Patterico's Pontifications

1/7/2011

More on Textualism As the Foundation of the Rule of Law

Filed under: General — Patterico @ 7:28 am



In a comment yesterday, aphrael raises an objection to my support for textualism as the only interpretive method that preserves the rule of law:

And since we are a nation founded on the rule of law, we are a nation governed by texts, not subjective purposes or intent

Respectfully, Patterico, this is an oversimplification.

Consider the thirteenth amendment, which says:

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction”

The plain text of this prohibits involuntary servitude except as a punishment for crime.

The draft was a form of involuntary servitude.

Almost nobody thinks that the thirteenth amendment prohibits the draft, even though the plain text would seem to. Explanations vary from “a free state has the right to defend itself and that means the draft is inherently within the power of the state” to “the Congress didn’t intend to ban the draft, so they didn’t”.

I respectfully submit that aphrael’s comment reflects an oversimplified understanding of textualism as applied by an adherent of “original understanding” such as Scalia or myself.

“Involuntary servitude” is a phrase that must be interpreted. Justice Scalia has explained that he is not a “strict constructionist” but rather someone who gives legal texts their ordinary meaning at the time of their adoption. Courts have held that the original understanding of the phrase “involuntary servitude” did not render unconstitutional a government’s actions to compel its citizens to perform civic duties such as conscription when necessary to the common defense, jury service, and the like.

Textualism does not say that you can never resort to extrinsic evidence of meaning, or that hyperliteral constructions are preferred. What it says is that evidence of unexpressed subjective intent is not evidence that should be given any legal effect. Textualists don’t care about the lawmakers’ intent unless that intent is expressed in the words of the law.

As I have explained many times, it is antithetical to the rule of law to hold a citizenry responsible for obeying the unexpressed will of legislators. All that matters is what the law says — and how it would be understood by the citizenry at the time of its adoption.

I have seen no coherent argument that explains why the contrary should be true, and as I have written many times before, giving effect to unexpressed intent is not consistent with the rule of law. For example, if legislators meant to cover preexisting conditions for children in Obamacare, but didn’t, what prevails? Their private hopes and wishes for hat they meant the law today? Or the words of the law themselves?

To ask such a question is to provide the answer. The fact that the answer to this question is obvious leads proponents of elevating intent over text to write lengthy and incoherent essays that muddy the issue, because a clear essay would be seen for the nonsense it is. Strategy number two is to conflate textualism with the theory of the “living Constitution” — a position which betrays either intellectual dishonesty, or a deep ignorance of the meaning of original understanding and the jurisprudential views of our best constitutional conservative judges.

This is why reading the Constitution’s text on the House floor was so clarifying — not because textualists believe in giving it a crabbed reading, or one that runs counter the original understanding of the words, but because the words are the touchstone of our national compact.

As we saw yesterday, that simple truth drives the leftists crazy. I’m glad to know the American people have had a chance to see that with their own eyes. It is an important point, and by making a spectacle out of it, the left showed which side they are on — far more clearly than a mere argument from the right could have.

96 Responses to “More on Textualism As the Foundation of the Rule of Law”

  1. “As we saw yesterday, that simple truth drives the leftists crazy. I’m glad to know the American people have had a chance to see that with their own eyes.”

    The reaction of the leftists was like pouring salt on a slug, with the leftists being the slugs.

    daleyrocks (e7bc4f)

  2. Some one should explore Humpty Dumpty’s role here:

    ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

    quasimodo (4af144)

  3. Well said. I’ll bet you’re good at your job, Patterico.

    I would think that writing clear, logical, concise prose would be a minimum requirement for being an attorney. Sadly, it seems to be a less common trait than you would suppose.

    In fact, I wonder if some lawyers-turned-legislators actually write with the intent to obfuscate. And what does THAT say about the literal meaning of the law?

    Gesundheit (cfa313)

  4. “Some one should explore Humpty Dumpty’s role here”

    quasimodo – There are other sites you can go to for that debate.

    daleyrocks (e7bc4f)

  5. What it [textualism] says is that evidence of unexpressed subjective intent is not evidence that should be given any legal effect.

    But how different is the “original understanding” of a law (which you embrace) from the “subjective intent” of a law (which you reject as irrelevant)?

    It seems to me (certainly in the example of “involuntary servitude”) that you’re talking essentially about the same thing, i.e., the extent to which the amendment applies in situation X.

    That’s why I think textualism is a bit of a show/farce. It merely implies fidelity to the Constitution, but at the end of the day, you’re still trying to divine what you think is in the framers’ heads. That’s folly, because (among other reasons) it assumes there is/was a consensus about the “original understanding” of a particular word, phrase, etc. in the first place. And at the end of the day, what happens it that “textualist” judges merely imprint their own personal beliefs as the “original understanding” of the framers (or whoever), and pat themselves on the back that they are being faithful to the text merely because they call themselves “textualists”.

    Kman (d30fc3)

  6. Kman

    like as if you want to be faithful to the framers in any way. you know, because the framers believed that there was a constitutional right to gay sex, right?

    No one who supports the decision in lawrence can pretend they care about the text or the original intent. So please dispense with this dishonesty.

    Aaron Worthing (e7d72e)

  7. “But how different is the “original understanding” of a law (which you embrace) from the “subjective intent” of a law (which you reject as irrelevant)?”

    Kman – When you put back in the word “unexpressed” which you left out before the words “subjective intent” above, the meaning is pretty obvious to most people. What exactly are you quibbling about? Can you be specific?

    daleyrocks (e7bc4f)

  8. Kman – How do you go about determining the unexpressed subjective intent of laws? Why would laws have unexpressed subjective intents in the first place?

    daleyrocks (e7bc4f)

  9. Merely saying unexpressed subjective intent should give yu a clue or fifty, kmart.

    JD (1416bd)

  10. Daley:

    When you put back in the word “unexpressed” which you left out before the words “subjective intent” above, the meaning is pretty obvious to most people. What exactly are you quibbling about? Can you be specific?

