Horizon

It makes some sense to end the filibuster for legislation, but the nature of a judicial position validates its desirability. These are lifetime appointments, are they not? These are positions that, by design, are not accountable to the electorate. The fact that a mere majority cannot allow the nomination process to proceed forces the executive branch to put forward compromise candidates.

What surprises me is that the Republicans don't have the foresight to see that they may not control the Senate forever.

To be quite honest, I'm fond of supermajorities. Partly this is because of recent reading about conclaves and compromises, but mostly it's that supermajorities resonate with the political culture here in Texas.

David Hackett Fischer writes that Texas has the weakest government in the country. Every two years our state legislature meets, and every two years editorials run in newspapers around the state exhorting them to not do anything. We are constitutionally fond of structural impediments to legislation. The supermajority seems like an excellent one.

All of which makes it odder that Democrats, who are presumably in favor of the government doing things, are making what purports to be a principled defence of one of the single biggest obstacles to Congress getting anything done. Not that I think the Republicans are being any more wise or consistent. I think the problem is that the GOP is googly-eyed over something that will give it an immediate advantage (but put it at a long-term disadvantage), and the Dems are horror-stricken for the opposite reason.

Short answer: We shouldn't let a federal judge take office for life who 41 Senators think is an idiot.

Long answer: Democrats are, among other things, in favor of the time-tested democratic processes. Democracy is necessarily inefficient. Efficiency is a concomitant of single-party rule. Congress is not a mechanism for expressing the wishes of the ruling party, or even for expressing the wishes of 51% of its members. It is a more complex and more democratic institution than that, and part of what makes it so is the fact that its parliamentary rules require supermajorities in certain cases.

Alan has, btw, seen my report of participating in a demonstration yesterday on behalf of the filibuster. It was a rather nice demonstration, orderly but enthusiastic, and consisting in large part of craggily professional persons over the age of 40.

Alan has, btw, seen my report of participating in a demonstration yesterday on behalf of the filibuster

Martha, it's not always about you, you know ...

I accept all your civics-class staples, but I would seriously question whether the inertial morass in which the US government so often finds itself has served the people particularly well, especially at moments of crisis. The problem with checks and balances is that it's diffict to get anywhere when you're checking and balancing. It seems to this outsider that what has happened in the last 50 years is that a gridlocked Congress has effectively abandoned part of its legislative responsibility, forcing the courts to pick up the slack with a series of increasingly dubious elaborations on constitutional phraseology (the 'interstate commerce' clause being the most notorious I suppose). When folks bash 'activist judges' I think they're entirely missing the point; the problem is that judges have been forced to make law on key political questions since WWII because Congress isn't up to the job. And the filibuster is part of that.

BTW, libs in the audience may want to ponder whether time-tested democratic processes prevented the United States from becoming a full-fledged social democracy in 1944, while the absence of those same processes allowed Britain to become one in 1945.

We can possibly agree that there has been a breakdown in Congressional courtesy, though I would place the date of the breakdown much more recently than "since WWII." I do find that alarming. There has not IIRC been a horsewhipping on the Senate floor since the vexed 1850s, but news reports over the last five years suggest a level of blindsiding, jostling, and cold-shouldering that would not have been conceivable as recently as the 1980s.

I don't see where you get the notion that Congress stopped legislating after the war. If anything Congress stepped into a multiplicity of new areas, among which civil rights and environmental regulation are perhaps the most frequently noted.

I'm sure that politicians are much less publicly courteous than they used to be, though since I never raised that point I'm not really sure why you did.

I didn't say (or at least intend to say) that Congress has stopped legislating, I said (or intended to say) that Congress has passed the buck on too many hot-button issues, such as abortion, which I think desperately needs to become a political rather than a judicial issue again - and I speak as someone broadly in favor of the right-to-choose. Congress has also apparently given up a number of its rights, for example to decide on the use of American armed force - a tendency just as noticeable (though less dramatic) in the previous administration as in this one. It's not clear to me that these are healthy developments, and I don't believe that its tendency towards gridlock is unrelated to them.

someone broadly in favor of the right-to-choose.

Remember Al, if you said to the liberals in the audience that abortion was the death penalty, they'd be against it like a shot. You as well, like as not.

