Quo Vadis GOP?

[Jacob]

Maybe I have excessive faith in people, or I have insufficient faith in the ability of people to stay rational...

Personally - especially in the context of discussions on languish - I value mutal respect and willingness to look at issues from different points of view much higher than rationality. I'm much more interested in answering questions like "what are the premises and line of reasoning that could make a reasonable person reach this conclusion" and "where do we have points of agreement, and what is the core of our disagreement" than determining what is "objectively correct." And for issues I don't know a whole lot about, I'm more interested in "here's a good framework for analysis" and "here's one of potentially several reasonable points of view on the topic."

...but it doesn't make your catastrophic failure of reading comprehension a deliberate act.

I like that turn of phrase

We do have a non-trivial amount of catastrophic failure of reading comprehension, but also - as I'm sure you'll agree - decent number of failures to state your point clearly.

[Razgovory]

Okay, I admit it.  When Grumbler said "ROE" I deliberately misunderstood it to mean "Fish eggs" and not "Rules of Engagement".  I didn't think you all would get so upset over it.  Sorry.

[DGuller]

Maybe I have excessive faith in people, or I have insufficient faith in the ability of people to stay rational...

Personally - especially in the context of discussions on languish - I value mutal respect and willingness to look at issues from different points of view much higher than rationality. I'm much more interested in answering questions like "what are the premises and line of reasoning that could make a reasonable person reach this conclusion" and "where do we have points of agreement, and what is the core of our disagreement" than determining what is "objectively correct." And for issues I don't know a whole lot about, I'm more interested in "here's a good framework for analysis" and "here's one of potentially several reasonable points of view on the topic."

...but it doesn't make your catastrophic failure of reading comprehension a deliberate act.

I like that turn of phrase

We do have a non-trivial amount of catastrophic failure of reading comprehension, but also - as I'm sure you'll agree - decent number of failures to state your point clearly.

In this case by rational I meant not getting your judgment clouded to the point that you become unable to comprehend what the other person is trying to communicate (whether you'd agree with the intended point or not).  Proper comprehension of the person you're disagreeing with requires some emotional detachment.

As far as not stating one's point clearly, I actually think that happens deliberately more often than deliberately failing to get the point does.  Sometimes I get the feeling that in a situation where one poster is clearly getting the worst of it but doesn't give up, the poster who's getting the best of it prefers to keep the semi-conscious loser propped up on the ropes, just to land more punches.  They don't try to clear up their point, they instead keep making it in a way that they know the other person will misinterpret.

[The Minsky Moment]

The lawyers of this board might be interested in this bit of trivia:
Draft Overturning Roe v. Wade Quotes Infamous Witch Trial Judge With Long-Discredited Ideas on Rape

Justice Alito's leaked opinion cites Sir Matthew Hale, a 17th-century jurist who conceived the notion that husbands can't be prosecuted for raping their wives, who sentenced women to death as "witches," and whose misogyny stood out even in his time.

[...]

Yes there's been quite a bit of mockery about the witchcraft stuff, but IMO it misses the real point, which is essential inanity of originalism - the doctrine that one interprets a legal text by going back in time to when it was passed and trying to imagine what was going on the brains of the legislators. 

For example, a big question now is how to apply traditional antitrust law (put into statute c. 1890s-1910s) to modern tech companies.  There are a lot of ways to approach and think about that problem.  However, I cannot conceive why one would think it fruitful to ground that process into an inquiry about what Senator John Sherman would have thought about it.  If he had been shown Facebook and Twitter his likely reaction would have been a late 19th century version of WTF???

For a particularly reactionary kind of conservative, however, the attractiveness of that approach is clear enough: many of America's core legal texts and doctrines trace their origins from time periods when franchises were restricted to landholding white men, who held openly racist and misogynistic world views.  Or even better, in the case of the common law, a royalist jurist like Hale who was the loyal servant of a would-be absolutist monarch.

