I think the view of the people you mentioned had more to do with their understanding of the overall structure of the Constitution as a grant of limited power (as formalized in the Ninth and Tenth Amendments, but already implicit without them), than with a positive open-ended authority for courts to create rights. It’s actually compatible with a pretty strict reading of the Constitution. The Constitution is a grant of limited, defined powers, with all others reserved. From that standpoint, it would be reasonable to fear a Bill of Rights on the ground that it would imply the opposite: that rights had to be explicitly granted.

One contemporary argument I saw for the Bill of Rights was that, even with this understanding of reserved powers and retained rights, it was possible that even delegated powers might be used in a way that violated traditional rights. For example: to the extent that the powers of the new government, unlike the Confederation, operated directly on individuals, they presumed some mechanism for enforcement. But the Constitution specified no rules of civil or criminal procedure. The Fourth, Fifth, and Sixth amendments were written to make sure the government was subject to common law due process rules in executing its laws. The First amendment was written to prevent indirect use of (say) the taxing power in a way that penalized the press. And so forth.

Yes, but what he did not envision was the federal Constitution usurping the power of the several states; the Constitution and BoR originally were almost entirely a curb on federal power, including any designs to invade the prerogatives of the states.

Federalizing every contentious issue via jurisprudential over-reach is not what Madison had in mind. Indeed, this was just the sort of argument he had to rebut vis-a-vis the anti-federalists, who seem to have been somewhat vindicated.

Amen.

When law is the result of a bottom up process of applying morality to reality, the law can be intersubjectively ascertainable within the community that subscribes to the morality. When law is the result of top down application over varied and diverse moral systems, the intersubjective ascertainability of the legal language starts to drop precipitously.

At least in theory, the Constitution itself is based on something else. The words that Jefferson used in the Declaration Of Independence were “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

It’s worth noting that both Madison and Alexander Hamilton opposed the Bill Of Rights for fear people would come to think that the only rights that US citizens enjoyed were those that were explicitly detailed. Madison, in particular, foresaw the rise of a kind of Constitutional fundamentalism wherein people insisted that the rights of citizens were limited to what was written - a fundamentalism that would insist that what was written was the sole truth about people’s rights. However, for many of the people who supported the passage of the Bill Of Rights, it was seen as a minimalist document that outlined the barest minimum of rights that could never be violated. The Bill Of Rights was suppose to be the starting point, not the whole truth, of citizen’s rights.

Madison, in particular, took an empirical and utility-based view of rights that matches well with what utility-based liberals of the modern era still push for. That is, if a right produces a result that has social utility (like Roe vs. Wade) then it is probably an “unalienable Right” with which citizens were “endowed by their Creator”. Madison’s thinking is complicated, but I think it would fair to say he felt that there were basically an infinite array of rights still waiting to be discovered, and that a free people would discover them empirically, in the course of events, just as inventions and technology would be empirically discovered by scientists.

In this sense, I think Roe vs Wade is completely in keeping with the views of (some of) the Founders.

The only thing I can see working is essentially what Keith’s doing. Spreading the word about the legitimacy of the concept of secession, especially peaceful secession. As others have noted, there are structural impediments, known as federal grant monies, to any attempts at reforming the current system. Until you can sever the ability of the federal government to lure states and communities in the wrong direction by selective spending of tax revenues generated in those states and communities, no serious reform will occur.

One possible first step (although I doubt even this could pass) is to pass a law requiring federal spending to approximate (within 1%) tax revenues in every congressional district. If spending falls below 99% of revenues, the feds lose their ability to tax in that district. Or you could do it by state. That would severely restrict the ability of the feds to set policy in areas like drinking age, among many, many others.

However, I still think the educational route is the most important. If enough people accept that the concept of secession is legitimate, changes will start to flow from the bottom up.

I was thinking more in terms of the ratifying conventions, which were specifically elected to represent the people in their highest sovereign, or constituent, capacity (the term “convention” was a deliberate allusion to the two Convention Parliaments that restored Charles II and recognized William and Mary after the Glorious Revolution). The suffrage was the same as to the state legislatures, I believe, and the conventions voted by simple majority; but the people specifically understood that they were electing a constituent body to express their sovereign will on the Constitution.

