A Jurisprudence of Original Intent?

You're wrong, Thomas. The Ninth amendment is not a source of substantive protection of unenumerated rights; it is a rule of constitutional construction.

Accordingly, when you claim that "abortion" (more specifically, a woman's liberty interest in determining for herself whether to continue or terminate a pregnancy and to control her own procreative destiny without unreasonable government interference) is not mentioned in the Constitution and is not protected, you are engaging in the very evil act of constitutional construction that the founders sought to prevent by the Ninth Amendment.

Debra_Law wrote:

You're wrong, Thomas. The Ninth amendment is not a source of substantive protection of unenumerated rights; it is a rule of constitutional construction.

I understand that, and I also understand that limiting the scope of protected rights only to the ones explicitly enumerated is an unacceptably narrow. But your reference to the Ninth amendment doesn't tell me when, in your opinion, a court would interpret the constitution too broadly in terms of the rights it protects. Assuming that you have a case where one party alleges that a constitutional right is violated, but the interest violated is not a constitutional right. In your jurisprudence, how do you ever reach the conclusion that it's not a constitutional right?

Accordingly, when you claim that "abortion" (more specifically, a woman's liberty interest in determining for herself whether to continue or terminate a pregnancy and to control her own procreative destiny without unreasonable government interference) is not mentioned in the Constitution and is not protected, you are engaging in the very evil act of constitutional construction that the founders sought to prevent by the Ninth Amendment.

Again -- I am not denying that a woman has a protected liberty interest to make that determination. I am denying that the democratic process is undue for the purpose of determining what government interferences are reasonable.

Probably as far back as Hippocrates, reasonable people have been disagreeing on what restriction on the woman's liberty can be justified by the interest of the embryo. The US Supreme Court is in no privileged position to decide this question, which is fundamentally one of ethics, not law. It therefore was wrong of the Supreme Court to preempt public debate and the democratic process in the way it did.

Thank you very much for correcting my sloppy writing about the constitutional convention in your earlier post, and thank you for all the cases you provided in this one. I'll respond to that part when I have familiarized myself with them. Right now it's 11 pm in Germany, and I've got to go.

Thanks for your understanding. Given that you are a jurist, it only seems plausible that you would rather give judges their moment of brilliance rather than let public discussion and voting run its cause. I understand, too.

I am not sure I understand: Did the Scalia snippet you quoted to me in your earlier post advocate a view you think meaningless? (I know you may not agree with it, but do you find it meaningless?)

I have not examined this question, since I am not really interested in the lawmakers' intent. As I said, legislators frequently intend different things when they cast the same vote on the same bill; and even if they intended the same, laws frequently have unintended consequences. That doesn't change the meaning of the words.

Now let me back up, if I may, on this concept of society progressing and maturing. As I mentioned in an earlier answer to Debra, I have two fundamental problems with any jurisprudence based on that assumptions. Firstly, as virtually every European who knows European history will tell you, societies don't always progress and mature. Quite frequently they regress and decay. Thus, the assumption both Debra and you implied, that American society continuously improves, strikes me as extremely naive. It is only by the grace of Murphy that America has never quite gone the way of Yugoslavia, Chechenya, or Northern Ireland yet. If it does, how does your jurisprudence apply to that scenario?

My second problem is this: Even if I conceded that society's standards of decency are improving, and that the Court's opinions could track them, I would still be left with a practical problem: Society already has a method for reflecting these standards in their laws: They can always discuss their old laws, decide that they no longer reflect them, and vote for legislators who change them. Which other methods does a court have for tracking society's evolving standards of decency, and what makes you think these methods generally work better than public debating and voting? I know you can cite cases where this has happened to be the case, but what makes you think the Supreme Court's tracking methods for social mores generally work better than popular vote?

A lot of things could be said about a lot of subjects, but that doesn't necessarily mean we have reason to think them true. Could you point me to a few Supreme Court cases where, in your judgment, the 'originalist' opinion starts with the text of the constitution but ends up subverting its properly understood meaning, and the 'living constitution' style opinion doesn't?

I already told you, but I think you missed it: The Constitution protects ALL liberty interests, great and small.

4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

You fail to understand that the people did not delegate power to the democratically elected branches of government to arbitrarily or oppressively deny or disparate liberty interests.

However, our founders did not establish a pure democracy so your insistence that people resort to the democratic process when their liberty interests are arbitrarily infringed is without merit.

