Do you think that the Constitution of the United States needs to be tweaked?Watch
- Political Ambassador
And on your "black folks" comment - how exactly does it discriminate against you, in your view?
The contentious issue is rather who should have the power to adjust the document. Article V lays out specific procedures for doing so. What about judges? Or can the language of a document change without the intervention of judges?
Ronald Dworkin argues for a constructive view. But, at least in my view, the meaning of language cannot change independent of a speaker's intent. For example, consider what it would mean to take someone's words out of context. I argue that if you misquote me (or take my words out of context), it doesn't alter the actual meaning of my statements, which were made at the time they were said.
For the sake of argument, lets say that I accept your view that social circumstances alters meaning (the meaning changes based on societal opinion). First, doesn't that seem in tension with the fundamentally un-democratic (un-social) purpose of the Constitution (which is to provide consistency regardless of majority opinion). And why are judges best suited to determine social meaning?
I bring up ideas within philosophy of law to clarify your views. You argue that judges do not change language, but rather their interpretation. OK. This commits you to the view that social facts have already changed the meaning of the language. I simply disagree.
You argue that judges "ought to retain interpretive power [...[ to preserve liberal democracy." I'm guessing you mean to protect the "liberal" part of "liberal democracy." That's fine. My issue is simply this: social meaning is determined by social facts. Social meaning changes based on social consensus ("majority," if you will). In my view, liberalism is committed to things independent of social facts. That is why they are "un-democratic." Thus, in my view, judges cannot rely on "social change" to create (or delete) rights, if they are to protect the "liberal" in liberal democracy. And, of course, hard judicial review in fundamentally un-democratic. I accept this, and I support judicial review. But only insofar as they are to protect liberalism. Not to enact "democratic" change, where democracy is the implementation of policy or meaning by virtue of social support.
I was not implying I could change your views, merely to clarify my understanding of your views. Nor am I questioning your credentials.
A few points.
Majority support for a system does not entail majority support for policy, or the meaning of language. That is my contention. We can have majority support for liberalism broadly defined, and majority support for torture. I find judges justified in striking down policy enabling torture regardless. This is what I mean by un-Democratic. I’m sure you agree.
I’m not sure why you think jurisprudential considerations are superfluous here. You argue that judges ought to interpret the meaning of law in light of the social meaning of words. This seems pretty relevant to jurisprudence. And on that note, I think you can be committed to positivism and believe that a rule of recognition DOES NOT include what society thinks is the meaning of words.
Next, I disagree that judges “do not change language.” Like I said, I’m committed to the philosophical view that language does not change by social meaning, and is “fixed” to intent (broadly speaking). I think judges ought to not change language, but that’s a different matter. We both agree that judges should not change language. I’m using jurisprudential concerns to highlight where our true disagreement comes from.
The fact that you are a positivist is pretty relevant here. While judges do not take a marker to the document, it seems clear that judges either “make new law” (whether by mistake (Hart) or otherwise (Shapiro), or they “discover” law (natural law). You keep saying that judges “interpret” law. This does not say much. Interpretation is still a change in law or a discovery of new law.
You argue that there is no way to know the "intent" of speakers, especially when it comes to the Constitution. I agree. But in my view, public-meaning originalism does well in working around this criticism.
You raise the well-known "dead-hand" objection. Why should society be bound by the intent of long-dead drafters? My response is probably too hard to communicate in a TSR post. But I don't find the objection convincing. To give the dead hand objection normative force is to presuppose the undesirability of being ruled by the dead. But the very nature of law is that it survives people. Considerations grounded in rule of law, in my view, outweigh the considerations of popular sovereignty. Just like in cases of judicial review.
Yes, judges must apply the law to present-day cases. But to attempt to find a way to "fix" the meaning of the Constitution is, in my view, important to preserve rule of law. Your altogether dismissal of originalism is unsettling. It is a view held by a substantial number of federal judges. It is a view held by prominent academics. This includes liberal thinkers (Amar, for example). You keep referring to "present-day democratic legitimacy." Yet, judicial review, like you admit, is fundamentally un-democratic. So I'm not sure democratic legitimacy is the right route to go here.