You've definitely got a point on the authority of Congress to declare war, which is frevvinsake spelled out in the Constitution. But that's a separate case from the social-morality issues.

Of course, yes, a lot of social-morality issues such as abortion, marriage, the death penalty, when to withdraw life support, etc. have become *most publicly debated* in the context of court cases. But in truth Congress hasn't stopped acting on any of these. On the contrary, Congress and the state legislatures have acted vigorously in ways that have forced the courts to take moderating, restraining positions that are less popular with the religious right, and *this* is why right-wing publicists have spent so much time disparaging the courts. For example, Congress and state legislatures have found many ways to make it more difficult and expensive for actual individual women to have abortions, while the courts have continued to uphold the formal possibility of abortion. Congress and the legislatures have enacted increasingly severe penalties for crime, and courts have in some cases moderated those penalties on constitutional grounds. Some members of Congress, and several whole state legislatures, have worked to define marriage more narrowly, while a few widely publicized and ferociously debated court decisions have upheld gay marriage. And of course in the notorious Schiavo case, the President and the Republican majority in Congress claimed the role of rescuers for themselves while their supporters demonized the judges who allowed Schiavo to die.

You can like the courts' decisions or not on these subjects, but I don't think you can say Congress has stopped acting on any of them.

I said (or intended to say) that Congress has passed the buck on too many hot-button issues

Unfortunately, this does match the Texas case. Though down here, the greater ineffectiveness of the Lege has pushed more routine issues like school finaince into direct control by the courts. That's the downside of these structural impediments: governance will happen somewhere, like it or not.

It's hard to tell how much of the decreased role of legislature is an abdication by legislatures themselves or an arrogation of powers by the judicial or executive branch. In Texas, at least, the former seems to be true. Nationally (especially regarding the executive) I suspect it's a combination.

Justice Scalia (cue eye-rolling) had some interesting things to say about this in a meaty talk he gave last month:

Today, barely twenty years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience, a new constitution, with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority

[snip]

I think the very terminology suggests where we have arrived: at the point of selecting people to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts, you know, “Judge so and so, do you think there is a right to this in the Constitution? You don’t?! Well my constituents’ think there ought to be, and I’m not going to appoint to the court someone who is not going to find that.” When we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. The senators are representing the majority. And they will be selecting justices who will devise a constitution that the majority wants.

And that of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take that are favored by the majority is a recipe for destruction of what we have had for two-hundred years.

Of course I'd argue that the increased importance of the courts today means that we should be forced to compromise on the justices we get. And I don't think that would be inconsistent with taking action to reduce the importance of the courts or remove legislative roadblocks (like supermajorities) in other venues.

On the contrary, Congress and the state legislatures have acted vigorously in ways that have forced the courts to take moderating, restraining positions that are less popular with the religious right

By which you mean "overrule the will of the majority of the people as expressed though their elected representatives". Really, Martha, you're not arguing in favor of "democracy", no matter how much you'd like to assume that mantle. You're arguing for a system of checks and balances that sometimes thrwarts the will of the majority.

I agree with you on the need to maintain that system. I might have even shown up at your demonstration yesterday. But what you and I are pressing for is not in any sense "more democratic" than simple 51% rule, and I think you open yourself up to charges of inconsistency or hypocracy by trying to define it as such.

Yes, Congress can act [on social-morality issues], but in a twittering-round-the-edges way that allows legislators to score points with their base without seriously arousing the furore of the masses. I agree with what Benjamin Wittes said in a recent Atlantic Monthly: the best thing possible for the pro-choice case would be for Roe to lapse and for the abortion issue to be kicked back to the states. This would require pro-life politicians to put up or shut up: at the moment they can tinker with abortion rights without much fear of electoral blowback because everyone knows full well that the ultimate decision is out of their hands. But if it was placed back in their hands they would have to make the alarming choice of which side to alienate: the relatively small number of party faithful or the majority of ordinary voters who consistently support abortion's legality. I suspect that most of them would mutter a lot but ultimately cave in. Yes, some states might make abortion illegal, but others - a plurality I think - would not; and with concrete legislative backing rather than a single dubious 1973 bit of case-law I think abortion would on the whole be more safely entrenched than it ever has been (it would also return a bit of much-needed sanity to the whole Supreme Court appointment process). It seems to me that the recent chain of state-level reassessments of the death penalty is a comparable, albeit not exact, phenomenon.