    But “original understanding” (as Patterico describes it) is also an “unexpressed” phenomenon, i.e., you need to go beyond the plain meaning of the text as it appears on the page to divine how it is/was “generally understood” (at the time). In other words, it’s built about the fallacious notion that you can get into the heads of the framers.

    So my quibble is: if, as a matter of constitutional interpretation, you are going to reject what Patterico aptly calls “hyperliteralism” (and I think we should), then what’s left is some kind of divination of (a) what we think the framers meant (the textualist approach) or (b) would have wanted (the instrumentalist/”living Constitution” approach).

    But either way, a or b — and this is my point — it’s a divination and subject to the personal whim and bias of the judiciary. That’s what you’re going to get if you stray from hyperliteralism. Which means, when all is said and done, “textualism” isn’t actually any more “faithful to the Constitution” — it just pretends to be.

    Kman (d30fc3)

  11. The “draft” is caused by Climate Change

    Neo (03e5c2)

  12. Is there often some guesswork at the intent of the framers? Sure. Just as there may be some guesswork in interpreting the intent of a contract (particularly where both of the original parties to it have assigned their insterests elsewhere and are unavailable to weigh in). But that doesn’t mean we get to say WHEE! Gordon Liu time! it means whatever the spirit of the age (i.e., the judge’s personal policy preferences) means, yay!

    It’s the latter kind of thinking that led Massachusetts state supreme court justices to discover a right to gay marriage in a document written by John Adams late in the 18th Century. Is it really plausible to believe that the “deal” — the ratification of the Commonwealth’s constitution at that time — was understood by the ratifiers as including such a right? Or is it more plausible to say, No, the constitution was silent on that point, leaving the question to the People for legislation, including possible amendment OF the constitution.

    But liberals — particularly today, with the passing of the few remaining Constitutionalist liberals like Felix Frankfurter and Gerald Gunther — don’t like to talk about constitutions’ built-in procedures for amendments. It’s much more fun to just read new rights into them things. Saves time, convincing people is hard.

    Mitch (890cbf)

  13. Textualists don’t care about the lawmakers’ intent unless that intent is expressed in the words of the law

    Exactly so. If lawmakers intended to ban the eating of tomatoes but the text bans the eating of potatoes, the text overrides the intent. I.e., you can’t eat potatoes even if the intent was to stop the eating of tomatoes.

    And not to be pedantic but Scalia argues that we need to determine what the original “understanding” of the text was not the original “meaning.”

    I think there is a difference between the original “understanding” of the text and the original “meaning” of the text.

    SteveMG (faede2)

  14. Mitch:

    It’s the latter kind of thinking that led Massachusetts state supreme court justices to discover a right to gay marriage in a document written by John Adams late in the 18th Century. Is it really plausible to believe that the “deal” — the ratification of the Commonwealth’s constitution at that time — was understood by the ratifiers as including such a right?

    No, of course not. But you assume a priori that the Constitution isn’t a set of principles which can be applied in a variety of real-like situations (including situations never even imagined by the framers). I know that the Second Amendment right applies to types of “arms” that the Framers didn’t envision because they hadn’t been invented yet; by the same token, the right to marriage applies to types of marriages that the Framers didn’t envision (including interracial).

    Kman (d30fc3)

  15. They slip from saying that the text is sometimes difficult to interpret to saying it is impossible to interpret.

    Also – if we don’t like the text, we can change it, as has been done many times over these centuries. Funny how the only option they see is rejecting the whole thing.

    Maybe the amendment process is too difficult for today’s citizens to understand. Or maybe they are just not interested in the inevitable compromises that a political process entails. Constitutions inherently limit government. Unconstitutional federal usurpation, such as with healthcare, is always unlimited.

    Amphipolis (b120ce)

  16. kman

    > by the same token, the right to marriage applies to types of marriages that the Framers didn’t envision (including interracial).

    actually, the framers of the 14th amendment envisioned interracial marriage all the time. Thaddeus stevens had a long term romantic relationship with a black woman. and during the debates over the 14th A, the racists said that this would result in innocent white women being forced to marry black men. the proponents of the 14th A said, more or less, “no one is going to be forced to marry anyone.” Expressio unius, as they say.

    I know the left is desperate to maintain that loving v. virginia was a judicial activist decision, because it justifies other forms of judicial activism. And i concede that the warren court didn’t pretend to care very much about the constitution itself. but what they did was perfectly in line with a plain reading of the constitution and what we know of their intent.

    But then turning it into gay marriage? um, bull.

    I mean take this passage as a whole:

    > I know that the Second Amendment right applies to types of “arms” that the Framers didn’t envision because they hadn’t been invented yet; by the same token, the right to marriage applies to types of marriages that the Framers didn’t envision (including interracial).

    The founders only said “arms” so it is natural to say that it is not confined to the arms invented at the time.

    by comparison, homosexuality was not invented after the ratification of the 5th or 14th amendments. it existed back then as well, they just had an attitude about it that you would call backwards. and have at it. But the fact remains they they did pass judgment on it and it wasn’t pretty for your position. Sorry, you will actually have to appeal to the people to legalize your lifestyle, kman.

    you want to change a constitution that has specifically written terms into “the judges can just make things up.” why not just cut out the middle man and have our congressmen swear fealty to the S.C. instead of the constitution if that is your attitude?

    Aaron Worthing (e7d72e)

  17. But “original understanding” (as Patterico describes it) is also an “unexpressed” phenomenon, i.e., you need to go beyond the plain meaning of the text as it appears on the page to divine how it is/was “generally understood” (at the time). In other words, it’s built about the fallacious notion that you can get into the heads of the framers.

    It helps to know a bit of history. If you think that the Constitution is “over 100 years old and nobody can understand it” you have marked yourself as ahistorical.