I don't deny that the listener plays an important role in determining the meaning of language (by language I mean the language of statements). I am merely privileging the listener at the time the law was ratified. I am arguing that judges ought to feel bound by an obligation to interpret the law as it is. That judges ought to be encumbered by a sense of obligation independent of incommensurable values or determinations of public opinion.
You bring up Heller. I find this to be a poor example. There are lots of better examples in my view (Bush v. Gore, for one). But Heller seems pretty consistent. There is an operative clause and a prefatory clause. This is pretty clear, and it was pretty standard phrasing at the time. The meaning of military in the 18th century was much broader than it is today (insofar as we have one, notwithstanding the national guard). It encompassed all able-bodied men. The word "regulated" in the 18th century meant organized, but not regulatory in the government sense as it does today.
You argue that the founders never intended for the Bill of Rights to be enforced upon the states. This is an especially odd argument. Amendments are part of the Constitution. The 14th Amendment is part of the Constitution. Having a "fixed" sense of the Constitution does not preclude amending the Constitution (Article V explicitly lays procedures for doing so). Indeed, I am sympathetic to Sunstein's view of "Constitutional moments."
You also bring up the British rule of recognition. This is misleading in the U.S. context. You correctly state the secondary rule in the UK context. This parliamentary sovereignty encumbers judges with an obligation independent of their views on incommensurable values or public opinion. They are fixed by Acts of Parliament. Therefore, I see no issue.
The US is altogether a different case. The Supreme Court is not obligated to Congress in any relevant sense in cases of theoretical disagreement. Thus, the power dynamics are different The Justices are obligated only to the Constitution. In my view, a theory of constitutional interpretation must preserve that obligation.
I'm not sure why we cannot come to some agreement here. You argue that Scalia's analysis is void of intellectual honesty because he engaged in linguistics. This seems strongly misguided. Originalism is not a sole commitment, nor is it a primary one. Textualism, of which Scalia was an avid proponent, is heavily grounded in linguistics. And no originalist would privilege intent over plain meaning. Originalism comes to play only in very specific cases of ambiguity (like "cruel and unusual").
And here, I think Heller is well grounded. It is a common view that Heller properly distinguishes between the prefatory and operative clause. You say that you support a reading of the 2nd Amendment where states have a right to militias which the federal government cannot disarm. Again, you are misusing the term "militia." A militia was not controlled by the states nor the federal government. A militia in the 18th century referred to a body of people. You are ignoring the rich history of the constitutional use of "the people." The Second Amendment famously says "...the right of the people..."Those words are extremely significant. You say that the history is clear.
Richard Lee: "A militia, when properly formed, are in fact the people themselves …"
George Mason: "I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them."
The Philadelphia Federal Gazette (1789): "the people are confirmed by the next article in their right to keep and bear their private arms."
You say that the original meaning of the 1st Amendment protected nothing other than prior restraint. But you ignore Jefferson and Madison's staunch opposition to such laws. And you ignore the public meaning of the First Amendment (Jefferson was elected, in large part, due to his argument that the Alien and Sedition Acts were unconstitutional). The Supreme Court declined to hear cases challenging laws against libel against the government. This alone is not determinative. All it suggests is a lack of precedent (until the 20th century, where the Supreme Court vigorously struck down laws under free speech). I find Scalia's expansive view of "or abridging the freedom of speech" consistent. You make a big deal of the paradigm shift in Gitlow. Do you deny that the "original meaning" of the 14th Amendment, in its due process clause, does not include incorporation? The 14th Amendment directly, and explicitly, applies to the states. You say that the meaning post-Gitlow is directly contrary to the original meaning of the 2nd Amendment. I simply do not find such an incoherence, if you correctly define "militia" as being "the people." You can make a reasonable argument that the framers never considered that a state would disarm its own people (this would have seemed irrational). But in the absence of clear public meaning, I would go with the clear language of the Amendment. And besides, the prefatory clause of the 2nd Amendment opines that a militia is necessary.
You say that you understand the meaning of militia. Okay. But you make two discrete arguments, both of which I think are largely wrong.
(1) You say that states had laws regulating firearms. I take it that you know Heller does not proscribe all regulation of firearms. You cite Blackstone. But the 2nd Amendment must be viewed in light of the American Revolution. It seems obvious why the American conception of a freedom to bear arms would be more expansive than England. We had just won independence from the Crown by making use of such a right.