Admittedly this is starting to take us away from the Senate filibuster.

All very nice for Mr. Scalia to say, considering that he's clairvoyant enough to know what the Founding Fathers would have said about an IV drug user caught with methamphetamine in an automobile stopped by the Highway Patrol in the State of Wyoming although none of the things in this linked text here had even been invented at the time of the drafting of the Fourth Amendment. A man with such a gift of second sight doesn't need to think about what the law ought to be. He just *knows*. It's one of these cases where a gift can almost be a handicap, like my second cousin once removed who couldn't teach other people to transcribe music because she had perfect pitch herself and hence never had to think about how less gifted people develop relative pitch.

Ben: yes, "democracy" has a lot of meanings, and one of them is "the simple rule of 51%." But under that definition a vote among elected representatives is already a less pure form of democracy than a referendum of registered voters, and a referendum of those registered voters who trouble to cast their ballots is in turn a less pure form than a referendum of the entire population, should such a thing be even possible. So we're all hypocrites, and so there. But I'll say "a republican form of government" to refer to the checks and balances if it would make you happer. Labels aside, I suspect we do agree on a good bit of the substance here.

All very nice for Mr. Scalia to say, considering that he's clairvoyant enough to know what the Founding Fathers would have said about an IV drug user caught with methamphetamine in an automobile stopped by the Highway Patrol in the State of Wyoming although none of the things in this linked text here had even been invented at the time of the drafting of the Fourth Amendment.

Surely (at least from what I understand from the summary) this case rests upon whether or not the belongings of someone traveling with a suspect can be searched along with those of the suspect himself; what's time-specific about that? This could have happened in 1800 Connecticut or it could happen on Mars in 2300 so far as the legal principles are concerned. Or am I missing some nuance here?

Under that definition a vote among elected representatives is already a less pure form of democracy than a referendum of registered voters

Of course it is; and what's wrong with that? One can surely have a healthy taste for democracy without insisting that its purest expression must be the sine qua non of every act of good government.

But I think as far as the filibuster is concerned I am being the more extreme democrat (whether I like it or not).

A man with such a gift of second sight doesn't need to think about what the law ought to be. He just *knows*.

I'll be the first to admit that I have not kept up on some of these issues as much as probably everyone else reading this thread, but I do think this gets to the heart of this "originalist" (isn't that the word?) problem. In the end it is little more than an attempt to legitimate one's own opinions by attributing them to the authors of the constitution. As such I think this whole idea is rather dishonest.

I also think it's strange that Scalia sees himself as the protector of minorities. How does this square with his record?

But I think as far as the filibuster is concerned I am being the more extreme democrat (whether I like it or not).

I agree. Alan's the populist, Martha and I are the elitists.

Tune in to Horizon next week for Superman's daring escape from Bizarroland!

Alan -- the biggest part of the nuance is common to all modern-day vehicle search law and stems from the Carroll case. That's where the 1925 Supremes revised federal search and seizure law to address bootleggers who could make quick getaways in their newfangled automobiles. The Carroll automobile, stopped outside Detroit, proved to contain sixty-nine quarts of (presumably Canadian) bootleg whiskey.

Hm. Another thing. I'm not sure I agree that congressional abdication of responsibility (to the extent that it has taken place) can really be attributed to any large degree to governmental inefficiency. If anything, it is such inefficiency which gives craven politicians something to hide behind while they make gestures designed to please a constituency without changing anything and thereby angering some other group of people.

I'm not sure that "elitist" is the word for a distrust of the current Congressional majority. One could as easily make an argument that the current Congressional majority is a beneficiary of manipulative election laws and media monopolies that prevent the true will of the people from being expressed in that particular branch of government.

But, yes, the whole point of appointing federal judges for life is to insulate them from continuing political pressures, and that is, yes, both a worthy goal and a goal not consistent with radically pure democracy.

So whaddaya whaddaya?