    For example, Andrew Jackson was elected chiefly by “the militia.” Read one of the excellent histories of Jackson. It is clear that the militia consisted of men between 15 and 60. They were the voters who elected Jackson as opposed to the city dwellers and merchants who had elected Adams.

    “Involuntary servitude had a meaning at the time exclusive of slavery or prison. Many white European immigrants came over indentured for several years to pay for their passage, either as apprentices or domestic servants. That was also considered involuntary servitude but it was time limited.

    The very existence of the militia makes your example of the draft nonsensical.

    Read some history.

    Mike K (568408)

  18. They slip from saying that the text is sometimes difficult to interpret to saying it is impossible to interpret

    And because, they claim, it’s impossible to interpret then judges may substitute what they think is “just” or “fair” instead.

    The Constitution then literally becomes a blank slate. But a powerful one. It gives authority – “That’s what they intended” – but no meaning.

    It’s very seductive. Just appoint the Platonic Guardians and let them deal with the messy problems of self-government.

    And they point to Brown in response.

    SteveMG (faede2)

  19. The part where Aphrael erred:

    Almost nobody thinks that the thirteenth amendment prohibits the draft, even though the plain text would seem to.

    Actually, many people have made such a claim, but have been unable to persuade judges of the plain meaning of the 13th Amendment. Then again, for many years judges held that Congress actually could make a law abridging the freedom of speech and that the right of the people to keep and bear arms didn’t actually mean the people.

    If we ever start actual conscription again, someone else will file suit challenging it under the 13th Amendment, and he could well win.

    Representative Nancy Pelosi (D-CA 8) (3e4784)

  20. “by the same token, the right to marriage applies to types of marriages that the Framers didn’t envision (including interracial).”

    Kman – Sure, if you want to ignore all those anti-sodomy statutes on the books, which I’m sure you do.

    Do you like to enter into contracts with large gray areas of unexpressed subjective intent? As a lawyer would you advise clients to do that? Why would you argue one way in your personal life or practice but another way when it comes to the constitution? You have no intellectual honesty.

    daleyrocks (e7bc4f)

  21. Dang it! Forgot to take off my sockpuppet above!

    The Dana caught in sockpuppetry (3e4784)

  22. It would be helpful if the constitution was read for what it is; a contract amongst the people for the purposes of organizing a government of limited scope and powers.

    cubanbob (409ac2)

  23. actually, the framers of the 14th amendment envisioned interracial marriage all the time. Thaddeus stevens had a long term romantic relationship with a black woman. and during the debates over the 14th A, the racists said that this would result in innocent white women being forced to marry black men. the proponents of the 14th A said, more or less, “no one is going to be forced to marry anyone.” Expressio unius, as they say.

    Seriously?

    Teddy has a relationship with a black woman, and racists make a criticism?

    And from that, you make the conclusion that the original understanding of the 14th Amendment was about about interracial marriage?

    That’s an impressive leap.

    what they [the Warren court in Loving] did was perfectly in line with a plain reading of the constitution and what we know of their intent.

    LOL. I think you may be the only person on the planet who thinks the framers of the 14th had the intent of sanctifying interracial marriage.

    If you could somehow transport yourself back in time and do a Harris Poll of the authors and the state legislators who ratified the amendment, they would be like, “What the hell are you talking about son???”

    That said, Loving was correct (and not a judicial activist decision) because it followed from the meaning and spirit of the 14th, as applied to a future (20th century) social construct.

    Kman (d30fc3)

  24. Do you like to enter into contracts with large gray areas of unexpressed subjective intent? As a lawyer would you advise clients to do that? Why would you argue one way in your personal life or practice but another way when it comes to the constitution?

    You’re comparing apples and oranges. Historically, constitutional amendments — which go through drafts, revisions, committees, etc. do not come into being in the same way that contracts are constructed and signed between two private parties.

    The 14th Amendment, for example, has many “authors” — and I doubt that if they were all here and able to speak, you could get a consensus on what the amendment “means”.

    Kman (d30fc3)

  25. It’s interesting how Kman neatly says the opposite of whatever Aaron says. Oh wait. No.

    Dustin (b54cdc)

  26. “Involuntary Servitude” and “…the plain meaning of the Thirteenth Amendment…”:

    I suppose this same “call to civic duty” is what allows local governments, under the threat of criminal sanction (misdemeanors are still a crime and subject to jail-time, which is what they threaten you with if you fail to submit comply) to compel homeowners to expend labor and/or capital on installing and maintaining of landscaping on the so-called “parkway” that extends from the curb to the sidewalk, but is in fact city property.
    Talk about an unfunded mandate.

    AD-RtR/OS! (b8ab92)

  27. “You’re comparing apples and oranges.”

    Kman – Actually, that i9s what you have been doing when you delete words from the sentences people write when you repeat them in your own comments because you have no intellectual honesty.

    Try remaking Patterico’s argument honestly and then proceed from there. I have not seen you do it yet.

    daleyrocks (e7bc4f)

  28. “If we ever start actual conscription again, someone else will file suit challenging it under the 13th Amendment, and he could well win.”

    Representative Nancy Pelosi (D-CA 8) – Not on my damn watch! We need to reinstate the draft to get more rich white boys in the military.

    Representative Charles Rangel (D-Corruption) (e7bc4f)

  29. Try remaking Patterico’s argument honestly and then proceed from there. I have not seen you do it yet

    Shorter Daleyrocks: “I don’t have a response to Kman at #10, so I’m just going to call him intellectually dishonest.”

    Kman (d30fc3)

  30. “and I doubt that if they were all here and able to speak, you could get a consensus on what the amendment “means”.”

    Kman – Because the amendments go through such an extensive drafting process, my first clue with respect to meaning is the words in the text, not social customs in Zimbabwe. Why would someone look elsewhere than the text? Please explain.

    daleyrocks (e7bc4f)

  31. “Shorter Daleyrocks: “I don’t have a response to Kman at #10, so I’m just going to call him intellectually dishonest.””