We are a nation of laws, not of men. The mob doesn't rule.

Our founders placed constitutional limitations on the democratically-elected branches of government in order to secure individual rights from the oppressions of the many. We placed absolute authority in the Supreme Court to interpret the Constitution and determine its meaning as applied to cases and controversies arising under the Constitution while retaining the power to amend the Constitution if that's what we desire for our happiness.

Resort to majoritarian ethics (or morals) would be fine if we were a nation of ethics (or morals) rather than laws. But, we are not. We are a nation of laws, not of (ethical or moral) men.

In this country, moral disapproval alone is not a legitimate government interest that would allow the majority to force their morals/ethics on others through the operation of laws.

Debra_Law wrote:

I already told you, but I think you missed it: The Constitution protects ALL liberty interests, great and small.

Then why didn't the founding fathers write it that way? Why didn't they write what Thomas Jefferson wrote into the French constitution?

Thomas Jefferson, co-authoring the Universal Declaration of Human rights, wrote:

4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

As we see, this founding father was capable of using such language. Why didn't the authors of the 5th and 14th amendments use words like "everything" and "no limits", unless they wanted to retain a discretionary power of the (state) legislatures to impose some limits on something?

It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights.

It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. ``WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.'' Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

You fail to understand that the people did not delegate power to the democratically elected branches of government to arbitrarily or oppressively deny or disparate liberty interests.

Whether I fail to understand it or not, I suspect this point is a non sequitur. I see nothing in the US constitution saying that state governments have no powers except the ones explicitly delegated to them. It only says that about the federal government. I am unaware that the Supreme Court has ever incorporated the Tenth Amendment via the Fourteenth, in a sense such as this: "The Powers not delegated to a State by its Constitution, nor prohibited by it to its Counties, are reserved to the Counties respectively, or to the People." I might add that I find this unfortunate. Such an amendment would surely be nice to have.

However, our founders did not establish a pure democracy so your insistence that people resort to the democratic process when their liberty interests are arbitrarily infringed is without merit.

My claim is that parliamentary democracy by itself is a due process of law: It is a process ensuring procedural fairness in the codifying and enforcement of the law. Legislation that passes through such a process may be disagreeable to some -- but it is not arbitrary, as evidenced by the fact that it passed. At the very least, it certainly is less arbitrary than the transient majority of nine judges writing their biases into the version of the constitution the legal system enforces.

We are a nation of laws, not of men. The mob doesn't rule.

This strikes me as a false dichtonomy twice over. Firstly, judges are men like everybody else. When they interpret the supreme law of the land as an invitation to insert their own value judgments wherever it uses vague terminology, that makes it emphatically not a rule of law. It makes it the rule of maybe 150 men over maybe 220 years.

Secondly, America isn't the only place where the mob doesn't rule. England, for example, is another such place. England has no written constitution and no judicial review that would enable courts to strike down laws as unconstitutional. The rule of law is doing fine there. In fact, I sometimes wonder if America might be a better place today if your founding fathers had just paid their stupid taxes, shut up, gone home, and remained citizens of England. But I digress. Anyway, I think both sides of your dichtonomy unpersuasive in the context we are discussing

Our founders placed constitutional limitations on the democratically-elected branches of government in order to secure individual rights from the oppressions of the many. We placed absolute authority in the Supreme Court to interpret the Constitution and determine its meaning as applied to cases and controversies arising under the Constitution while retaining the power to amend the Constitution if that's what we desire for our happiness.

Similar things could be said of those who founded the Islamic Republic of Iran: They placed constitutional limitations on the democratically elected branches of government in order to secure decency from the sinfulness of the many. Either way I don't like the resulting possibilities for judges writing their prejudices into the constitution. Over history, these possibilities have too frequently frustrated the purposes for which they were created. This is one reason I argue for policies of interpretation that I think likely to ameliorate the damage.

Resort to majoritarian ethics (or morals) would be fine if we were a nation of ethics (or morals) rather than laws. But, we are not. We are a nation of laws, not of (ethical or moral) men.

There's your false dichtonomy again. Judges on the Supreme Court routinely insert their ethics into the law wherever it uses broad words like "necessary and proper", "due" process, "cruel and unusual" punishment, or "equal protection" of the law. Hence, the dichtonomy we face in practice becomes majority ethics vs minority ethics, rather than majority ethics vs the law. More precisely, we are talking about the ethics of a small, unelected, minority. A majority accountable to noone, knowing that its errors and usurpations are legally binding by definition. It defies all experience with human nature that they wouldn't take advantage of that to promote dubious ethical doctrines. And as Joe indicated after you posted, there is plenty of historical evidence that they did.