When we say that Congress has abandoned it's legislative responsibility, what are we basing that on? In the last fifty years has there been less legislation, less deliberation, less investigation?

One could as easily make an argument that the current Congressional majority is a beneficiary of manipulative election laws and media monopolies that prevent the true will of the people from being expressed in that particular branch of government.

Well, you could ... but when you start arguing that the people are locked into false consciousness by an overweening Gramscian hegemony and that their ostensible expressions of will are just a matter of elitist legedermain, it all starts getting a bit too icky for me.

In the end it is little more than an attempt to legitimate one's own opinions by attributing them to the authors of the constitution

I disagree almost entirely. I'm no legal scholar, but have paid a bit of attention to this where it comes to the first and second amendments. I don't think originalists try to reconstruct what was in the framers' minds absent any other data, but rather see themselves as heirs to a body of case law and precedent that constrains them authoritatively. They are (or should be) heirs to a living tradition of interpretation, in which the law is continually clarified by being challenged by new questions and circumstances, but absent new statutes, amendments, or facts they can never contradict prior interpretation.

The law does slowly evolve under this model, but prior judgements can only be truly overturned by constitutional amendment (see amendments 13,14,15 & 19) or by statute (Civil Rights Act of 1964), but never by judicial action.

There are some serious weaknesses to this model — when new cases arise that do not have obvious historical analogies (and most second amendment arguments sadly fall into this camp), the model is silent. And if not properly defended, it can be used as a cover by those who would like to ignore recent developments of that tradition in order to turn back the clock through non-legislative means.

It's entirely possible that I'm attaching the "originalist" label to something altogether different. I do feel quite strongly about this, not least because of its analogy with the development of Christian doctrine as theorized by John Henry Newman (and especially as summed up by Jaroslav Pelikan in his first lecture in The Vindication of Tradition). But the attacks I've read on "originalism" (i.e. Jack Rakove's article defending of Michael Bellesiles in the William & Mary Quarterly) have read to me like attacks on the very notion of judges being bound by precedent.

How does this square with his record?

This is where much of the eye-rolling comes in. I love what Scalia says, but I tend to dislike many of his rulings — not least because they seem to be inconsistent with what he says, and in suspiciously convenient ways.

There's a sense in which "originalism" can call for ignoring more recent judge-made interpretations of legal texts in favor of a quasi-fundamentalist return to guessing the Founders' subjective intentions. this site might help.

Is that different from using it "as a cover by those who would like to ignore recent developments of that tradition in order to turn back the clock through non-legislative means"?

I do feel quite strongly about this, not least because of its analogy with the development of Christian doctrine as theorized by John Henry Newman (and especially as summed up by Jaroslav Pelikan in his first lecture in The Vindication of Tradition).

This sounds interesting. Can you offer any links, etc.?

not least because they seem to be inconsistent with what he says, and in suspiciously convenient ways.

Well, that was sorta what I was talking about. And yet to the extent that Scalia can claim that mantle, he puts a large rhetorical roadblock in the way of his critics. That looks a bit dishonest to me.

No, I think we agree about originalism being used as a cover for trying to turn the clock back. But you also said some attacks on originalism sounded to you like "attacks on the very notion of judges being bound by precedent," and that's what seems a little off.

Maybe it helps to point out that the emblematic desegregation decision, Brown v. the Board of Education, is an important and respected court precedent, but a radical "originalist" might claim that the 19th-century members of Congress who enacted Amendments XIII-XV did not specifically intend for Brown to be decided as it was. So that originalist would assuredly be using the ostensible goal of historical accuracy as a cover for turning the clock back (and, yes, the claim might not even be historically accurate: Reconstruction sentiment was surprisingly egalitarian for a few years there), but by calling on the Court to reverse Brown, our originalist would also be opposing the great stare decisis principle of respect for the Court's own previous decisions.

Thanks for the link -- there's some really good stuff there. One note:

4. Non-originalism allows judges to head off the crises that could result from the inflexible interpretation of a provision in the Constitution that no longer serves its original purpose. (The amendment process is too difficult and cannot be relied upon to save us.)

This seems self-evident as a bug of non-originalism, not a feature.