    Shorter Kman – Daleyrocks has already caught me being intellectually dishonest back at 7 and I don’t have a good response, so I’ll just try to insult him. It probably won’t fool anybody this time either.

    daleyrocks (e7bc4f)

  32. Kman – 27 responds to 10. You remain intellectually dishonest.

    daleyrocks (e7bc4f)

  33. Kman

    First, you asserted that somehow the founders couldn’t “envision” interracial marriage. I have proven that this was a silly assertion. And your response? To change the subject.

    Moving on:

    > Teddy has a relationship with a black woman

    Well, there is a shock. You didn’t actually read the comment, given that somehow you think Thaddeus’ name is “Teddy.”

    > and racists make a criticism?

    And you apparently think that what the racists said was prompted by that relationship more proof of your lack of reading or comprehension. Not quite. I mean they had their own criticisms, but that was a separate criticism. Over and over again, they said that white women would be FORCED to marry black men. And the proponents of the 14th Amendment said, over and over again, that the 14th A is not going to force anyone to marry anyone else, period. It’s the dog that doesn’t bark, you idiot. If they felt that the 14th Amendment would not legalized interracial marriage, THAT WOULD HAVE BEEN THE PERFECT TIME TO SAY IT. instead they only said that the law didn’t force people to marry anyone.

    > And from that, you make the conclusion that the original understanding of the 14th Amendment was about about interracial marriage?

    No, what it is about is racial discrimination—not solely that, but most scholars agree it was the primary issue in their minds. What you want to say is, “its about racial discrimination… except in marriage.” Now it is not impossible to make that argument, but you haven’t done it. you just assume they were backwards and proceed from there. You haven’t bothered to actually learn even the appropriate nickname for the man fawn brodie called the father of the fourteenth amendment, but you pass judgment on what their understanding was.

    This is a straightforward application of the Dartmouth college rule:

    > It is not enough to say, that this particular case was not in the mind of the convention, when the article was framed, nor of the American people, when it was adopted. It is necessary to go further, and to say that, had this particular case been suggested, the language would have been so varied, as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction, so obviously absurd or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the constitution in making it an exception.

    So applied to this instance, I can say for a fact that the case of a interracial couple seeking to get married was very much on the mind of the congress (the equivalent of the convention here). Indeed, if stevens didn’t die just before the final state ratified it, he might very well have tried to marry his lover. The fact was people were constantly demogogued that this would lead to interracial marriage. So the case had been suggested. And the people and the congress had the chance to vary the language to exclude this outcome and failed. So with this case being within the words of the rule, it must be within its operation likewise.

    And yes, the framers were well versed on the Dartmouth standard. They even liked to quote from Webster’s oral argument in that case.

    What the left does is demonstrate a oikophobia, a prejudice toward the founders of the 14th Amendment, presuming they were more backwards than they were. They generally were more racist, but they also loved freedom more, and equality of opportunity more, and that is why they hated race based restrictions, even as they were doubtful of the equality of the races.

    You can mock all you want, but given the ignorance of even things written in this very thread, we will take that mockery as seriously as it deserves.

    And before you say, yes, gay marriage spectacularly fails that test. They didn’t believe that homosexuality would be legal. If they believed for one moment anyone would be confused on the subject, they would have “varied” the language to exclude them.

    > You’re comparing apples and oranges. Historically, constitutional amendments — which go through drafts, revisions, committees, etc. do not come into being in the same way that contracts are constructed and signed between two private parties.

    > The 14th Amendment, for example, has many “authors” — and I doubt that if they were all here and able to speak, you could get a consensus on what the amendment “means”.

    Proving you have only limited exposure to the process of writing corporate contracts between two savy companies. Wow, you are all kinds of sh-tty as a lawyer.

    Aaron Worthing (e7d72e)

  34. Kman – Because the amendments go through such an extensive drafting process, my first clue with respect to meaning is the words in the text, not social customs in Zimbabwe.

    No argument here.

    Why would someone look elsewhere than the text? Please explain.

    If the text is ambiguous/vague.

    Kman (d30fc3)

  35. “Proving you have only limited exposure to the process of writing corporate contracts between two savy companies. Wow, you are all kinds of sh-tty as a lawyer.”

    A.W. – I think you restated a point much better here that I tried to make above about Kman’s intellectual dishonesty.

    daleyrocks (e7bc4f)

  36. “Why would someone look elsewhere than the text? Please explain.

    If the text is ambiguous/vague.”

    Kman – Where would you go to look for the law’s meaning? It’s legislative history, blog posts, articles of social scientists or political scientists, news articles?

    daleyrocks (e7bc4f)

  37. You know, “lawmakers intent” is very similar to “voter intent” – i.e. a vehicle used to steal elections post-facto, and a arena of all sorts of judicial shenanigans. It has the same weasel stench. A spoiled ballot is spoiled – a null vote.

    Eric E. Coe (0283e2)

  38. you need to go beyond the plain meaning of the text as it appears on the page to divine how it is/was “generally understood” (at the time).

    Actually, there is no “plain meaning” of anything if you are limited to the text on a specific piece of paper/parchment/clay, unless it is a page from a very abbreviated dictionary of some language where the definitions of most, if not all, words on the page are defined therein. I do not know for certain what “certain” means without reference to knowledge outside of this post, but it would take quite a few gyrations to make the claim that “certain” means “usually wrong”.

    [FWIW, I’ll attempt to wax philosophical* here for a moment.] There have been various phrases used to distinguish the legal system in the United States from what it is not, though some think it is, or it should be. For example, we have the phrase, “We don’t have a Justice system, we have a Legal system. Or, “We don’t have a system of two sides both looking for the Truth, but a system of two sides trying to prove their explanation of the facts.”