(2) You say that our federal government is beyond the Founder’s comprehension in power and scope. This is true. But it seems perverse to interpret words intending to restrict federal power and say that, because the federal government in practice as grown massively, the meaning has changed. The 14th Amendment was a paradigm shift. Precedent is important. But the Bill of Rights served primarily to enjoin the government from infringing on certain rights. First, to argue that the 2nd Amendment right “of the people” is actually a right by the state to have a milita seems incoherent. The framers knew the difference between “state” and “people.” Look at the 9th and 10th Amendment, for example. Second, these rights aimed to restrict the government. To say that the government has outgrown these rights post-Gitlow seems circular.
You say that it’s false that we used a legal right to overthrow the Crown. That is true. I think I didn’t communicate clearly. I meant we used privately-held firearms to overthrow the Crown. And it’s not surprising that we would value the possession of firearms in light of our revolutionary tradition, over the British.
I do not have any illusions of the God-like qualities of the founders. But more people agree to public-meaning originalism (and textualism) when it comes to statutes. In the UK, intent originalism is somewhat popular for statutory construction. I simply view the Constitution as a “special” statute- a superior statute. I do not view it in the almost-metaphysical way that others do, wherein the Constitution serves as a fountain of previously-undiscovered rights. Senators are not gods either. But say that the Senate were to pass a law banning the ownership of chickens. Say that the word chickens, 200 years later, generally means hens (male chickens are only referred to as roosters). I would still think that the law bans both male and female chickens. I understand that the 2nd Amendment is a much more complicated story. But this is why I am resistant to the idea of the “social meaning” of a statement.
I am not aware of any federal banning of firearms generally in our history. But you point to local and state ordinances that restrict firearm ownership. That is interesting. But let’s say that you agree with me that, originally, the second amendment prevented federal proscriptions on firearm ownership, but not state. Let’s further say that the 14th Amendment incorporates the Bill of Rights (I’m setting aside the question of whether incorporation is consistent with the 14th Amendment for now). I don’t think it’s a big stretch to then incorporate the 2nd Amendment to the states. I think if the 2nd Amendment validly restricted the federal government, incorporation can validly restrict the states. The nature of the right seems to be the same. You say that the milita were to be the national defense force. Perhaps now I will sound like a crackpot to you. But in every hypothetical or wargaming scenario I have read that involves an invasion (I understand this to be almost-absurd given nukes and the position of the US), the private ownership of firearms has always been a factor. I’m not sure why private ownership necessarily can’t fulfill some unlikely, hypothetical defense purpose. It may not be needed. But necessity doesn’t seem a good argument for taking away a constitutional right. In the future, perhaps one could argue a free press on top of free speech is not necessarily needed (because of Twitter, god forbid).
(1) Properly placed in historical context, the 2nd Amendment right cannot be separated from its presupposition of a "militia" body (broadly construed) and its intended purpose of national defense. States were largely free to regulate such the firearm ownership of a militia.
(2) The 2nd Amendment had historically nothing to do with private ownership.
Even if I accept your first premise, your claim of private ownership does not follow. I am still not sure how you can possibly claim that the 2nd Amendment had no connection with private ownership. In the 18th century, those members of a "militia" (construed as a broad body of able-bodied men) were expected to produce their own private firearms. The existence of a large standing army was anathema to the founders. Presupposing the existence of a militia without widespread private firearm ownership seems odd, to say the least. A militia was a body of armed citizens. The 2nd Amendment must have, therefore, limited the federal government's ability to ban firearm possession. And, true to form, no such law has ever been passed by the federal government.
But you argue above that the only way to get private ownership from the 2nd Amendment is "to make it up." To make this claim, it seems you would have to give an extraordinary amount of control to a prefatory clause, endowing upon it not only operative power but also the power to override the operative clause.
And again, placed in proper historical context, the phrase "well-regulated" does not imply government control. Regulation, not by government edict, but by training. It was expected that militia members were to train regularly, on their own and in small groups. But to condition the operative clause on the training is untenable. It is a nonbonding declaration of purpose, much like the Preamble.