Of course, getting back to my earlier discussion with Keith on the Constitution as a Federalist coup, all this legal theory is pure fiction. The suffrage to both legislatures and conventions, in many states, comprised a minority even of white males. So the economic classes that had an interest in the Constitution were way, way overrepresented.

I largely agree with you. However, in a contrary fashion, I think it might be best if it was much easier to amend the Constitution. I say this only because I’d prefer to have the Constitution as enforced by the courts stay in alignment with the Constitution as it is written, and I assume the presssure for constitutional change is ever present and, perhaps, often healthy.

Given a constant pressure, a system will burst at the weakest point. Right now, the easiest way to change the Constitution is to pack the courts. Were it easier for the states to amend the Constitution, then there would be less activism directed toward getting the courts to amend the Constitution.

As a matter of historical record, the US would have seen the passage of many more amendments if only 60%, or even 55%, of the states were needed to give their consent to a change. For instance, the Equal Rights Amendments would have passed, and the equality of the genders would be a plain constitutional fact, rather than an outgrowth of the courts enforcing the 1964 Civil Rights Act.

On some level it seems intuitive that a super majority should be needed to amend the Constitution. But the cost of insisting on super-majorities is that sometimes the Constitution will insist on something that the majority of the people are oppossed to. When the Constitution is out of sync with what the majority want, the majority will look for the easiest way to amend the Constitution so as to bring it in line with their will. And for now, the easiest way for the majority to get what they want is through electing a Congress that appoints judges who will interpret the Constitution to say things that the majority want.

If the process of amendment required less of a super-majority, we might see less pressure to pack the courts, and more pressure for the states to pass those amendments that the majority seem to want. (Again, the Equal Rights Amendment would serve as an example.)

One could argue that making it easy for a slight majority to amend the Constitution puts the rights of minorities at risk, but it seems to me that minorities have often had their rights trampled, despite what the Constitution says. An easier process for amendment would at least have the merit of a somewhat more honest Constitution.

Kevin, when you write this, you must be thinking of some super-majority of the people? That is to say, a subset of “The People”? The super-majority you are thinking of is surely a coalition of diverse factions? I’m curious if you think it is really possible, as a practical matter, to set “absolute limits” on a government, when the coalition of factions that have the power to create or amend constitutional arrangements is ever shifting? Personally, just 6 years ago I would have thought that torture was outside of the “absolute limits” of the American government, that torture was a practice so odious that it would never become official policy, and yet now we have the reality of the last 6 years confronting us.

Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal or political content, into which advocates can pour whatever substantive views and values they happen to favor. Perhaps the major problem that results is that advocates are tempted to advance their values and views not on their substantive merits, but rather by promoting the vessel, or the packaging. And like the harm principle itself, that temptation has proven irresistible– not merely to the office party debater or the talk show host, but to sophisticated philosophers as well, notably including the principle’s most articulate proponents: J. S. Mill and Joel Feinberg. All in all, the harm principle serves to confuse and distract, and to permit advocates to gain illicit rhetorical advantage without earning their way. Our public deliberations would accordingly be enhanced if the harm principle were retired from duty.

I haven’t given up hope, and I think Smith is overstating his case. But he’s right that we do need a good way of speaking about “harm” that isn’t vacuous. Contra the quote, Feinberg’s approach (in his “Harm to Others”), viewing harm as “wrongs to entitlements” is illuminating. But it still leaves “harm” pretty indeterminate. In case anyone is interested, Feinberg’s view is presented here (a link I might’ve suggested before) — http://plato.stanford.edu/entries/law-limits/

Yeah, any libertarian who has engaged in even minimal political debate has experienced this. If the liberal or conservative will not accept that we are going to engage in a good faith attempt to criminalize only direct harm, then everything from mandatory helmets to drug laws to criminalizing adult porn follow as acceptable; there is no principled reason why any of these should not be subject to state control.

It can help to speak of “consensual” rather than “victimless” crime, but the argument generally still always ends up with the liberal/conservative invoking the “ripple effect.” And with helmet laws, they will argue that society pays for the uninsured who are hurt more severely when not wearing a helmet — even as they argue the unhelmeted are more likely to die.

This, btw, is why even tho I am convinced health insurance is a serious problem as a result of a historical fluke in which it typically became an employment benefit (among other aggravating issues), I greatly worry about a govt, single-payer plan in which the state then has a stake in what we all eat, drink, drive, risk, ingest, inhale, or fail to do (e.g., exercise).