    If we had a system of two sides seeking to find a common understanding of what is true this would not be such an issue. It becomes an issue when professionals try to out-manipulate one another in proving an interpretation of the law that favors their own client, whether or not he is a horse-thief.

    “You say that [it doesn’t mean] what [it] is clearly saying, but…my friend, you’re an educated fool.”**

    *What Is Waxing Poetic
    By Ticara Gailliard, eHow Contributor .The phrase “waxing poetic” dates back to the 19th century, when use of the verb “wax” was expanded from its more practical definition. Over time, people have adopted the word “wax” and paired it with other words so that you may hear “wax philosophical” or “wax lyrical” as well as the more common “wax poetic.”
    Read more: What Is Waxing Poetic | eHow.com http://www.ehow.com/facts_5202380_waxing-poetic.html#ixzz1ANLs4kzb

    **Thanks and apologies to John Michael Talbot

    MD in Philly (3d3f72)

  39. AW:

    So applied to this instance, I can say for a fact that the case of a interracial couple seeking to get married was very much on the mind of the congress (the equivalent of the convention here).

    Your invocation of the “Dartmouth college rule” (and your notion that the framers of the 14th were “well-versed” in the “Dartmouth standard”), all designed to turn your proposition into a “fact”, is hilarious. On the subject of “original understanding”, you just broke Occum’s razor.

    Honestly, I don’t have a counter. I know you’ll want to call me a liar and/or gay, and that’s fine, but on substantive points, I’m happy to let your comment be the final word. Why? Because the contortions within your comment proved my point (about the folly of divining intent) better than I possibly could.

    Kman (d30fc3)

  40. Oh, let me first say (even though I didn’t), that I appreciate aphrael’s point as I think it gave P a good example to Pontificate on and help clarify this issue.

    MD in Philly (3d3f72)

  41. Kman – Where would you go to look for the law’s meaning? It’s legislative history, blog posts, articles of social scientists or political scientists, news article

    After the text and in the case of ambiguity? Legislative history (debates, etc.). Contemporary writings can be helpful.

    Of course, at the point, it gets fuzzier, particularly if the record is incomplete. Why was this word taken out and replaced with this phrase? You can never really know unless it is spelled out someplace. And (particularly with old amendments), it wasn’t.

    You have to make all kinds of inferences (see AW’s comment at #33) which, at the end of the day, is just a guess.

    Kman (d30fc3)

  42. call me a liar and/or gay
    Comment by Kman

    Excuse me, you’ll have to explain your intent there, as I know of no use of the word “gay” that fits the context of “liar”

    Didn’t we once decide to ignore Kman?

    MD in Philly (3d3f72)

  43. Kman

    > Honestly, I don’t have a counter.

    the only honest part of your response is to admit you don’t have a counter.

    you may call it convoluted, but it is no more than recognizing that when the courts interpret the constitution, that future amendment writers write with the expectation that their amendment will be interpreted under similar principles. its not much different than the concept of legislative dialogue by a much more liberal guy than me, guido calabresi and favorably cited in johnson v. transportation agency.

    i could fill an ocean with your ignorance, Kman.

    Aaron Worthing (e7d72e)

  44. If kmart would look at the various amici(?) filed in Heller, he would find that a significant reason behind the 14th-A was the disarmament of the newly emancipated slaves in the states of the old confederacy under some of the earliest “gun control” laws, and this was reflected in the language of Section 1.

    AD-RtR/OS! (b8ab92)

  45. “Involuntary servitude” is a phrase that must be interpreted

    servitude: derived from the word ‘serf’, which is derived from the Latin word ‘servus’, which means ‘slave’. Definition from Webster’s New World Dictionary: 1) slavery or bondage 2) work imposed to punish a crime.

    Slavery, of course, is defined as ‘a human being who is owned as property by another’. Now, despite R. Lee Ermey’s line from “Full Metal Jacket” (“your ass belongs to the corps”) a drafted individual is not a slave. Blame the drafters of the 13th Amendment, if you will, for not expressly stating a military exception in the language of the amendment; but, this isn’t so much something to be interpreted as it is something to be looked up.

    Article I, Section 8, Clause 12: [Congress shall have power] To raise and support armies; Clause 13: To provide and maintain a navy; Clauses 15 & 16 on organizing and calling forth a militia. Nothing in that language says that the armed forces are volunteer only.

    Icy Texan (87db83)

  46. Since the Union had instituted a draft during the Civil War, if the authors of the 13th-A thought that the draft was “involutary servitude”, they most certainly would have included exclusionary language in the amendment re The Draft.

    AD-RtR/OS! (b8ab92)

  47. …has anyone seen that “n” that escaped from “involuntary” above?

    AD-RtR/OS! (b8ab92)

  48. I have seen no coherent argument that explains why the contrary should be true, and as I have written many times before, giving effect to unexpressed intent is not consistent with the rule of law. For example, if legislators meant to cover preexisting conditions for children in Obamacare, but didn’t, what prevails? Their private hopes and wishes for hat they meant the law today? Or the words of the law themselves?

    This is also in response to Kman and in response to Breyers comment on 60 minutes a few weeks ago.

    In the process of enacting any law, the constitution, a constitutional amendment, or even a business contract, the statute, etc will often go through many drafts. Many clauses and or provisions are dropped or changed along the way. It is the final draft of the law or statute or the contract which is agreed upon.

    Breyer essentially stated on 60 minutes a few weeks ago that the 2nd amendment doesnt confer an individual right because a few of the drafters of the bill or rights would have preferred not having an individual right to keep and bear arms is ludicrous. Any earlier draft of the 2nd may have omitted the individual right – but the final text clearly protects the individual right – and the final draft controls.

    Joe (6120a4)

  49. Joe:

    I agree (of course) that the final draft controls… but do you really believe that the final text of the Second Amendment clearly protects the individual right?

    I don’t think it is clear at all, and, objectively speaking, I think one would be hard-pressed to point to the actual words within the Second Amendment which clearly confer an individual right.