You say that you cannot subscribe to any of my analysis. Respectfully, I'm not sure that's right. I see a lot of agreement, and a clear point of disagreement.
You argue that a right to X ≠ federal government lacks the authority to control X. I think you are being rhetorically slippery here. All Constitutional rights work in this way (at least most of them). A right to free speech is a restriction on the government's authority to control my speech. I have this right even though Facebook can censor my speech all they want. In the context of constitutional rights, this is simply how we use the term. It's a negative right that applies only to the government.
Now, you point out that "the government" did not include states in the 18th century. This is true. But I think the arguments you make from this premise (that I accept) is where you and I diverge.
I think we can both agree on these things. (1) Newer amendments override previous amendments (think prohibition). (2) Amendments are part of the Constitution.
I would take the following steps. First, I would find that the original meaning of the 14th Amendment includes incorporation. Second, I would take that to "override" part of what the 2nd Amendment originally intended so as to expand its scope to the states. Third, I would preserve the rest of the 2nd Amendment as originally intended.
I understand you as agreeing that the original meaning of the 2nd Amendment as limiting the Federal Government's authority to regulate private firearm ownership. I hope I'm getting that right.
You argue that originalists cannot, post-Gitlow, understand the 2nd Amendment as prohibiting the states from banning private firearm ownership and still be faithful to originalism. I agree that, pre-Gitlow, the original meaning would not have prevented states from regulating firearms. But originalists do not deny the existence of post-Bill of Rights amendments. We look to the original meaning of the newer amendments as well. They can override older parts of the Constitution (except clauses expressly immunized from repeal). I understand the original meaning of the 14th Amendment to include incorporation. Original meaning of the 2nd Amendment + 14th Amendment's partial "override" of the 2nd Amendment (by expanding its scope) + working to preserve the rest of the original meaning of the 2nd Amendment = restricting the states' ability to regulate private firearms.
You could argue that this would render the 2nd Amendment's original meaning incoherent. For the reasons I give above (understanding what "well-regulated" and "militia" means in its proper historical context), I disagree. If you agree that the original meaning of the 2nd Amendment restricted the federal government's ability to proscribe firearms, I'm not sure how tenable your position is. The 14th Amendment simply overrides the "federal" part of the 2nd Amendment's original meaning and expands it to also include the states. You are probably right that, had this "original meaning" been presented to a pre-Gitlow judge, it would be laughed out of court. But, pre-Gitlow is pre-14th Amendment. It should come as no surprise that the 14th Amendment altered the Constitution. Originalism does not force us to throw the baby out with the bathwater. The 14th Amendment can apply, it can apply backwards to past Amendments, and it does not mean we have to throw out the entirety of the 2nd Amendment's original meaning.
"Original meaning" does not mean "let's blindly look at the 18th century." As Scalia, and others, have repeatedly stressed: originalism is fundamentally about restraining judicial power in the absence of a democratic change to the Constitution. The 14th Amendment counts as such change.
Not to mention we already have done and continue to do it tons of times. Like, the 2nd amendment is not absolute since it is an amendment by it's very definition and name!
No one is saying that the 2nd Amendment prevented states from regulating firearms "all along." Before the 14th Amendment, this is clearly false. The Bill of Rights applied only to the federal government.
You argue that finding such a right post-Gitlow would be moving a state right into the Constitution. Not at all. It would be interposing a Constitutional amendment (14th) to a prior right (2nd).
I think this debate can use a bit more analytical clarity in this respect. You have not made these two arguments explicitly, but I think they underlie your criticisms.
(1) "the people," as used in the 2nd Amendment, refers to a collective, not private, right.
(2) Incorporation is not consistent with originalism.
But these arguments are altogether different than the ones you have raised. You argue that, because the 2nd Amendment did not apply to states, the 2nd Amendment does not protect a private ownership right. This argument is not fully sound. Just because it does not apply to the state, does not mean the right does not protect private ownership. It prevents the federal government from restricting private ownership. I'm not sure why this is acting as a stumbling block for us.
Like I have argued before, a "militia" means something much broader than current use. I point you to 10 U.S. Code § 246. And the states expected those citizens called to service to bring their own firearms. Private firearm ownership was part in parcel to a "well-regulated" (effective) militia. Thus, the 2nd Amendment protects the right of private firearm ownership from the federal government. And besides, I again point you to the prefatory/operative clause distinction, which was a widely-used construction in the 18th century.
