference to former debate triumphs trumps bad evidence and fishy grounds.
9. If fewer than 50% of comments by weight are hostile, the blog in question is going to hell.
10. Overtime must be played on my field over at the entirely neutral website "www.liberalssuck.com/scaliarulz"
11. I never lose.
12. In the event that I lose, a vote of the commenters will be tallied by a region of my brain of my choosing, and I will win, and then things will change, and I will win.
13. Being mean to me demeans you, if you know what I mean.
final key rule:
Nobody can joke about my name, calling me "dick van dyke" or any of that, because it's not arguing in good faith and I'm always up for a good argument but invective isn't good faith, and just because I know I'm right doesn't mean I'm a dick.
All in favor say aye! (inaudible) Nay? The motion carries.
carry on.
ice9
Posted by: ice9 | November 23, 2009 6:24 PM
The interesting thing is that this seems to be the case most consistently with people who espouse emotional rather than logic based positions. We see it quite commonly in religious based arguments, creationism vs. science, faith vs. reason, etc. where people will ignore the fact that, if carried out to its logical conclusion it leads to utterly ridiculous results. Before anyone objects, I am not laying this out to be a conservative, religious, or Christian stance, simply an emotional rather than rational one. For Scalia and many conservatives, the originalism argument lets them adhere to tradition, which fits their mindset from the beginning, while at the same time tying their position to one of authority, IE the founding fathers. The problem is that by today's standards the founding fathers were mostly racist, sexist, elitists who were, for the most part, just fine with the idea that men could be owned, women were second class citizens, those who didn't own property were severely limited in their political rights, and those who were in the way, but not European in ancestry, had little, if any political rights.
The interesting thing is, originalism can't look at these issues because if it does, it is quite simply wrong. It isn't the people who are racist (or not), but by today's standard originalism itself will support racism because it was the status quo at the time. It is an inconvenient truth that originalists will (apparently) forever struggle with.
Posted by: dogmeatib | November 23, 2009 7:00 PM
Overall I have to ask the question, if original intent were the fundamental framework and importance of the constitution, then why did the framers establish a method for amending the constitution? Doesn't that fact establish the argument that they themselves saw the constitution as a living document that would need to be reinterpreted through time? I mean if the document is thought to be the perfect embodiment and its original intent is the fundamental principle, then it would never have included a method for changing it, it would have seen to have been perfect. Also, the first 10 amendments are proposed virtually instantly, how can you have an original intent of a document that is changing even as it is being adopted?
Posted by: dogmeatib | November 23, 2009 7:06 PM
Did I just read the lamest slippery slope examples ever given, or am I missing something legitimate here?
Posted by: Michael Hoaglin | November 23, 2009 7:07 PM
Fastlane @ 12:
For the "original intent" crowd, the question of a bill of rights occasioned a major political disagreement, some arguing that enumeration would limit rights to those enumerated; others, particularly Madison, arguing that enumeration should be considered minimum guaranteed rights. That is, he advocated a view something like the "emanations and penumbras" despised by modern originalists.
Posted by: JakeR | November 23, 2009 7:16 PM
Be fair. There are plenty of alternate explanations.
My favorite is that he does have a coherent, consistent answer. He just doesn't like it and doesn't want to admit it in public.
Posted by: D. C. Sessions | November 23, 2009 7:36 PM
dogmeatib | November 23, 2009 7:06 PM:
I had thought most originalists argued that the founder's establishment of a method for amending the constitution showed that the preferred (that is, founder-intended) way of changing the constitution was to do so with an amendment which explicitly specified the changes, as opposed to changing its meaning through judicial decisions. (However I don't agree with the originalist position, and my grasp of con law is weak.)
Posted by: llewelly | November 23, 2009 8:26 PM
ice9@43:
I thought of myself when I read Jon Rowe@38, but I bow, nay I prostrate myself, before your superior invective! Mr. Van Dyke gets exactly what he deserves.
Posted by: democommie | November 23, 2009 9:21 PM
I bet it was the being used as a "foil" thing Ed.
Posted by: Troy Britain | November 23, 2009 9:52 PM
... unless my name appears on the mainpage, as it did here, and I'm obliged to respond to correct the record.
Well, there you go. You got what you wanted, Mr. Tom van Dyke the drama queen!! Only kidding. Drama = spice of life, etc. Drama, the spice of blogs!