On jury nullification, while I endorse the idea for a future legal system and rhetorically within the context of the present system, I don’t think it would be an effective weapon against the drug war. Courts have elaborate procedures for screening out uncooperative jurors. For someone to get past all that and then throw a wrench in a prosecution, they would have to be very shrewd and intelligent, fanatically committed to the cause, possess tremendous strength of will and independence of mind, and not quiver in the face of authority and peer pressure. Let’s face it, there’s not many people like that. Also, if it became widespread, prosecutors would simply start bringing perjury and jury tampering charges against the nullifiers.

On decriminalization at the state level, federal bribe money is a powerful incentive for cooperation by states and localities. In fact, it was with federal money for Nixon’s original drug war that many state and local police drastically expanded their narcotics divisions.

As enforcement of the Fourth Amendment, et.al., paramilitary policing and entrapment and the like are too deeply entrenched in law enforcement culture and common legal practice to roll it back at this point, IMO. There are something like 35,000 paramilitary police raids on private homes annually.

When it comes to social conservatives who argue for prohibition on empirical or pragmatic grounds, the great irony is that the empirical evidence demonstrates overwhelmingly that prohibition greatly exacerbates the harms done by drug abuse. To deny it is simply on the level of denying evidence for the heliocentric solar system, IMO. Prohibition is a cultural scapegoating ritual, not something rooted in rational discourse about social policy.

I don’t really think social conservatives are the ones to pitch anti-prohibitionist arguments to anyway. It’s kind of like making anti-racism arguments to Klansmen. Besides, most public arguments justifying prohibition are wrapped in the rhetoric of therapeutism rather than religious moralism, anyway.

Also, I think social conservatives are losing the so-called culture wars hands down on all their favorite issues. Whether it’s gay rights, racism, womens’ rights, abortion, religion in public institutions, the sexual revolution, pornography or whatever, the big picture indicates the “liberal” side has the upper hand for the long term. The obvious exceptions are the drug war specifically and “law and order” generally, but liberal politicians have been accomplices to this as much as any right-wing Republicans.

In fact, I’ve long suspected social conservatives will eventually be tactical allies of radical decentralists like myself. As American society continues to become both more statist and more culturally leftist, they will find themselves more and more under attack by the state. Eventually, they will be content to be left alone in their own churches, private universities, home schools, alternative media, exclusionary private neighborhoods and separatist enclaves and wait for the End Times. I know of many in that milieu who have already adopted such a position.

Statistically, something like 1 in 30 adults are now either in jail or prison or on probation or parole. Much of this is for activities that are entirely victimless, esoteric, archaic or dubious. Such a situation can only breed alienation from established institutions and “disrespect for the law” over the long run. Many of these people are formally disenfrachised politically and many have no real economic prospects. Such is the perfect audience for a genuine radical or revolutionary message. I suspect there will be some serious blowback in the future.

I’ve had more than a few arguments with social conservatives myself, and experienced the same thing. The standard argument is that there’s no such thing as a “victimless” crime, because of all the indirect harm that’s done to “society” that involves some sort of negative externality on everyone else from social problems, etc. It’s basically the same argument liberals use for motorcycle helmet laws. I’ve argued in response that there’s abolutely no objective line that could be drawn given a definition of “harm” that broad. And the funny thing is, they agree: they tend to think the line should be drawn on a pragmatic basis, based on public deliberation, and that NOTHING (including alcohol prohibition) should be off the table.

I think the most practical approaches include:

1) Keith’s suggestion above of jury nullification;
2) state and local movements for drug decriminalization (so-called “interjurisdictional drug task forces” are an incredibly massive force multiplier for the feds, and withdrawing state and local police forces from them entirely would mean the feds have to enforce the law entirely themselves); and
3) aggressive civil libertarian activism on procedural issues (search and seizure, SWAT team abuses, civil forfeiture, etc.). Regarding this latter, if traditional due process guarantees were enforced to the letter, it wouldn’t matter what the substantive drug laws were.

Another interesting proposal I read somewhere (forget exactly where) was an organized movement to refuse plea bargain offers once a large enough people had signed a pledge to do so. If prosecutors were required to actually file charges and go to trial in every single case, they would be utterly paralyzed–especially the deluge of “timely trial” complaints as the backlog stretched to years. It’s a prosecutorial version of the old Wobbly free speech movement, with soapbox speakers swarming a town until the jails were packed, and then continuing to swarm it.