[Sheilbh]

Yeah - I've never understood it from the outside. From here it basically like it's historical fiction. You might as well get Hilary Mantel on the Supreme Court, because at least she'd do it well.

The other point to your reactionary comment is that it is also an incredibly subjective school. Basically you can shape your opinion based the writings etc of people at the time in an attempt to understand how they would have thought about it. That's a very creative process that leaves a huge amount of discretion to a judge. You can't turn around and disagree with them because it's not what the text says, your argument is about what a historical figure might have thought and I don't really know how you can usefully do that (or what it really adds to the process).

[Barrister]

Sure, there's always room for interpretation in interpreting documents, but IMHO originalism has at least the potential for more intellectual rigour than the "living tree" type analysis.

Let me tell you about a little SCC decision - Law Society of BC v Andrews.  It was one of the earliest cases decided under our Charter of Rights (Charter coming into force 1982, Andrews being decided in 1989).  Mr. Andrews wanted to become a lawyer.  He met all the requirements but one - he was not a Canadian citizen.  So he sued to be allowed to become a lawyer, citing the equality provisions in section 15.

Now remember the Charter itself was only 7 years old.  You wouldn't have had to puzzle through dusty tomes to figure out what the drafters of the Charter meant - you could just ask them.  And the problem for Mr. Andrews was that section 15 of the Charter sets out a list of grounds that can not be discriminated against - and citizenship was not on that list.

(the list is "race, national or ethnic origin, colour, religion, sex, age or mental or physical disability").

Didn't stop the SCC though - they decided that citizenship was an "analogous ground" to the ones listed in section 15, and read it into the constitution.  The Charter means what they said it means.

[grumbler]

The argument for "originalism" is that the US Constitution was created as a social contract.  The governed gave up certain powers to the government in exchange for the government's fulfillment of certain essential services.  Does not contract law go almost exclusively by "originalism?"

Now, the ratifiers* of the Constitution didn't foresee all the ways in which the contract could be applied, which was why they deliberately included language designed to make the Constitution flexible enough to meet new needs.  And for moderns to interpret those flexible provisions does not require them to interpret them in the way that the ratifiers would have.  Indeed, the ratifiers did not themselves use "original" interpretations of concept like "the Senate."

It irritates me that the "originalists" veer wildly between pretending to "strictly construct" arguments based on their view of the written record, and ignoring the actual words of the Constitution when they are inconvenient (e.g. the first thirteen words of the Second Amendment).


*I prefer to think of the "Founders" as the people who ratified the Constitution, because they were the ones "signing the contract," while Franklin et al were just the lawyers drawing it up

[Sheilbh]

The argument for "originalism" is that the US Constitution was created as a social contract.  The governed gave up certain powers to the government in exchange for the government's fulfillment of certain essential services.  Does not contract law go almost exclusively by "originalism?"

I'd massively caveat what I'm about to say as much as you can because there are lots of exceptions like consumers or small businesses or employees.

But at least here, generally speaking, no. Contract law is broadly about applying what the parties agreed, not what they necessarily intended to agree.

So in a general sense you start with the ordinary meaning of the clause - in the context of the contract as a whole. You might look at the original purpose of the clause and what all the parties knew at the time and commercial common sense. But in general you only reach for them if the meaning of the actual clause is not clear.

Generally - at least here - courts aren't interested or can't look at prior negotiations, or "declarations of subjective intent". There are rare circumstances when you can - for example if there's an unusual phrase that isn't defined and doesn't make sense from reading the contract then the court can "explore the factual hinterland of the agreement", but again the intent is to identify what the parties' objectively agreed - not what they subjectively intended.

The approach is broadly similar in interepreting statute here - it's based on having professional parliamentary counsel who draft laws. You start with the words of the statute and only if it's unclear do you start to look at other stuff like "intent" but then courts here would still position it as an objective - what is the intent of those words - rather than a subjective - what did the minister or other legislators intend (courts have only been allowed to look at the parliamentary record since the early 90s - and it's only in certain circumstances).

