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Living Originalism
The progressive case for Originalism

[Living Originalism] allows [liberals] to claim that the Constitution belongs to [them]. It's not something that [just] belongs to people who dress up in tricorner hats and appear at Tea Party rallies. [...] Liberals have to reclaim the Constitution as their Constitution. To do that, they have to say, it's my text, it's my tradition, it's my connection to the [Founders.] It's my structure of government [the Constitution] that promotes what I think is right. -- Professor Jack Balkin
In his book Living Originalism, Professor Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, has brought forth his thesis of an understanding of our Constitution that is both faithful to its intended original purpose and consistent with progressive values. Professor Balkin rejects as a "false choice" the view that one must pick between seeing the Constitution as a "Living Document" or being faithful to its original intent. In fact, he believes authentic originalism requires a belief in both.

On April 27 and 28, Yale will hold a conference discussing these ideas. It will have an all-star legal cast as well as some all-star legal journalists. Professor Balkin was kind enough to talk with Adam Bonin and me about his book, the upcoming conference, Living Originalism, constitutional interpretation, politics and the Supreme Court. A report on the conversation on the flip.

Conference Living Orignalism
Talking heads with something to say
The thesis of Professor Balkin's Living Originalism has been percolating in his writings for the past 7 or 8 years. Perhaps its most thorough treatment prior to this book was in a 2009  Northwestern Law Review article:
Original meaning originalism and living constitutionalism are compatible
positions. In fact, they are two sides of the same coin. Although not
all versions of these theories are compatible, the most intellectually sound
versions of each theory are. Recognizing why they are compatible helps us
understand how legitimate constitutional change occurs in the American
constitutional system.
For more background, see Prof. Balkin's Abortion and Original Meaning. And for my thoughts, Constitutional Interpretation, Originalism and a Living Constitution.

One of the central points Professor Balkin made in our conversation was the basic artificiality of the concept of the "originalist" as the term is understood in the political conversation. He argues that authentic originalism is actually progressive, as opposed to the rhetoric of "originalism" conservatives have used as a political tool to promote their policy agenda. Balkiin notes that reputed "originalist" judges are originalist only some of the time, and abandon originalist language when it is inconvenient for them.

I asked him about the observations of Justin Driver, who questioned a progressive embrace of any originalist framework. Prof. Balkin responded:

Liberals have a problem with the idea of constitutional fidelity. That is they think that what it means to be faithful to the Constitution is captured by the way originalists talk and as a result too many have been too eager to jettison the history of the Constitution. They don't want to talk about the text of the Constitution or to make arguments from structure. Instead they want to make arguments from their favorite cases from the Warren Court era and the Burger Court era. [...] It seems to me that is a bad idea because American constitutional culture emphasizes (1) the centrality of the text; (2) that we have a written constitution; (3) emphasizes our connection to the American project over the whole course of our history and (4) is interested in the idea of what the Founders thought.

When liberals shy away from [originalism] because they think that's what conservatives do, they basically fight over the meaning of the Constitution with one hand tied behind their back. [...] What's in it for liberals [to fight for Living Originalism]? It allows them to claim that the Constitution belongs to you. It's not something that just belongs to people who dress up in tricorner hats and appear at Tea Party rallies. When you assume it belongs only to conservatives, you then have to say 'oh guys aren't you silly. don't you know we are all past that now.' That's just the wrong way of thinking about your relationship to the Constitution. Liberals have to reclaim the Constitution as their Constitution. To do that, they have to say, it's my text, it's my tradition, it's my connection to the [Founders.] It's my structure of government [the Constitution] that promotes what I think it is right.

And that's the big takeaway from the book.

To illustrate his point regarding the radical and revolutionary nature of right-wing "originalism," Balkin examines the example of Martin Luther:
Originalism is a cultural trope [...] A revolutionary trope. Originalism is a revolutionary idea. It's not an idea about stasis. It's an idea about change.  [...] The most famous example of this in Western thought is Martin Luther. Martin Luther was an originalist. He was also a revolutionary. His attack on the Catholic Church was an attack on its corruption and its failure to be faithful to its traditions and its roots. So Luther adopted this Protestant vision of sola scriptura -- you have to return to the text. You have to return to the basic presuppositions of the early Church fathers.

When he does this he is not being a conservative, he is being a revolutionary. That's hard for people to wrap their minds around because they associate originalism with political conservativism and they associate conservatism with resistance to change. But that's not what the conservative movements of the last 40 years have been about. They are revolutionary movements. They have attacked the liberal status quo. They have attacked the achievements of the middle of the 20th Century and said they want to overturn them.