An amendment explicitly protecting the right of all adults to make whatever decisions they wish for their body, that do not directly and proximately cause harm to another by interfering directly with an identifiable right of said other.

This should end the “war on drugs,” as well as deal with abortion to the extent justices decide whether and when the entity in a human uterus becomes vested with a right to life. To the extent such an entity has no vested rights, the mother’s right to make decisions for her body are protected.

Of course, this is dreaming. Such an amendment will never pass out of Congress, much less be ratified by 3/4 of the states.

Besides, as a veteran of many political wars, I’ve observed that the concept of “direct harm” is impossible to pin down (especially for those who won’t agree in good faith that it must permit/prohibit X, if they are strongly antagonistic to that result), and relies on the interpreters’ prejudices and ideological predispositions.

I think a more pertinent question might be how can we rollback or at least render more dull the worst excesses of the law or the state as it presently stands? And how do we do it given that our enemies are going to control the judiciary irrespective of which party appoints them?

Is working through the system like the ACLU does the proper approach? Is civil disobedience? Going to the public directly with things like ballot initiatives? Forming pressure groups to lean on the legislative branch? Something else? You tell me.

What are some practical reforms that we might wish to agitate for in the short run? The mid-term? The long-run? Is the presently system reformable to any of our satisfaction? Is revolution required?

Just some thoughts. I guess I’m trying to bring the conservation back down to earth a bit. While we seem to disagree a bit on abstractions we seem to agree quite a bit on actual issues. So what would an appropriate course of action be?

I’m not sure where else we would get context that is any more valid than legislative intent (and I agree, legislative intent is a pretty bad place to get context from), unless one returns to a moral principle.

Ironically, I gave up on trying to read Continental pomo philosophers like Derrida because I found their prose impenetrable–and suspected it was deliberately so. On the other hand, Stanley Fish’s exposition of the basic theory of anti-foundationalism is one of the most lucid and transparent pieces of writing I’ve ever seen.

Well, first, Scalia doesn’t really believe that - he believes it only when he agrees with its outcome (much like the assertion that he’s a textualist is clearly false - he’s more than willing to accept the status quo over textualism when it suits his purposes).

Second, the *text* has no independent, objective meaning. I’m a fan of Corbin’s admonition:

“A court must be careful not to retire into that lawyers Paradise where all words have a fixed, precisely ascertained meaning; where men may express their purposes, not only with accuracy, but with fullness; and where, if the writer has been careful, a lawyer, having a document referred to him, may sit in his chair, inspect the text, and answer all questions without raising his eyes”

Language is a tool human beings use to convey their thoughts. Taken out of this context, it quickly becomes worthless. If you don’t understand the context in which a statement is being made, you are very likely to get its meaning precisely backwards.

kevin,

I’ll agree that it is implausible if you focus on the intent of the folks sent to the convention, and possibly their principals. As to what the general public (or to be more precise, the land-holding white male public) thought it meant? I’m not sure I can sign on to any of the arguments for any side. Just as now, they used generic, vague language so that everyone thought they were getting what they wanted from it. What one portion of the public thought it meant was probably significantly different from what another portion thought. And in the end, just as now, the question of what the text actually meant was left for a court to resolve, usually based upon the individual judge’s morality or political patronage.

In the context of the present system, I would approach things by inverting a statement from Karl von Clausewitz. To paraphrase: “Politics (and law) is the continuation of war by other means.”

When operating within the context of the actually existing legal (and political) system, I think “this is war” is the correct outlook and the only real issue is achieving victory. Win using whatever weapons you can gather.

As for the question of some alternative system, I am in favor of completely overhauling how law and “justice” is implemented. Some preliminary suggestions:

1. Repeal non-victim crime laws, either through statutory repeal, judicial fiat or simple non-enforcement.

2. Expand the right to keep and bear arms and use them in self-defense, whether against ordinary criminals or criminal agents of the state (like home invading police agents).

3. End bail requirements and pre-trial detention for non-violent defendants. Defendants in a civil case don’t have to put up bail.

4. Less reliance on public police, fewer police, and more reliance on citizen militias, posses, neighborhood watch, private security, etc.