Posted by: 386sx | November 23, 2009 10:10 PM
Before all this started, I didn't know Tom Van Dyke from Adam's maiden aunt. I assumed, in the absence of contrary evidence, that he might actually have a point and might actually want to make it. On the previous thread, I had pointed out, politely (I even said "please"), that the question, "Is Loving wrongly decided on your theory of originalism?" could be answered in no more than three words, and probably in one. I expressed eagerness to hear any explanation he wanted to offer for his answer after he gave it. Now he's back, and I see that my assumptions were wrong and my polite entreaties wasted. Can anyone tell me who this character is and what his problem might be? I could look him up, but it doesn't seem likely to be worth the effort.
Posted by: CJColucci | November 23, 2009 10:26 PM
Ed is my blogbrother at Positive Liberty. Tom is my blogbrother at American Creation. Ed and Tom are half blog-brothers once removed.
He has written for the American Spectator and blogs also blogs at Southern Appeal.
Posted by: Jon Rowe | November 23, 2009 10:31 PM
dogmeatib @ 49
The problem with constitutional amendments as the only agent of change in constitutional law is problematic because it is so difficult to amend the constitution. It would be completely impractical to amend the constitution every time the Supreme Court decided to make slight changes to their interpretation of a constitutional right- interpretations that can change gradually over time. For example, the right of habeas corpus has gradually expanded over time from a mechanism to prevent federal executive detentions where there is no conviction to one that protects the federal rights of all prisoners, including those in state prisons where the prisoner has been convicted of a crime. This piecemeal change that reflects changes in societal values would be frustrated if the only way to change our perception of rights is to change the actual language of the constitution. Even originalists don't outright reject such gradual interpretive change, they just choose to be very careful about how such changes are made. Originalism isn't absolute, it's really just a form of deference to original understandings of the meanings of rights. It is a conservative view in that it is reluctant to change, but it doesn't reject change categorically.
There can be no question that founding fathers were well aware that the language of law is susceptible to a wide variety of interpretations. They were no doubt equally aware that the rights protected may change gradually over time as our very concepts of what the words mean changes. To limit such interpretive changes to constitutional amendment would be to create stagnation blocking fundamental rights in a way that would sacrifice legal experience, growth and better thought to a dogmatic and senseless adherence to keeping things the same no matter how our conceptions of rights and justice change.
It would also be somewhat odd to say the only way to change the interpretation of the constitution is through the amendment process because if the definition of something like, say, "equal protection" changes, we wouldn't need to change the words through a constitutional amendment. The words often don't change, we do. So while, for example, equal protection may not have been thought of as something that could protect women against sex discrimination, changes in the broader social understanding of equality could call for it, and in fact have. To say equal protection could never apply to women because it was originally intended to protect slaves doesn't account for actual changes to values in society and places arbitrary barriers blocking the general attempt of courts to seek justice.
Posted by: Android B | November 23, 2009 10:50 PM
Ed,
I do not really know enough about this topic to know whether he has responded or not. Maybe a simple post on the nuances of this debate or a good site that outlines the basics. I do think your offer to respond on your main page is something he may want to consider.
This exchange is exactly what I had in mind when I wrote what I wrote at American Creation. I mean that in a good way. I hope he reponds but I am not sure if he will or not. I do know he is smart as hell and all would benefit from his analysis on a variety of topics to do with the Founding and religion.
I selfishly am hoping to get your guys to go out it on a few issues because I know I will learn from it. I learned more about this topic reading old posts of exchanges between him and Jon than any course at a University could teach me.
Posted by: King of Ireland | November 23, 2009 11:11 PM
"go at it" not "out it" on my last comment.
Posted by: King of Ireland | November 23, 2009 11:20 PM
Mr. Brayton---Ed---I accept your challenge and offer of your mainpage for my arguments. Very cool, a very fair and righteous offer.
In reciprocation, you will of course also have the mainpage at my groupblog, American Creation, as previously offered, unedited and uncommented upon by me as you'll be a guestblogger. It wouldn't be fair for me to foul your every argument with a rebuttal. Your remarks will appear in their entirety as a guestblogger, without editing or comment.
I hope you'll accept Jonathan Rowe as our moderator, as he is our mutual friend and mutual group-blog-brother. Who else would we choose? Mr. Rowe would have the right and duty to speak up anytime he feels he should. I trust him as a fair man, and I'm sure you agree.
I trust Mr. Rowe to arbitrate the details of our engagement, and accept his word as final.
This could be a beautiful thing for our country in our modest way, Ed, to disagree without being disagreeable and show 'em all how it's possible. You're a Great American and I'll try to hold up my end as one, too.