In this country, moral disapproval alone is not a legitimate government interest that would allow the majority to force their morals/ethics on others through the operation of laws.

Let's test that against a hypothetical case where majoritan ethics strongly point one way and current constitutional jurisprudence points the other. Say I routinely go to women's toilets. A shopping mall that doesn't like my conduct sues me, according with long and deeply held moral sentiments of the majority. I argue that separate but equal toilets for men and women are unconstitutional for the same reason they are unconstitutional for blacks and whites. Nothing but majoritan ethics -- racist ethics in the one case, prudish ethics in the other -- has sustained either institution. Racially segregated toilets have already been found unconstitutional. Moreover, as an abstract matter of law, the analogy between race and gender is as good in the toilet case as in the marriage case. You yourself have used the analogy in other threads, arguing that restricting marriage to couples of different sexes is unconstitutional. Ergo, argues my lawyer, gender segregation of toilets is unconstitutional. Do I have a case? (We discuss that one a lot in the asylum. )

I just don't think that Scalia's rejection of an "original intent" analysis of ordinary legislation can be reconciled with his acceptance of an "original intent" analysis of the constitution. That's not meaningless, that's contradictory.

Well, the meaning is certainly informed by the intent. Take a famous case from the UK: two men are fleeing from the police. One is armed with a pistol. They are confronted by an officer, and the unarmed accomplice yells to his armed counterpart "let him have it!" The armed man then shoots the officer.

Likewise, when we see the phrase "freedom of the press" in the First Amendment, we can understand what it means by what the framers intended. Surely, even you agree with that position, Thomas, since you acknowledge that "press" means more than just "printed materials." If the framers intended "press" to cover all forms of communication, then their intent is crucial to interpreting the meaning of that phrase.

If we read the constitution purely textually (as Scalia wants to do with ordinary legislation), then there would be no reason to place any emphasis upon what the framers thought they meant at the time they drafted the document. "Freedom of the press," then, would mean what we think the text means, nothing more and nothing less. That's more like an interpretation of it as a "living constitution."

That's an extremely odd position coming from a self-described libertarian.

If you don't believe in the innate "rightness" of institutions, left on their own and free from outside interference, then I don't quite understand your continued adherence to libertarianism.

If a society cannot be trusted to come up with its own definition of "freedom of press" to suit itself, for instance, then why should it be trusted to come up with its own definition of "free markets?"

I don't assume that American society continuously improves. Indeed, I am quite prepared to say that people, in general, are always on the verge of reverting to a Hobbesian state of nature.

But then I also don't think that the craft of textual hermeneutics continuously improves either, which is something that I suspect you believe.

I'm not as familiar with French history as I am with American history, but the French Declaration of Rights was not a constitution.

Legitimate government powers are those powers specifically delegated by the people to the government.

The people never delegated powers to the government to arbitrarily or oppressively deny or disparage their liberty interests.

The judicial branch of government is the neutral branch. If government conduct or the enforcement of a statute is unreasonable, arbitrary, or oppressive, the injured individual may invoke the power of the court and seek justice. That's the benefit of our constitutional republic: Liberty and justice for all.

On what grounds would the mall sue you? We can't discuss whether you have a valid defense to a claim until we know what the claim is.

Thomas: I don't want you to think that I'm ignoring you, but I anticipate that it will take a while before I can respond to your latest post.

Debra_Law wrote:

I'm not as familiar with French history as I am with American history, but the French Declaration of Rights was not a constitution.

It was first written as a standalone document, that's true. But it was included in the constitution of 1793, and it has been included by reference in every French constitution since Napoleon III (1855 I think). France has run through 15 different constitutions since 1791, so yes, their constitutional history is a lot messier than yours. But the universal declaration has been part of the constitution since the 1850s. And as I understand it, almost all federal Bill of Rights cases happened later than that.

Debra_Law wrote:

Legitimate government powers are those powers specifically delegated by the people to the government.

While most state constitutions contain language to this effect, I wasn't aware that Hamilton's federalist paper addressed state constitutions too, or that the federal constitution does with its concept of enumerating delegated powers. I am still not convinced that this is a proper application of the federal constitution to state constitutions.