5. Jury nullification.

6. Abolish district attorneys. This is a big one. Both defendant and victim should be able to bring their own counsel to court. Indigent crime victims could have a court appointed lawyer just as indigent defendants currently do. If the victim is deceased, the responsibility falls to their next of kin.

7.Peremptory challenges to judges like there presently are with jurors. Preferably, any person, professional judge or not, should be able to arbitrate a case if both sides agree to use that person as a judge. Perhaps there could also be private appeals courts that defendants could appeal to as a more likely disinterested third party.

8. Less emphasis on retribution and more on victim compensation.

9. Abolition of prisons in favor of penal colonies with more normalized living conditions.

10. While not dogmatic about this, I think abolition of capital punishment would be a good idea.

11. Eliminate debtors’ prisons by ending imprisonment for non-payment of taxes, fines or child support.

12. Amnesty for all current prisoners not convicted on a victim crime. Amesty on the condition of restitution for others.

This is just the beginning. Some of these could probably be implemented with the context of the present system. Others would probably require what would amount to a revolution. There are strong cultural barriers to others.

Yes, that’s my attitude as well. I agree that holding the powers that be to the letter of the Constitution is if nothing else a useful tool in exposing their hypocrisy and insincereity. And by all means I endorse the idea of using whatever legal tools are available for self-defense.

If I go to court, whether as advocate for some issue, or a regular litigant, or a common criminal defendant, I want my lawyers to use every weapon they can dish out. If appealing to textualism and originalism will influence the court, so be it. If a liberal “living constitution” theory works better, fine. Appeals to natural law, common law, canon law, Aristotle, God, The Bible, The Koran-whatever will work on a particular case with a particular court at a particular time is fine by me.

I’m reminded of an old episode of The Addams Family where Gomez and Uncle Fester go to court:

Gomez: I don’t think we can wim.

Fester: Not even if we bribe the judge?

By “traditional,” I meant the canons that were emerging around the late 18th and early 19th century, when the courts were shifting from the concept of law as “found” to a positivistic view of law as the command of a lawgiver. And I should have made it explicit that they were canons for determining the intent behind a *statute*.

Quasibill,

I’ve seen a lot of arguments by a lot of constitutional law professors, some of them for some pretty implausible constructions. And that construction of the Commerce Clause is one of them. While there’s a range of disputable meanings of the clause based on the surrounding history, the evil it was aimed at remedying, and the use of language at the time, I would still argue that that range is limited, and some constructions (like the ones you mention) are completely outside that range. Some constitutional law professors’ arguments are more plausible than others’, when evaluated in light of objective historical evidence.

And the whole idea of a fundamental law coming from the people acting in some special sovereign capacity, and superior to the ordinary political government, would be moot if it could be overturned by a simple political majority.

Keith,

I wasn’t suggesting that courts today are likely to do this in any principled or reliable way. Far from it. And I don’t believe the Constitution has any ultimate moral authority. I believe the Federalists staged what was in fact a coup, and I’d much prefer to be living under the Articles of Confederation. But so long as the current government claims to be bound by the Constitution, it’s a useful weapon to use against them. Although the Constitution was in fact a Trojan Horse, and quickly used as such by Hamilton & Co., to the extent that its text carries an objectively verifiable meaning it can be used as a political weapon. My attitude toward the federal government is “All right, you people claim to be bound by the Constitution. Well, by God, so long as you claim to be bound by it, we’ll at least hold you to it until we can get rid of you altogether. And here’s what it’s says….”

I am constantly amazed at how powerful a hold over American minds the view that the intention of the founding fathers crucially matters is. Libertarians of course love a legal methodology that looks to the thoughts of thinkers who were for the most part more “libertarian” in many respects that today’s public officials. As far as a justification for why we ought to look at original intent or original public meaning, the answer is usually some along the following question-begging lines. “That’s just what it means to do legal interpretation.”

I wouldn’t follow PM in the view that law *just is* emergent law, that *enacted law* is an oxymoron. Perhaps PM’s right on the original meaning of words, but of course that doesn’t mean we ought to accept those meanings today.

notice how the most well-known part of Scalia’s opinion has absolutely nothing to do with the law, and everything to do with the resulting morality? By and large, judges rule based upon moral interpretations (when they’re at their best - as opposed to when they’re acting on corrupt or crony bases) and their opinions inevitably come back to this grounding, because that’s what the general public connects with. I’d bet less than 10% of the U.S. public has any idea what the underlying legal issues were in the case - but better than 75% have a strong opinion on the result of the case.