You rebut my argument by saying "that is not originalism." Some have leveled similar arguments against Solum or Barnett. Perhaps they are fair, but those arguments have a different flavor when coming from outside the originalist tradition. As I have argued, originalism takes into account the original public meaning of constitutional provisions. No one disputes that the 14th Amendment changed the Constitution. What is "un-originalist" about examining the original meaning of the 14th Amendment? What is "un-originalist" about seeing where the 14th Amendment alters prior Constitutional clauses? No one disputes that the original meaning of the 18th Amendment was to prohibit the sale of alcohol. Yet the 21st Amendment had no trouble overriding that Amendment. Why is it impossible for there to be a "partial override" or change as well? The 26th Amendment lowered the voting age. We did not take that to mean we would thus throw out every Constitutional clause pertaining to elections. And nothing about interpreting Constitutional clauses regarding voting faithfully to its original meaning (while understanding the lowered voting age from a superseding Amendment) is un-originalist.
I think, as of now, you fundamentally misunderstand contemporary originalist scholarship or the originalist position. The public rhetoric around originalism is overly simplistic and confusing. Even Scalia, in his eagerness to "spread the gospel," if you will, was guilty of oversimplification. Originalism does not mean we ignore later amendments. Originalism primarily means we look at the text of the Constitution, and we understand those words to mean what they meant when they were written. Nothing about that forces us to remain stuck to the 18th century meaning in the face of a superseding Amendment.
Indeed, Scalia welcomed change. He was a fully-committed legal positivist, and he had a healthy respect for democracy. In the absence of a clear constitutional mandate, he advocated for leaving the policy to democratic choice. And in constitutional interpretation, he welcomed constitutional amendments. The procedure for doing so is found in the plain text of the constitution. The procedure is democratic. And successful amendments are part of the Constitution, the document he so loved.
I am not arguing that the 14th Amendment allows us to "find" a right in the 2nd Amendment to private ownership against the states. I am saying that the original meaning of the 2nd Amendment restricted the federal government's ability to regulate private ownership. I am further saying that incorporation applies that restriction to the states as well.
You keep insinuating that the 2nd Amendment is a right held by the states. You do so by pointing to the language of "militia." But this is clearly false. The 2nd Amendment is a right held by "the people." When the framers were talking about a state-held right, they were explicit and clear about doing so. There was no confusion. They knew how to say "of the states."
I am actually much more sympathetic to the argument I raise in (1). I find it much more plausible than the argument you instead raise. Amar calls (1) the "communitarian" view. It is, in my opinion, more tenable than your position. But for the reasons I have already given (the historical connection between private ownership and collective defense), I reject it.
I don't disagree with what you're saying here. But these arguments decisively fail to defend your claim. I can have a right to free speech, even if Facebook can censor my speech with impunity. I can have a right to free speech, even if the only speech I ever do is on Facebook. I'm not sure why you don't just own up to your sloppiness earlier. Negative rights are still rights, even if it only immunizes the right-claim to certain agents. Unless you are committed to the thesis that we had no constitutional rights before the 14th Amendment. Which I think is clearly wrong.
And so your argument here is not responsive to my position. I can believe that (A) the Federal Constitution, pre-14th, did not restrict the states and (B) the 2nd Amendment guarantees a private ownership right. The right is simply a negative one: the federal government cannot interfere with the right of individuals to privately own firearms. The states are another matter altogether. They could, pre-14th, regulate such private ownership.
You restate your core argument vividly with the following example.
This example does well to highlight the difference in our position. Your argument is valid. But it is not sound. I simply do not agree with your premise that (A) green marbles= federal government cannot restrict private ownership and (B) blue marbles= state government cannot restrict private ownership. I think it's pretty obvious why. Both A and B share the "cannot restrict private ownership."
Let's say that you agree with the following premise: the 2nd Amendment is a negative right that selectively immunizes a claim-right. If you do, then you cannot argue that the scope of that selectively somehow means that the marbles are "blue" and "green." The right is distinct from its scope. The 14th Amendment simply broadens that scope.