It's totally different with European law where the intent is really important - you don't necessarily look at what legislators said, but it's why European law will always have far more recitals explaining what the legislation is intended to do. I don't think laws in the UK ever have recitals, but I could be wrong.

[The Minsky Moment]

Sure, there's always room for interpretation in interpreting documents, but IMHO originalism has at least the potential for more intellectual rigour than the "living tree" type analysis.

Originalism as a doctrinal interpretive theory has a political origin, not an academic one.  It was promoted by then Attorney General Edwin Meese as part of a political/rhetorical program.  The doctrine has always had an uneasy place in the academy because: (1) you don't have to be Hans Georg Gadamer to spot the inherent problems in establishing a clear and singular "public meaning" to an historical text, and (2) if taken seriously it leads to troubling consequences such as an inability to provide support for opinions like Brown v Bd of Ed.  For those reasons, even the purported champion of the doctrine in the Supreme Court, Justice Scalia, described himself as faint-hearted in his commitment, and openly made pragmatic deviations.

[Berkut]

Isn't the steelman of the originalist argument that they are not saying we should ban inter-race marriage because the founders that we should, but rather that the means of allowing it now that we all rightly realize banning it is wrong, is through amendment/legislation, not through the courts.

[The Minsky Moment]

The argument for "originalism" is that the US Constitution was created as a social contract.  The governed gave up certain powers to the government in exchange for the government's fulfillment of certain essential services.  Does not contract law go almost exclusively by "originalism?"

That raises interesting questions.  Is the notion of social contract just a metaphor or does it have real substance.  If real substance, who are the parties to the contract?  Clearly more than the framers.  "We the people" means ALL the people, and that includes those who had no direct voice in its creation.  It includes women whose voices were excluded from the debate chamber, and it should include slaves as the Constitution did not explicitly exclude them from its preambulatory declarations.  How does one divine the universal public meaning from all these disparate and in many cases suppressed voices?  A true theory of social contractual orginalism must account for this or concede it is just seeking to replicate old and discarded hierarchies of oppression.

Now, the ratifiers* of the Constitution didn't foresee all the ways in which the contract could be applied, which was why they deliberately included language designed to make the Constitution flexible enough to meet new needs.  And for moderns to interpret those flexible provisions does not require them to interpret them in the way that the ratifiers would have.  Indeed, the ratifiers did not themselves use "original" interpretations of concept like "the Senate."

Just so - the Constitution and the Bill of Rights is not written like a commercial contract.  It does not attempt to specify contingencies; it mostly speaks in terms of general principles and concepts. The meaning and application of general principles necessarily depends on context.

[grumbler]

That raises interesting questions.  Is the notion of social contract just a metaphor or does it have real substance.  If real substance, who are the parties to the contract?  Clearly more than the framers.  "We the people" means ALL the people, and that includes those who had no direct voice in its creation.  It includes women whose voices were excluded from the debate chamber, and it should include slaves as the Constitution did not explicitly exclude them from its preambulatory declarations.  How does one divine the universal public meaning from all these disparate and in many cases suppressed voices?  A true theory of social contractual orginalism must account for this or concede it is just seeking to replicate old and discarded hierarchies of oppression.

Yes, and this is my point.  The "originalists" who made up what they supposed to be "We the People" were not "the people" at all, which makes the supposed "contract" nature of the Constitution suspect, and thus the "originalist" construct suspect.  That does not deny, though, the contractional nature of the Constitution (not any social contract).

Just so - the Constitution and the Bill of Rights is not written like a commercial contract.  It does not attempt to specify contingencies; it mostly speaks in terms of general principles and concepts. The meaning and application of general principles necessarily depends on context.

My point exactly.  I understand the views of the "originalists" but don't have to accept them as true.

[The Minsky Moment]

Isn't the steelman of the originalist argument that they are not saying we should ban inter-race marriage because the founders that we should, but rather that the means of allowing it now that we all rightly realize banning it is wrong, is through amendment/legislation, not through the courts.