Pretending that there is some objective, abstract ideal that rules the public is just convenient cover for the reality that it is only human beings that act, and therefore rule. Words written on a piece of paper cannot act, and therefore cannot rule - they can be a cause that rallies acting human beings, but they do require the human beings to be more than kindling.

I suspect there is zero chance that the US federal courts or the USSC will ever interpret the Constitution in any way that anyone on this forum would find particularly appealing. Judges are political appointees, chosen primarily for their party affiliation and their acceptability to the ideological and economic interest groups that control the political process. A judge is not some kind of machine that operates some mechanical process called “law”, but a real person with his own professional and economic self-interest, ideological agendas, cultural biases, psychological quirks, character flaws and so forth. Beyond that, there are also the issues of patronage, cronyism, and outright corruption.

In a centralized mass democracy, with a infinite variety of cultural and subcultural groups, and the state claiming the prerogative of interfering in society at every level and in every area of life, the so-called “law” is at best a more subtle substitute for an all-out civil war, rather than a peaceful process for settling disputes according to some objective or even nominally consensus-based criteria.

It is for these reasons that I have long advocated the kind of political decentralization and cultural separatism that quasibill is describing.

Give me a line of text, and I can cite a canon of construction for each of two conflicting interpretations.

re: original intent -

in the case of the Constitution, the law-giver (ratifier) is the people. The only “intent” that should matter, if we’re assuming this line of reasoning as defensible, is what the general public understood the documents to mean. And on that matter, I can give you a very popular book written by a famous law professor that will make libertarian hair curl with his evidence that “commerce” meant any sort of communication between people.

Getting back to Paige’s post, I’d say that we all should be thinking about whether we want these people (like Scalia, or further to the religious right) to have a say in how we live our lives. The larger the political body, the more of these people you’re going to find; the more of these people in your political body, the more they’re going to have to say about how you live your life.

The only defense against this dynamic is to reduce the size of the political body - let them have their theocracy, while letting you have your liberal cosmopolitan democracy.

Even to think in those terms is to buy into how the debate is currently framed, as though law is given at all, that someone had the right to give it and any discretion that mattered, and the only question is how to implement that. Yet in origin it goes back to discerning what some abstract law is, not to implementing it. That’s why the etymology of judge (Latin: Ju-Dex) goes back to ius-dicare (right/law/custom-say) which is not in the pattern of, e.g., edifice (aedes-ficare from building-make).

In origin, law does not admit of either a creator or a discretion. What is done along those lines, and is called law, rests on the idea of a delegated authority from some deeper source. There may be discretion within the latitude that that allows, or a personal style in how a thing that must be done is done, but the idea of law has more in common with “law of nature” and a judge’s (original) function has more in common with that of a doctor in diagnosing and prescribing in relation to a patient’s condition; diagnosis may vary either through human fallibility or variant ways of saying the same thing, and prescription through different paths between a starting point (disease) and a destination (health), but neither can vary in the givens they rest on - or they rest on nothing, ipso facto (which, inter alia, is why most state activity does in fact rest on nothing - but I digress).

Well, the traditional role of the courts is to apply the will of the lawgiver, and to interpret the law in such a way as to reconstruct the will behind the law. And the conventional way of doing this in common law courts is to apply a set of canons of legal construction.

Two of the most important are:

1) Starting with the language of the text, you read ordinary terms according to their ordinary usage at the time the law was passed, and read legal terms of art as they were understood by the legal profession at the time; and
2) Consider the primary evil the law was intended to remedy, as evidenced by contemporary history.

One thing missing from the traditional canons, as Blackstone stated them, was the legislative debates and other legislative history. The will of the legislator was to be inferred from circumstantial evidence, rather than the explicit statements of the legislator on the floor of Parliament. But that was because Hansard’s first published transcriptions of Parliamentary debates came after Blackstone’s time.

In the case of the Constitution, the sovereign lawgiver whose will is to be reconstructed is not the Framers, but the ratifiers. And we’ve got enough primary documentation to provide at least a preponderance of evidence for the meaning of various delegations of power (the contemporary history of the period, assorted federalist pamphlets, and the federalist statements in the ratifying conventions). If the evidence is ambiguous, it’s at least sufficient to establish a finite and fairly limited range of possible meanings, from most to least restrictive, and to clearly rule out some interpretations as outside that range.