    Can’t we all agree that the LITERAL TEXT of the Second Amendment is either silent or ambiguous on the question of collective/individual rights?

    Kman (d30fc3)

  50. What part of “…the right of the people…” do you not understand?

    AD-RtR/OS! (b8ab92)

  51. Kman

    > the final text of the Second Amendment clearly protects the individual right?

    Yes. The people are used when referring to individual rights in the first amendment: “the right of the people peaceably to assemble,” the fourth amendment: “The right of the people to be secure in their persons,” and the ninth amendment.

    but then why should we expect you to actually read the constitution, right?

    Aaron Worthing (e7d72e)

  52. Kman – how many times is the term “people” included in the Bill of Rights. Why would the term people mean an individual right in the 1st, 4th 9th amendment but a collective right in the 2nd.

    Definitions dont change in the space 3 sentences and change back again in 4 more sentences.

    Joe (6120a4)

  53. Kman – Even breyer admitted on 60 minutes that the text confers an individual right – but his rationale for not conferring an individual right was that some of the drafters indicated that they did not support an individual right – and therefore he was free to rule either way irrespective of the fact that the final draft conferred an individual right.

    Joe (6120a4)

  54. Wow, the vitriol…I suppose I have to risk vehement attack to side with Kman, but I think he’s mostly right on three counts. First, it seems true on its face that we should all agree that none of us believe in “textualism” as someone who only hears that term would understand it — otherwise the 13th amendment would certainly prohibit the draft and jury duty. It may well be true that the authors meant involuntary servitude to exclude servitude to the state, but *that’s not how the text reads*. So you don’t believe in textualism, you believe in original intentism. Which is fine, but can we be clear on that? If you disagree, please explain how the 13th amendment’s *text* can be interpreted, via textualism, to mean that jury duty and the draft are ok.

    Second, if you’re ok with original intentism (that the 13th amendment really does mean to allow involuntary servitude to the state for certain civic duties despite this exclusion not being present in the actual text), what moral rule are you using to say it’s correct to ascribe things that aren’t in the text to the text due to original intent, but not unintentional mistakes that the authors might have made that cause the text not to reflect their original intent (potatoes vs tomatoes)?

    Third, after accepting point 1, the differences between the living interpretations and the dead interpretations seem very small — in once case, you’re interpreting what the authors meant at the time and in the other case you’re interpreting what the authors would have meant if they had all the new information about things they hadn’t seen yet. And between those two approaches, why would excluding information be a bad thing?

    Ben (b426c4)

  55. Ben

    our vitriol toward kman is only related to the fact it is kman and he argues in a fundamentally dishonest way, often literally commenting without bothering to read the post, for instance.

    Aaron Worthing (e7d72e)

  56. One is the obligations of citizenship, the other is
    a state when you are property to another human being, sure they match.

    narciso (6075d0)

  57. Ben

    no, its all about what the term “involuntary servitude” and “slavery” means.

    the fact was slavery and involuntary servitude was already illegal, except for black people. The state and the federal government had rules and laws in place that made it unlawful to kidnap, hold hostage and press into labor a white man. And yet all of those laws were always considered as having an exception for things like jury duty, and conscription. all the thirteenth amendment did was take those traditional rules and apply them equally across the races.

    That’s how a textualist deal with the question and without getting into subjective intent.

    Aaron Worthing (e7d72e)

  58. So, when the general militia was called up, was that to be considered involuntary servitude?

    Richard Aubrey (59fa91)

  59. Aaron, however you’d like to explain it, can we all agree that textualism does not mean “determining the intent of a law solely with respect to its text”? Perhaps the only thing that’s bothering me is the labeling; it seems clearly false or misleading to label a belief that laws can be interpreted via extra-textual clues as “textualism”, wouldn’t you agree?

    Ben (b426c4)

  60. …and do you (Aaron) and Patterico fully subscribe to the text+historical context method of interpretation? How could the historically-accurate definition of ‘arms’ include semiautomatic handguns for instance? If the intent of the authors is to be totally disregarded, it seems like there shouldn’t be any Constitutional prohibition on state-level handgun control laws. Only through guesses that the intent of the authors was to protect citizens from an oppressive government can we conclude that there is a right to bear semiauto handguns, right?

    Ben (b426c4)

  61. It is reasonable to assume that was not the intent, here;

    http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html

    narciso (6075d0)

  62. no, word by themselves will not answer every question. you do have to figure out what they mean.

    For instance there is a passage saying that states are guaranteed a republican form of government. OMG, that means the democratic party is illegal, right?

    No, you go back and say, “when it was written, there was no republican party. so ‘republican’ obviously is talking about government by the people, i.e. representative democracy.”

    But figuring out what words meant is different than intentionalism.

    its not as bad as some hippy crap about following the “spirit” of the document, but its bad enough.

    Aaron Worthing (1a6294)

  63. How could the historically-accurate definition of ‘arms’ include semiautomatic handguns for instance?

    That’s pretty simple. The historically-accurate definition of “arms” was a weapon typically carried by an infantry soldier. Which would include everything up to automatic rifles.

    Some chump (4c6c0c)

  64. narciso, that wasn’t the what now? Intent?

    Ben (b426c4)

  65. “The draft was a form of involuntary servitude.”

    Yeah, that’s right. It’s flatly against the law to force people to serve in the military against their will, It’s just another form of slavery, and it’s also a great moral evil.

    Naturally, the “liberal” scum in the Slaveowner party, men like Wilson, Roosevelt and LBJ, loved the idea.

    Once a slaveowner always a slaveowner, I reckon.

    Dave Surls (271386)

  66. Some chump, what source do you use to assert that the correct definition of arms? And by your definition, wouldn’t that mean that flamethrowers, grenades, and RPGs are ‘arms’?