If you do not agree with my characterization of the right, I would point you to my earlier argument. All (most?) Constitutional rights are negative rights. All Constitutional rights do not apply to private actors. Therefore, all Constitutional rights are negative rights with selective applicability.
This is quite a bold claim. We have limited our discussion to the 2nd Amendment. But your argument is broader than that. In your view, any incorporated Constitutional right precludes originalism. Anyincorporated Constitutional right is "pure sophistry."
Lets say that originalism properly finds incorporation in the 14th Amendment. You are arguing that, just because a later amendment alters the scope of an earlier amendment, we must throw away originalism altogether. This makes little sense. The whole point of originalism is to preserve the historical meaning of words. For example, "militia" back then meant something different from what "militia" meant today. We should go with what it meant back then. It is meant to preserve the historical meaning of an amendment so long as, and up until it does not contradict future amendments.
Again, the 26th Amendment lowered the voting age. An originalist does not have to take that to mean that the original meaning of any Constitutional provision regarding voting is lost. We can democratically change parts of our Constitution through an Amendment process. But what we do not change, we leave alone.
You cite US v. Miller. But I hope you will understand why I am confused. US. v. Miller relies on entirely flawed legal reasoning. Which I am sure you would agree was flawed, given your admissions during our debate. The justices categorically do not rely, and do not even consider, your incorporation argument (I may be wrong- if I am, please point me to where they do). They instead rely on an extremely flawed understanding of the prefatory clause. First, by refusing to admit that it is, in fact, a prefatory clause. Secondly, by fundamentally *******izing the meaning of the word "militia" and "well-regulated." It is clear that well-regulated means effective, and you have already agreed with me on the militia point. The Court was obviously wrong here.
While Miller went against the policy of the 2nd Amendment, I hope you will take my criticisms to be independent of those policy considerations. After all, a strong argument for policy can be made within the Miller framework. Short-baralled shotguns have a rich history in warfare. But I do not think that relevant, because I believe that the Miller framework is fundamentally flawed.
You cite Chief Justice Burger and Justice Stevens. But your citation of these well-learned, and respected justices only belie the weakness of your argument. Neither endorse your incorporation argument. Both instead ground their argument on premises that you have rejected.
The Burger Court had nothing to say on the 2nd Amendment. Perhaps I have missed some dicta. But I see no precedent set by the Burger Court on the 2nd Amendment. Maybe you can point me to a case.
Chief Justice Burger, if you look at his famous comments post-retirement, is quite clear about his objection. His reasoning is deeply flawed. I'm sure this is the comment that you had in mind when you cited Burger. "The real purpose of the Second Amendment was to ensure that state armies -the militia- would be maintained for the defense of the state." A militia is not a state-controlled entity, and it is emphatically not a state army. His argument is deeply unsound, and from what I gather from you refusing to defend what you call the "militia' argument, you would agree.
Justice Stevens famously called for the repeal of the 2nd Amendment. That's fine, and is entirely consistent with originalism. He can try- and if he succeeds, I will respect the original intent of that new amendment. What I won't do is this: argue 70 years down the road (if I'm alive) that the Stevens amendment does not actually rescind the 2nd Amendment, because the meaning of some word he used has changed in those 70 years. But his arguing for an amendment provides no credence to your novel incorporation argument.
In 2014, Justice Stevens argued that the 2nd Amendment should be edited to add the following five words: "when serving in the Militia."
Two things. First, Justice Stevens explicitly endorses the idea here that a later Amendment can "edit" a prior amendment. Second, Justice Stevens relies on a differing conception of the meaning of the word "militia," one that is altogether inconsistent with the historical meaning.
Miller, Burger, and Stevens all ground their argument on a flawed understanding of "militia." Indeed, that is their core argument. You refuse to defend this claim, yet cite them for support in an appeal to authority. This is intellectually dishonest.
At the end of the day, our argument comes down to this. I believe that the 2nd Amendment right is separable from its scope. You do not. But I have yet to hear an argument for why a 4th Amendment right against unreasonable search and seizure is any different from a right to gun ownership in that respect. Perhaps you think both cases are inseparable from its scope. That, in my view, is deeply wrong. I have a right to X from Y. Saying I have a right to X from Y+Z does not change the meaning of X.