And since the Constitution was framed by a gang of lawyers, and the delegates to the ratifying conventions also had a large contingent of lawyers, they probably understood that the language of the Constitution would be interpreted according to common law canons of construction.

Just to take one problem that’s been especially interesting to me, there’s the “advice and consent” clause of Article II. In the state constitutions of the 1780s, “advice and consent” always appeared in the case of a weak executive: either a plural executive in which the nominal head of state was simply the presiding officer (the literal meaning of the word president); or a weak executive with a privy council attached to his office, whose advice and consent was required for the exercise of his most important powers. And the two cases where the state executive was called a President, Pennsylvania and Delaware, the office was restricted in just this way. That evidence at least suggests that the U.S. President was originally intended to be the presiding officer of a plural executive (the President-in-Senate), or that it was to be a weak executive with the Senate attached as a privy council.

Just as a side note, all these Unitary Executive wonks who act like there’s some general grant of undefined “executive power” are full of crap. One of the delegates to the Federal Convention, discussing Article II, started by reading Blackstone’s enumeration of the royal prerogative. The delegate noted that every single power included under the royal prerogative was explicitly addressed in the Constitution: it was either expressly granted to the President, or expressly denied to him, or expressly granted or denied to Congress. There was nothing left over as a basis for the godlike powers the Federalist Society types these days attribute to their “Commander-in-Chief.” The office of Commander-in-Chief itself was comparable to a Roman general in the field reporting back to the Senate.

Nobody holds more hatred for the drug “war” than I do, and nor is anyone more suspicious of prosecutors and cops who go bad, “testilying,” planting evidence and etc.

That said, I would not wish to this site become a place where celebration of beating cops with metal pipes and the like is the usual fare in comments.

Now, I can accept expanding the equal protection clause to other despised minorities when the discrimination is egregious, as it was in the Lawrence TX case, e.g., prosecuting only homosexuals but not heterosexuals for the same sex acts. But the right decision, in my view, is to tell the states you prosecute everybody for that “crime,” or no one. And then to actually do it.

I don’t see Brown as an example of judicial activism. By the time of that decision is was beyond apparent that “separate but equal” was never going to be equal, and that even attempting that scheme carried forth the “badge of slavery” for African-Americans. Per the 14th Am, Brown has a solid foundation in the Constitution.

If enough conservative hit the bench, I guarantee you they will want to see the unborn fall within the classes the 14th is meant to protect. My own Con Law prof believed that. Nevermind, again, that no one at the time thought that that amendment spoke even remotely to abortion.

The old site should be back up soon. The host server is being changed and there were some technical glitches. All the old articles should be there as well.

See if this one works.

I think Raimondo’s theory is that Israeli intelligence may have had foreknowledge of the attacks (or at least that something was brewing). As with most theories of that type, my attitude is I’ll believe it when I seen some hard proof.

I don’t necessarily oppose Raimondo, I just find his style grating and self-important. I’m sure I’m not the only one. His accusations that the Israelis were behind the 9/11 attacks doesn’t help.

Here’s a summary of my actual views:

http://attackthesystem.blogspot.com/2008/01/next-radicalism-right-without.html

And here’s our forum:

http://groups.yahoo.com/group/attackthesystem

I’m really more interested in why you oppose Justin Raimondo than your views on me. Antiwar.Com is a tremendous resource on foreign policy news and commentary and I find Justin to be a very penetrating foreign policy analyst.

“Having lived through the tail-end of the sixties, which involved a lot of ineffectual preening by self-styled revolutionaries, I wouldn’t want to see this very interesting project of building a liberal-libertarian alliance go down that road.”

Sounds like you’re talking about the Weathermen.
But I agree with you. This forum is a very good effort towards liberal-libertarian discussion.

Having lived through the tail-end of the sixties, which involved a lot of ineffectual preening by self-styled revolutionaries, I wouldn’t want to see this very interesting project of building a liberal-libertarian alliance go down that road.

Exactly. What I would really prefer is that jurists rule according to the constitutional interpretation outlined in Lysander Spooner’s “NO Treason”. Not that it would ever happen.