    Ben (b426c4)

  67. Aaron, it seems like there’s still a problem with intent versus word meaning. Surely it’s true that ‘involuntary’ and ‘servitude’ meant basically the same thing when the 13th amendment was written than they do now — the issue is whether ‘involuntary servitude’ means something different than the combination of the two literal words. Doesn’t that seem a lot like judging the intent of the authors?

    Ben (b426c4)

  68. Comment by Some chump — 1/7/2011 @ 3:30 pm

    “Arms” also certainly included “edged weapons” which were commonly carried by people engaged in pursuits other than military duties, and yet today, in jurisdiction after jurisdiction, one finds very onerous laws regulating the carrying of “edged weapons”.
    Will the extension of Heller and MacDonald finally allow “the People” to avail themselves of such “arms” again?

    AD-RtR/OS! (b8ab92)

  69. When freedom of the press came about, magazines and the internet could never have been imagined.

    JD (1df0ee)

  70. Comment by Dave Surls — 1/7/2011 @ 3:38 pm

    Let us also not allow our Leftist breathern to forget that not only was it a Republican President that ended slavery, but it was a Republican President that ended the draft.

    AD-RtR/OS! (b8ab92)

  71. JD, exactly my point. The framers’ definition of press in its historical context cannot possibly have included television, so it seems like the (in my opinion, prudent) interpretation that freedom of the press includes television is based on an interpretation of the framers’ *intent* rather than a strict definition of the words as interpreted in their historical context as Aaron seems to be advocating.

    Ben (b426c4)

  72. Ben

    Where in the constitution does it give congress the right to regulate television?

    Aaron Worthing (1a6294)

  73. “Let us also not allow our Leftist breathern to forget that not only was it a Republican President that ended slavery, but it was a Republican President that ended the draft”

    Yeah, that’s why I think Nixon was one of our better recent presidents. That act alone lifted him head and shoulders above any statist Dem that ever crawled out from under a rock.

    Dave Surls (271386)

  74. Aaron, where in the Constitution does it prevent the states from regulating television? My point is that an interpretation of only the first amendment’s words and phrases in historical context (as I understand your stance) results in no specific protection of press freedom via television in the first amendment. Would you agree or disagree with this characterization?

    Ben (b426c4)

  75. “Doesn’t that seem a lot like judging the intent of the authors?”

    Ben – It seems more like understanding the meaning of the words in the text, but your mileage obviously differs for some reason.

    daleyrocks (e7bc4f)

  76. Ben,

    The Wireless ship act of 1910 essentially gave the power to the Federal Government to reguate al communications originating or terminating within the USA and its Teritories

    EricPWJohnson (2a58f7)

  77. EricPWJ, I apologize for not making myself clear; I am unconcerned about whether or not the federal or state governments have the right to regulate television; I am asking whether the first amendment protection of freedom of the press should apply to television journalism based on Aaron and Patterico’s definition of Textualism where only the meaning of the words, with assistance to their historical context, may be considered when there is no definition or historical context for ‘television’ within the first amendment.

    Ben (b426c4)

  78. Communications Act of 1934
    In 1934 Congress passed the Communications Act, which abolished the Federal Radio Commission and transferred jurisdiction over radio licensing to a new Federal Communications Commission, including in it also the telecommunications jurisdiction previously handled by the Interstate Commerce Commission. Title II of the Communications Act focused on telecommunications using many concepts borrowed from railroad legislation and Title III contained provisions very similar to the Radio Act of 1927.

    AD-RtR/OS! (b8ab92)

  79. The Wireless Ship Act of 1910 gave the power to regulate all airwaves including the Press if they so choose to use it

    EricPWJohnson (2a58f7)

  80. “based on Aaron and Patterico’s definition of Textualism where only the meaning of the words, with assistance to their historical context, may be considered when there is no definition or historical context for ‘television’ within the first amendment.”

    Ben – Somehow I doubt A.W. and Patterico would agree with your restatement of their positions.

    Can we agree (as you are fond of asking) that the first place to look for the legality of a government action is the language of the constitution. After agreeing upon that, your position seems to be that if the exact scenario under review is not spelled out in the constitution, a textualist approach is invalid. I disagree. I don’t want to put words in the mouths of A.W. and Patterico, but I think a textualist would make an analogy of the situation under review to a provision of the constitution to determine to determine if a law is valid. Again, the idea is to go back to the original text, not the jurisprudence of France or current societal trends. Somehow you have trouble getting your arms around that concept.

    daleyrocks (e7bc4f)

  81. I was mocking you, Ben. The idea of the press existed independently of the physical form it took at the time.

    JD (1df0ee)

  82. One might argue the problem began here, or it’s predecessor the Wireless Act of 1910; another progressive innovation,

    http://en.wikipedia.org/wiki/Radio_Act_of_1912

    narciso (6075d0)

  83. I thought the nonsense about the 14th and the Draft had been settled by the courts (saying, IIRC, the draft was not involuntary servitude, we’d volunteered by signing up with the Selective Service, which was a raising of an army!)

    Wireless Act of 1910 was the nose in the tent.

    htom (412a17)

  84. daleyrocks, yes, absolutely I don’t think we should have any problem agreeing that the first place to look for the legality of a government action is the language of the Constitution (including amendments).

    But I don’t see how your guidance of making an analogy of the situation under review to a provision of the Constitution works in many cases when the Consitution didn’t consider advanced technology; who decides which analogies are valid? Take the question of whether RPGs are ‘arms’, for instance. Under Some chump’s definition, they are arms and the right to bear them shall not be infringed. Under many other reasonable definitions, they are not. I don’t see what guidance the Constitution provides here until we take the authors’ intent when writing the Second Amendment into account; do you think we can resolve whether RPGs are ‘arms’ under the Second Amendment by considering only the text and the historical interpretation of that text?