You can see this most obviously in the Tea Party which is revolutionary, not status quo.

Balkin urges the recognition of the revolutionary nature of right-wing "originalism" and recommends a robust response:

The problem for liberals is they have become too soft and too defensive and play a game of responding to attacks. What they need to understand is that if the constitution is yours, then its redemption is your responsibiilty which means you have to take the Constitution and defend it as yours.
How to do this in a principled way? Balkin's answer is "Living Originalism:"
The text and the history of the Constitution, its original design and purpose, gives . . . liberal[s] leverage to criticize what has been done in the last 30 years by right wing "originalists" who are actually unfaithful to the Constitution.
Balkin underscored the importance of the citizenry in the understanding and interpretation of the Constitution. In reaction, I raised a question of the image and role of the Supreme Court, I asked Prof. Balkin:
ARMANDO: Is it important for the Living Originalism idea that people understand that the Supreme Court is not this isolated institution of wise men untouched by the rest of us?

BALKIN: I think  it is important they know two things. [..] The first that we expect judges to decide cases based on the law [...] at the same time we want them to understand what is going on the world [...] and we want them to be honest about that. [] So we want 2 things, [...] we want them honestly and in good faith to do the work of legal development  and second, we want them to not pretend that what they are doing has no relation to the rest of the world [...]

ARMANDO: The whole balls and strikes nonsense.

BALKIN: The whole balls and strikes nonsense was an insult to everyone's intelligence. It really was. It's perfectly ok to say we hope judges will be impartial. [...] But it is insulting to our intelligence to say that what courts do has no effect on society. That's just silly.

We also asked Professor Balkin to provide his views on the Affordable Care Act case currently before the Supreme Court and he obliged us with the application of the Living Originalism idea in action:
BALKIN: [...]  the Constitution was drafted [with] federal and enumerated powers. . . [T]he federal government had the power to legislate where the individual states were incompetent or where the harmony of the union would be disturbed by separate state legislation. This is Resolution VI of the Philadelphia Convention which is the basis of the [list] of the enumerated powers.

So  . . . when we ask whether Congress has the power to enact something [we ask] whether or not it is solving a genuinely federal problem. That's the structural question. . . .
The power to regulate commerce among the several states is solving federal problems of commerce . The power to tax and [to provide] for the general welfare is solving federal problems. . . .

So look at the Affordable Care Act -- is it solving a federal problem? You bet it is. [...] Of course it is a federal issue. And so if it is a federal issue, then Congress is equipped under the Commerce power and the General Welfare Clause to take steps that are reasonably calculated to solve the federal problem. And that is what it has done. [...] Under McCulloch [the Necessary and Proper Clause case, McCulloch v. Maryland] the Affordable Care Act is reasonably calculated and proper. [...]

Now . . . when the federal government was created, the most important power, the first power in the list of enumerated powers, is the power to tax, to provide for the general welfare. [...] And not only did the Constitution provide for taxes, it provides for duties, imposts and excises. They have like five different names for taxes. . . . [T]he test for whether Congress can levy a tax is whether it serves the general welfare. . . .

Now what is the individual mandate? It's a tax! [...] [D]oes Congress have the power to tax? The test is whether the tax can be seen as promoting the general welfare. Of course it can. The . . . tax promotes the general welfare because you want to lower the insurance rate for everyone else and to avoid the death spiral of increasing insurance premiums if people wait until they are sick to buy insurance. [...]

There is the argument. The only case I cited was McCulloch. All I did was cite text, history and structure [of the Constitution.] [...] When I read people talking about the Affordable Care Act I read about Wickard and his farm and Raich and her marijuana. Forget it. You don't need that. Talk about the Framers. Talk about the history of the Constitution. Talk about the text for pete's sake.

Pretty compelling, don't you think? Me being me, I had to make my own points. I mentioned to Professor Balkin that I believed Chief Justice Story provided a similar view in his 1833 Commentaries on the Constitution:
[A] constitution of government, founded by the people for themselves and their posterity, and for objects of the most momentous nature, for perpetual union, for the establishment of justice, for the general welfare, and for a perpetuation of the blessings of liberty, necessarily requires, that every interpretation of its powers should have a constant reference to these objects. No interpretation of the words, in which those powers are granted, can be a sound one, which narrows down their ordinary import, so as to defeat those objects. [...]  It could not be foreseen, what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which at the present might seem salutary, might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require.