The people never delegated powers to the government to arbitrarily or oppressively deny or disparage their liberty interests.

1) Is it your opinion that all restrictions to abortion prior to the third trimester are arbitrary and oppressive? 2) Hypothetically, suppose the Supreme Court had decided the opposite of what it actually decided: That embryos have a right to live, that the people never delegated powers to the government to arbitrarily or oppressively permit the killing of embryos, and that it therefore violated the federal constitution if states permitted abortion. Therefore, continues our hypothetical Supreme Court, abortion has to be illegal except in enumerated cases as rape or incest or danger to the mother's life, when it is allowed. Would you stand by your points about delegated powers, substantive due process, constitutional limitations on the elected branches etc., even though the court had applied them in such a way as to to come out the opposite way?

The judicial branch of government is the neutral branch. If government conduct or the enforcement of a statute is unreasonable, arbitrary, or oppressive, the injured individual may invoke the power of the court and seek justice. That's the benefit of our constitutional republic: Liberty and justice for all.

Tell it to the victims of slavery -- the same slavery judicial-review-less Britain abolished generations before America did, and which the Supreme Court tried to uphold at the time, invoking substantive due process. (Sorry, that was an old one -- you must be hearing it a lot.)

On what grounds would the mall sue you? We can't discuss whether you have a valid defense to a claim until we know what the claim is.

Well, on which grounds would a mall in the segregated South have sued a black guy who used the white's toilet? [Thinking ...] On reflection, they probably wouldn't have. Instead, their security personel would have thrown him out, and he would have sued for violation of his equal protection rights (and perhaps liberty rights.) So let's say this is how it works in our case about the man in the woman's toilet. And let's say it's not a mall, it's a government office building, so the law doesn't cut the building's owner any slack on liberty of contract grounds.

So the man who works in a government office building uses the woman's toilet; the cleaning lady calls security; security throws him out. The man sues for violation of 5th and 14th amendment rights, arguing that gender-segregated toilets are as constitutionally suspect as race-segregated ones. Does his case have a chance of prevailing?

And as I understand it, almost all federal Bill of Rights cases happened later than that.

Thomas wrote:

And as I understand it, almost all federal Bill of Rights cases happened later than that. (Emphasis added in response to Setanta's response.)

Then your understanding is fatally flawed. The "Bill of Rights" refers to twelve amendments proposed by the First Congress, and sent to the several states by the Speaker of the House, Augustus Muhlenberg, in September, 1789. The last ten of those proposed amendments, three through twelve, were ratified by the states and became the first ten amendments to the Constitution on December 15, 1791. The second amendment proposed was ratified as the twenty-seventh amendment in May, 1992.

(1) The state may regulate the medical profession. As with ALL medical procedures, the state may require that a patient's medical decision is informed. So long as state regulation of the medical profession does not place an undue burden on an individual's liberty interests, the state regulation passes constitutional scrutiny.

If your argument is that the state is depriving the fetus of its interest in life by failing to protect that life, case precedent firmly establishes that the government has no affirmative duty under the due process clause to protect any person. The Supreme Court is without power to impose that duty on a state to affirmatively protect life through state laws.

In short, a court would NEVER rule that a state violates the federal constitution if a state "permits" abortion. Abortion will never be a fetus's right to life or equal protection issue.

What if it's an unlocked facility with several stalls with doors, several sinks, and mirrors, and I'm standing in front of a mirror with my skirt hiked up to my waist while I'm straightening my skewed and uncomfortable panty hose. Is your hypothetical man in the ladies bathroom to straighten his panty hose too? I can't analyze the situation until all the facts are in.

I didn't say the Bill of Rights happened after Napoleon III. I said most federal Bill of rights cases happened after that. Findlaw.com has an annotated constitution which illustrates this, among many other interesting facts about constitutional case law in America. I stand by the statement you quoted and took issue with.

Thomas wrote:

I didn't say the Bill of Rights happened after Napoleon III. I said most federal Bill of rights cases happened after that. Findlaw.com has an annotated constitution which illustrates this, among many other interesting facts about constitutional case law in America. I stand by the statement you quoted and took issue with.

In that case, in the context of the paragraph in which the statement appears, and as a response to Ms. Law's remark, your remark is meaningless--a mere curiosity.

Here, Thomas, i'll make it easy for you.