The originalists are defining boundary lines between which are the rights of people protected by the Constitution and which or not.   That boundary is NOT based on explicit textualism.  For example, the Alito draft does not as a definitive matter state that only those rights that are explicitly spelled out are recognized.  On the contested question of whether there exist reserved or implicit fundamental rights, he concedes that such rights may exist but that they are limited to those generally recognized as such at the time when the relevant constitutional provisions were enacted (in most cases 1789).

Why does Alito do this? Because, to take one example, the Constitution says nothing explicitly about parental rights to select their children's schooling.  Thus, a strict explicit textualist would have to admit that states could pass laws forcing universal attendance at secular public schools, with no exception for private or home schooling.  And indeed there are historical examples of such laws.  Alito does not like that idea, the originalist don't like it, and their political backers definitely don't like it.  Fortunately for them there a couple of Supreme Court cases that held that parents have a constitutional right to make choices about education. But those cases are not based on explicitly enumerated rights in the text; they are based on a theory of reserved fundamental rights through the 5th and 14th amendments.

So the first originalist move is to abandon strict textualism.  The second is to attempt to control the recognition of fundamental rights by restricting them to those that the originalists subjectively like - such as educational rights or perhaps the right to travel - while rejecting ones that they don't like, such as privacy, and the right to be free from the state doing bedroom inspections to make sure everyone is doing nothing in there except missionary position. To do that they advance the theory that the way to determine what the non-explicit fundamental rights are is to figure what people thought they were in 1789.

What does that mean in practice?  In practice it means that instead of good legal analysis, we get crappy history. We get crappy history in part because federal court judges, while mostly decently smart people, are not professional historians and don't have the time to do years of archival research to decide each individual case.  And we get crappy history because history just doesn't work that way: it doesn't give definitive and pat answers to these kinds of complex questions.

In practice, originalist interpretation usually just boils down to throwing around quotations from the Federalist Papers, mostly because that's an easy accessible source that law clerks are familiar with and because Madison and Hamilton have street cred. But really all the Federalist Papers tell us are the rhetorical arguments that 3 individuals made as part of a political debate; it doesn't establish a universal public meaning for the Constitution as a whole.  Nothing can do the latter.

And that's the best case, you can do a lot worse than Madison and Hamilton.  Like Alito's draft, which would determine the nature of fundamental rights to be recognized in 21st century America based on the idiosyncratic views of Charles II's chief judicial flunky.  Or the Heller opinion, which meanders its way to a pragmatic result that deviates substantially from the Constitutional text by way of a slanted and tendentious excursion through selected historical studies of gun usage in American history.

[Sheilbh]

Isn't the steelman of the originalist argument that they are not saying we should ban inter-race marriage because the founders that we should, but rather that the means of allowing it now that we all rightly realize banning it is wrong, is through amendment/legislation, not through the courts.

But isn't that more of a philosophical idea or a political preference for judicial restraint - which I'm not unsympathetic to.

The bit I struggle with - and my bias is that I come from a textualist approach - is that argument doesn't explain why the correct approach to interpreting law is what the legislators intended and what they thought it covered at that time. But it also doesn't lead to that "steelman" result.

Minsky's example on anti-trust is right. The social issues are where this will do the most damage and get the most attention but I've no doubt they'll use this approach to gut regulatory law with that tool. I think Kavanaugh has form for this already - but just imagine the impact on, say, the EPA if its role was solely interpreted through how it was understood in 1970.

This isn't a philosophy of judicial restraint and deference to legislation. Instead it elevates the court and reduces the legislature's role to contantly updating, revising and amending legislation to ensure it remains current enough for the court to give effect to that legislation. Obviously in a system like the US' with strong powers for parties to block legislation that means a lot may become frozen in aspic or ultimately redundant - especially when it comes to the administrative/regulatory state.

[Razgovory]

The originalists stance isn't completely without merit, we do have people we can ask who were there.  One of them is a cat and both of them are ghosts.