. . . In the interpretation of a power, all the ordinary and appropriate means to execute it are to be deemed a part of the power itself. This results from the very nature and design of a constitution. In giving the power, it does not intend to limit it to any one mode of exercising it, exclusive of all others. It must be obvious, (as has been already suggested,) that the means of carrying into effect the objects of a power may, nay, must be varied, in order to adapt themselves to the exigencies of the nation at different times.32 A mode efficacious and useful in one age, or under one posture of circumstances, may be wholly vain, or even mischievous at another time. Government presupposes the existence of a perpetual mutability in its own operations on those, who are its subjects; and a perpetual flexibility in adapting itself to their wants, their interests, their habits, their occupations, and their infirmities.33

[...] In considering this point, we should never forget, that it is a constitution we are expounding.

Professor Balkin had many more interesting and important things to say. And Adam Bonin will be touching upon those in other artlcles.

In addition, I'll be attending the Yale conference on Professor Balkin's book and will be providing dispatches. Stay tuned.

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Comment Preferences

    •  From the link (12+ / 0-)

      "Originalism in its various forms maintains (1) that some feature of the Constitution is fixed at the time of adoption, (2) that this fixed element cannot be altered except through subsequent amendment, and (3) that this fixed element
      matters for correct interpretation.6 Framework originalism argues that what is fixed is the basic constitutional framework. That framework consists of the original semantic meanings of the words in the text (including any generally
      recognized terms of art) and the adopters’ choice of rules, standards, and principles to limit, guide, and channel future constitutional construction."

      •  My formlulation of the idea (10+ / 0-)

        "My view is that a Living Constitution seeks to understand the original purpose of the Constitution, and its specific provisions, and discern how best to serve that purpose in the case then presented. I believe that the proper function of Constitutional interpretation does not entail reading the Constitution as one reads a statute - it requires more than a formalized reading of the text and search for specific findings of the original understanding of the specific text in question and the applicability to the case at hand. It requires a unifying approach, one that seeks to read the Constitution as a whole, harmonizing the component parts of the Constitution, the empowering provisions, the limiting provisions, the individual rights created and preserved. It requires understanding the purpose of the creation of a third coequal branch, the judicial branch, with the attendant common law judicial powers and restraints."

  •  I'll try to answer question about this (11+ / 0-)

    to the best ofmy ability.

    Prof. Balkin will not be joining us. Unfortunately, you only have me.

  •  Thanks Armando (7+ / 0-)

    Makes my brain hurt a little but I need that sometimes.

  •  Isn't the "tax" a central issue in the ACA? (5+ / 0-)

    Because it's termed a mandate rather than a tax, doesn't that cause problems? The Obama administration, if I'm not mistaken, has clearly taken the position that a mandate is somehow different that a tax.

    Problem or my own imaginings?

    •  It should not be a problem (16+ / 0-)

      As Professor Balkin explained, in describing the taxing power, the Constitution uses 5 different words at least , excise, impost, duty, tax and another that escapes me.

      The issue is did the Congress exercise its taxing power in enacting the mandate. It did. It did so by imposing a shared cost fee on person who do not have health insurance. The fee is $695 at its maximum. Of course, many people are exempt even from that.

      There is no other consequence to not having health insurance.

      The mandate itself is really only a method for determining whether a tax is applicable. There is no other enforcement mechanism.

      The main power exercised is in fact the taxing power.

      •  And yet both Congress and the Obama Admin (1+ / 0-)
        Recommended by:
        MrSandman

        studiously denied that this was true:

        Now what is the individual mandate? It's a tax! [...] [D]oes Congress have the power to tax? The test is whether the tax can be seen as promoting the general welfare. Of course it can. The . . . tax promotes the general welfare because you want to lower the insurance rate for everyone else and to avoid the death spiral of increasing insurance premiums if people wait until they are sick to buy insurance. [...]
        I am confident that Congress can do this under its Taxation power.  The question is whether it can do so under its Commerce power.  Citing the tax power rather than the Commerce power is what I hope that Kennedy will do in what I hope will do in his decision (supported by the mod-libs.)  But it's not, when you take everything Verrilli & Co. say as a whole, what the Administration is asking for.