    Ben (2f25a5)

  85. “But I don’t see how your guidance of making an analogy of the situation under review to a provision of the Constitution works in many cases when the Consitution didn’t consider advanced technology”

    Ben – What do you suggest we do, throw up our hands and quit, flip a coin, use a Ouija board?

    “who decides which analogies are valid?”

    Ben – Why that would presumably be the people attempting to craft a law if they cared about its legality or the judge(s) reviewing a dispute over an issue relating to it.

    Since you keep returning to the same talking points, it appears to me you lack imagination and critical thinking skills on this subject and have not been exposed to much real world litigation to understand how the concepts are actually applied. Scalia opinions, although he is an originalist, would be a good place to start.

    daleyrocks (e7bc4f)

  86. daleyrocks, No, I suggest using the typical way people (including narciso above; see 61 & 64) figure it out; intent of the authors.

    You’ve said that judges should use the original Constitutional text to figure out what something means. And, when that’s unclear, they should use analogies which are determined to be appropriate or not…by judges. Ok, you still haven’t established what the guiding principle for making analogies is. And the only straight answer I’ve gotten to the question of how the original text of the Second Amendment can decide the question of whether RPGs are arms is Some chump’s answer which seems to be that they *should* be protected under the Second Amendment.

    But I can see this is not the place to go for better understanding. I’ll see about coming back when I have been exposed to much real world litigation, which will be never because I’m not a lawyer. If this is how you interact with someone who agrees with you, I suggest you consider the probability of changing the mind of someone who disagrees with you.

    Ben (2f25a5)

  87. Daleyrocks – sometimes people are just nozzles. Or, they are intent on not understanding points clearly made.

    JD (0d2ffc)

  88. The framers’ definition of press in its historical context cannot possibly have included television

    Not correct at all.

    The freedom of speech and the freedom of press where general to speech and political discussion, and obviously include television.

    Press did not refer just to people who owned presses, but also to people who had pens.

    Smells like straw in here.

    Dustin (b54cdc)

  89. “Ok, you still haven’t established what the guiding principle for making analogies is”

    Ben – I believe I have repeatedly said the text. Theoretically the intent of the authors of a law should be embodied in the text of a law, just as the intent of the framers of the constitution was embodied in the text of the constitution. These are not difficult concepts.

    The constitution is the framework by which we govern our country. Why do you feel a need to look outside it rather than to look inside to determine if it is applicable to a situation. You have no flexibility or imagination.

    daleyrocks (e7bc4f)

  90. . “If this is how you interact with someone who agrees with you, I suggest you consider the probability of changing the mind of someone who disagrees with you.”

    Ben – People here have been more than polite to you today given your demonstrated inability to restate and grasp simple concepts. Good luck.

    daleyrocks (e7bc4f)

  91. And by your definition, wouldn’t that mean that flamethrowers, grenades, and RPGs are ‘arms’?

    Absolutely not. Those are ordnance, not arms.

    Some chump (e84e27)

  92. Here’s a good definition of arms

    and a quote:

    Small arms is a term first recorded in use in English in the early 18th century and used to define firearms capable of being carried in the hand. The exact etymological position of heavy and medium machine guns in this context is unclear, but they are now generally included within the term, to the exclusion of ordnance and machine guns and cannon mounted on aircraft and ships, but including anti-armour weapons and light, portable mortars. Essentially a military term, the development of small arms has generally been stimulated by warfare, driven by technological advances, and has accompanied significant changes in battlefield tactics.

    By the way, something like grenades or flamethrowers would have been carried by grenadiers, not infantry.

    Some chump (e84e27)

  93. __________________________________________

    For example, if legislators meant to cover preexisting conditions for children in Obamacare, but didn’t, what prevails? Their private hopes and wishes for hat they meant the law today? Or the words of the law themselves?

    The reason I hone in on people’s gut biases — their ideology — is because in so many instances that ultimately determines how they’ll process information, including whether they’ll be textual or not. So I can see a variety of folks on the left being textualists when it suits them (ie, laws composed by liberal legislators) and some folks on the right trading places in such instances.

    But in general, liberals tend to be sloppy about upholding standards, and textualism is analogous to respecting traditional forms of etiquette or a more disciplined approach to, say, education in the classroom. Sort of like teachers proclaiming: “Good grammar is so old-fashioned and uptight! It’s so, uh, boring! Do-your-own-thang speech patterns and even Ebonics are just as nice as anything else. They mirror the wonderfully free, kind-hearted, hip expressiveness of people today!!”

    Mark (3e3a7c)

  94. you know, to sum it all up, i think the best argument for textualism is this.

    People should be able to open the law books and half half a chance of actually figuring out what their rights and obligations actually are.

    And when laws are proposed, the people should have half a chance of understanding what they are.

    The first point is a matter of due process. While ignorance of the law is no excuse for breaking it, there we should not make the law too obscure.

    The second point is a matter of democratic legitimacy. how can we govern ourselves if we have no chance of knowing the laws made?

    Aaron Worthing (1a6294)

  95. JD wrote:

    When freedom of the press came about, magazines and the internet could never have been imagined.

    Well, maybe not the internet; Al Gore hadn’t been born yet, so he couldn’t have invented it that early.

    But that’s why the Framers included a provision to amend the Constitution. Like Senator Richard Durbin (D-IL), the Framers recognized that only Senator Moses (R-IS) ever delivered a perfect law, and that some changes might need to be made to the Constitution.

    Our friends on the left seem to have some very significant problems with the absolutist terms in which the First and Second Amendments are written, but, for some unknown reason, never make any actual attempts to pass constitutional amendments to modify what those amendments specify.

    The textualist Dana . . . and a shameless blog whore (132cf8)

  96. Now, the interesting thing, is that was happening at the time of Miller’s enactment, ah Machine Gun Kelly, Bonnie and Clyde, so they were less concernedwith the plain text requirements of the law, one of the issues was whether the National FireArms bill, was regarded as a revenue bill, not that has any bearing on current day events.

    narciso (6075d0)


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