This won't be a cooperative discussion but an adversarial debate, so a moderator will be necessary to judge when one of us is hitting below the belt. We both already know the rules of civilization, debate, and fair play, so Jon should have little to do.
;-)
We both are not only Great Americans, but gentlemen, surely. The great questions of humanity are not settled in street fights. And I'll police my blog's comments section, and I'm sure you'll do the same.
Or as you elegantly put it yourself:
I'll append that disclaimer to all your guestblog posts at American Creation, and will appreciate it when you do the same.
I'm looking forward to it, Ed. Let's show 'em how it's done, GK Chesterton vs. George Bernard Shaw at London's Reform Club. Neither of them were wrong, it was only a question of who was more right. It was a peak of Western Civilization. May we be worthy. Perhaps we'll even get some folks to think for themselves, which should be our highest ambition.
Cheers,
TVD
[HT: King of Ireland]
Posted by: tom van dyke | November 24, 2009 1:53 AM
Actually, Tom, Chesterton was schooled so badly his spleen burst and he had to be revived with a flagon of guinea Madeira and a back rub by Oscar Wilde.
This debate seems fine! Only question: Who's the jury, and how can we pack it with people who believe we're right?
Anyway, Ed, I would hesitate before letting Mr. Rowe arbitrate the details of your engagement. He's a fine man but also has some whiffs of the originalist about him. Remember--the Duke of Ferrara was polite, too, but you don't want to be just another bit of frozen statuary in his mezzanine.
ice9: bad, bad American and resolute invectivist
Posted by: ice9 | November 24, 2009 8:52 AM
It always ends the same. Conversation gets bogged down and ugly, Tom dodges direct questions, whines about unfair debate, and then ascertains that he is the better man. But it doesn't end there, he will then come up with a NEW "Fair" challenge while dodging the initial sticking point altogether. It begins a new cycle of debate that never actually leads to any real answers from TVD.
He does write well and is clever enough to lure one into debate for a while...It is a mask of his true inability for critical reasoning outside of his preconceived ideas. Several threads at Positive Liberty have made that painfully obvious. I hope this exchange with Ed won't be more of the same, but so far it is following the same old pattern. Good Luck Ed.
TVD - You are definitely no Chesterton or Shaw, please spare us your illusions of grandeur.
Posted by: Anna | November 24, 2009 8:56 AM
Oh, that "Come in, said the spider," thing? It's already old, and never was half clever.
I'm not surprised to hear you've written for the American Spectator. It's not as though you've written for a mag that has actual intellectual standards.
Posted by: The Questioner | November 24, 2009 9:15 AM
The problem with originalism is that sometimes what the people intended was wrong.
No need to take it personally.
Posted by: t_p_hamilton | November 24, 2009 11:29 AM
ice9 wrote:
Actually, Jon is, like me, an advocate of liberal originalism (or original principle originalism) or something very close to it. We've been writing about these issues for many years and have been in almost complete agreement. Even if that was not the case, however, I would have no problem with having him moderate any exchange I was involved with. I would be hard pressed to name someone more fair-minded and reasonable than Jon Rowe (considerably more so than me, I'll admit).
Posted by: Ed Brayton | November 24, 2009 11:59 AM
Many thanks for this Ed. I'd be honored to do whatever necessary to moderate the conversation. And Ed is right that my theory of con interpretation is closer to his than TVD's.
Posted by: Jon Rowe | November 24, 2009 12:27 PM
Maybe you could add one more debate rule: TVD has to answer the f***ing question.
Posted by: CJColucci | November 24, 2009 12:30 PM
CJColucci:
"Maybe you could add one more debate rule: TVD has to answer the f***ing question."
Why do you hate the founding fathers? If Mr. Van Dyke has to answer questions he will have less time to preen and compare himself with folks like Chesterton (not that I thought much of him, either).
Posted by: democommie | November 24, 2009 1:01 PM
Ed--ok, any slight against Mr. Rowe is retracted and apologized. I was just riffing on the idea that this is an engagement among Great Americans, perhaps worthy of the second page of the NYT sunday wedding announcements. Will you be keeping your own name?
And I second the notion that Vox Dyk must be compelled to use his excellent writing skills to answer the question or be declared the loser and shunned.
icer
Posted by: ice9 | November 24, 2009 1:26 PM
I agree with Ed about Jon. He calls them how he sees them. Anyway I am excited to see this debate.
Posted by: king of ireland | November 24, 2009 5:52 PM