        The Obama side of this debate is that it can exercise the Taxation power, pursuant to the Commerce power, through the Necessary and Proper Clause (which, admittedly, has been interpreted to include that which is not strictly necessary and barely asks whether it is proper.)  I have two questions about that.

        (1) Under that theory, could Congress implement a direct wealth tax after all under the Necessary & Proper clause?  That clause can apply to the Nineteenth Amendment too, if you can't make it work directly through the others.

        (2) Under that theory, could Congress implement the mandate under, say, the power to Regulate Land and Naval Forces?  How about under its power to borrow money?  (Actually, one could make a case that charging premiums is borrowing money from people to cover later expenses.)

        You might, I'm guessing, say "no, those are not related to the power in question."  And that's the real crux of the argument: does the power in question -- regulation of commerce -- include regulation of individuals who are not engaging in actions (such as growing wheat) relating to commerce.

        You asked in my previous diary on this topic, which I saw too late to respond to, why I was harping on this topic.  Simple: I think that you, and Obama, and Verrilli, and Balkin (to the extent that he agrees with your Commerce Clause analysis), are overconfident not only in the result but also on whether the public will understand it -- and I'm not interested in spending an election year where we are at risk in electing Mitt Romney in trying to get the Administration's questionable, abstruse, and even alarming analysis across to voters.

        "It's a tax," great.  Then read the Commerce justification out of the Act altogether, using constitutional avoidance, and defend it simply as an exercise of the Taxation power.  That's where I come down.

        Democrats must
        Earn the trust
        Of the 99% --
        That's our intent!

        "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

        by Seneca Doane on Sun Apr 22, 2012 at 04:24:49 PM PDT

        [ Parent ]

        •  Nah (0+ / 0-)

          Congress said it was using the taxation power. That's not in dispute.

          •  It used the taxation power for other parts (0+ / 0-)

            of PPACA.  Is that what you have in mind?  Its statement on whether it was using the taxation power and, if so, why it did not implicate the Anti-Injunction Act was completely muddled.  If that's the case, then why are they talking about the Commerce Clause + N&P Clause at all in discussing the mandate?  Why not make the straightforward Taxation Power argument?  And why all of the woefully inappropriate jabber at the time about how it's not a tax, no no no, but just a tax penalty?  Roberts already keyed in on the "it's a penalty but there won't be punishment for not following it."  Outside of the Dem bubble, this seems absurd.

            Democrats must
            Earn the trust
            Of the 99% --
            That's our intent!

            "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

            by Seneca Doane on Mon Apr 23, 2012 at 02:01:53 AM PDT

            [ Parent ]

            •  I didn't argue the case (1+ / 0-)
              Recommended by:
              Seneca Doane

              Why are you yelling at me?

              •  Haha (1+ / 0-)
                Recommended by:
                Armando

                PPACA and N&P are abbreviations, not all-caps ranting!

                Democrats must
                Earn the trust
                Of the 99% --
                That's our intent!

                "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                by Seneca Doane on Mon Apr 23, 2012 at 02:30:06 PM PDT

                [ Parent ]

              •  More seriously, what I want Dems to do (1+ / 0-)
                Recommended by:
                Armando

                is to prepare for a post-decision political environment that may be far worse than many imagine.  Many are putting stock in the idea that we're going to be able to paint the Supreme Court as acting here out of ideology if they strike down the mandate.  (I don't know why they think that that's such a plus, but that's what I hear.)  In fact, though, if the Supreme Court does knock it down (and worse, takes much or all of PPACA along with it), it may well be able to justify its decision in a way that will make sense to voters -- which undermines all of our criticism of the Court.

                That's what I see possibly coming in two months and that's why I'm exercised.

                Democrats must
                Earn the trust
                Of the 99% --
                That's our intent!

                "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                by Seneca Doane on Mon Apr 23, 2012 at 02:41:35 PM PDT

                [ Parent ]

        •  Thank you. If the guys fighting for this (2+ / 0-)
          Recommended by:
          Armando, Seneca Doane

          say it's not a tax, well, I kinda thought that was a problem.

          No one, absolutely no one, is arguing that Congress can't tax. But I ANAL and never will be except in the small letter kind . . .

          Do I think progressives need to lay claim to the constitution as a basis for policy? Absolutely. I love this country and I think we should take the constitution back. But this layperson doesn't see a slam dunk here.

    •  It's not a tax, it's a free loaf of bread (1+ / 0-)
      Recommended by:
      SoCalJayhawk

      The problem might be that the legislative history and perhaps even the legislative language itself suggests (or unequivocally states) that it's "not a tax, but a penalty."  The President was pretty emphatic about making that distinction.