Based on the page, it looks like I'm conflating both originalism and a reverence for stare decisis under the label "originalism". Maybe I'll pipe down for a while.

But you also said some attacks on originalism sounded to you like "attacks on the very notion of judges being bound by precedent," and that's what seems a little off.

Well, you should read Rakove's article. As I remember, it quotes Jefferson about "a little revolution now and then" to argue that we can make the constitution mean whatever we want it to mean via judicial fiat, rather than through the amendment process. It didn't help that he was defending Bellesiles via the rather dubious argument that "it doesn't matter whether his history's right, since we can do whatever we want with the constitution." Not a way to win points with me.

BTW thx for the above as it reminded me of the 100th anniversary of Lochner. I've just put up something on my own blog about this godawful 1905 Supreme Court decision, which condemned an unknown number of people to early deaths from occupational illnesses, food adulterations, and other Upton Sinclair atrocities. Out of curiosity, did anyone see any Lochner commentaries in the punditocracy press on or about the April 17 anniversary date? It seems from here to have passed by without much of a whimper, which, if true, would be a pity.

It didn't help that he was defending Bellesiles via the rather dubious argument that "it doesn't matter whether his history's right, since we can do whatever we want with the constitution." Not a way to win points with me.

Still haven't found or read the article, but maybe it helps to note how there's a possible third position that, stated generically, goes like this: "It doesn't matter what the Framers subjectively thought, since their words have been interpreted by a venerable body of judge-made law that is itself worthy of respect."

Of course, nobody's going to stick to that position either -- not in all cases. It is assuredly, for example, a good thing that Brown overturned the "separate but equal" case of Plessy v. Ferguson.

So, well, applying the law to the facts is always a highly specific process, and what's important is to maintain a productive, dignified tension between older precedents and newer understandings of justice. No, it's never easy. If it were an easy process it wouldn't be trustworthy.

Can you offer any links, etc.?

Well, that first lecture in Vindication of Tradition is really excellent, but unfortunately the whole book isn't worth fifteen bucks unless you're an obsessive Pelikan fan.

Apparently he came out with a book developing this idea last year: Interpreting the Bible and the Constitution. The middle paragraphs of this review do an okay job of summarizing his argument.

The whole thing is really an extended analogy between the two interpretational processes. The Constitution/statutes ~= divine revelation, the Supreme Court ~= the Magisterium, radical originalism ~= fundamentalism, stare decisis ~= orthodox/catholic/talmudic interpretation, radical "living constitution" ~= Modernism, constitutional decision ~= promulgated dogma, etc. I'm really not doing it justice at all here -- maybe that book review would do better.

Turns out that if you go to the article on the W&M site and hit "Printable Version", you can see Rakove's analysis. (That's probably a violation of the DMCA's anti-circumvention clause)

The bit I remembered was the last paragraph, which seems much less radical to me now:

But originalism rests on the theory that later generations remain legally beholden to the collective decisions of a prior generation: their understandings trump our preferences. That theory is problematic enough on democratic grounds, for reasons Thomas Jefferson well identified (even if he did not resolve) when he reflected on the right of one generation to bind another. It becomes all the more troubling when subjected to two further tests. One involves the set of methodological problems in recovering original intent that I have explored in other writings. That approach, applied to the specific problem of ascertaining the best rendition of the original meaning of the Second Amendment, produces conclusions consistent with Michael Bellesiles's description of both the use of firearms and the saga of the militia. But the behaviorist approach adopted by Bellesiles poses a second challenge, distinct though not unrelated. If the ideology of an armed citizenry and the bulwark of the militia were more honored in the breach than in the observance during the era surrounding the adoption of the Second Amendment, what obligation to defer to the presumed aspirations of that generation should those of us walking the earth in these latter days still feel?

Does not the preamble to the Constitution have any bearing?

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

And also John Marshall's comments in STURGES v. CROWNINSHIELD?

...although the spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerons in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words, is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, [17 U.S. 122, 203] is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.

It might further help to know that what Bobby has just cited is applied more or less as a basic rule of construction for all judicial interpretations.

We have an ancillary rule in California, one I like, saying that in case of ambiguity a statute should always be read without assuming any of its words to be superfluous.