      That appears to be the conservative and originalist response to the legal argument that it's a tax and is therefore the mandate is a constitutional exercise of Congressional power under the taxing clause.  I know one avid originalist who said, "If Congress had just simply called it a tax instead of a penalty, we wouldn't be having this discussion."  In other words, he was saying, "you're stuck in the commerce clause."

      I say, who cares what Congress called it.  Congress could call it a free loaf of bread, for all I care, but that doesn't make it a free loaf of bread.  In the same vein, calling it a penalty doesn't make it a penalty.  It is what it is.

      So answer to the legal question "Is it a tax (an therefor and exercise of Congress' taxing power)?" is not found in what we call "it" but in what "it" is.

      I can't answer that question here, but I reject the conservative-originalist response that what we happened to call it is dispositive.

      •  Congress expressly invoked (0+ / 0-)

        the Taxing Power.

        Forget what President Obama said, the power in question belongs to the Congress.

        •  Didn't the Solicitor General (1+ / 0-)
          Recommended by:
          Seneca Doane

          on behalf of the United States, in briefs and oral arguments to the SCOTUS, expressly reject that it is a tax?

          •  No (0+ / 0-)

            He said it was an exercise of the tax power

            •  ... to impose a penalty that was not itself a tax (1+ / 0-)
              Recommended by:
              arealniceguy

              and not a penalty for failing to pay a tax.

              I shudder when I contemplate explaining this to voters.

              Democrats must
              Earn the trust
              Of the 99% --
              That's our intent!

              "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

              by Seneca Doane on Sun Apr 22, 2012 at 05:44:24 PM PDT

              [ Parent ]

              •  Making a big deal about nothing (0+ / 0-)

                So you are worried how to explain this to voters.  Here's the short answer.  The government already admits that have no way to enforce the mandate.  So guess what, at this point it really is advisory.  

                Let's see how the exchanges go.  If they do succeed at lowering prices then we have a pretty good argument for an enforced tax on something that you failed to do ... ie, a mandate.

                "The real wealth of a nation consists of the contributions of its people and nature." -- Rianne Eisler

                by noofsh on Mon Apr 23, 2012 at 05:12:32 AM PDT

                [ Parent ]

                •  Oh, that makes us look just great (0+ / 0-)

                  Anyway, Roberts already shot that down.  It's preposterous.

                  Democrats must
                  Earn the trust
                  Of the 99% --
                  That's our intent!

                  "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                  by Seneca Doane on Mon Apr 23, 2012 at 02:31:02 PM PDT

                  [ Parent ]

            •  One specific problem is that it is not listed (1+ / 0-)
              Recommended by:
              arealniceguy

              within Title IX, Subtitle A of the Act ("Revenue Provisions," which includes other provisions that are explicitly justified under the Taxation power), because they have been trying the maintain the unnecessary argument that the penalties are not about raising revenue.  Congress did that, not just Obama.

              Democrats must
              Earn the trust
              Of the 99% --
              That's our intent!

              "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

              by Seneca Doane on Sun Apr 22, 2012 at 06:23:46 PM PDT

              [ Parent ]

              •  If the tax code was about raising revenueth (1+ / 0-)
                Recommended by:
                arealniceguy

                Then it would be about 2 pages long.

                But regardless, the ACA including the mandate does indeed raise revenue and one of its primary goals is to reduce the deficit. If the ACA works as planned to reduce the share of GDP spent on health care, and to free individuals from distorting their economic decisions with health insurance decisions, and then the economy as a whole would be freed from a major burden, which would lead to more innovation and growth and increase the tax base in the long term. Even if you don't accept that argument, it is at least possible that Congress could rationally conclude that the ACA including the mandate will increase revenue.

                •  What limitations, if any, do you see on (0+ / 0-)

                  the ability of government to enact tax measures not designed to raise revenue?

                  Democrats must
                  Earn the trust
                  Of the 99% --
                  That's our intent!

                  "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                  by Seneca Doane on Mon Apr 23, 2012 at 02:29:18 PM PDT

                  [ Parent ]

                  •  Only a few that are judicially enforceable (0+ / 0-)

                    The general welfare of the United States is a broad phrase, and

                    (1) The Constitution forbids capitation taxes, but authorizes income taxes. If the mandate did not exempt people below the filing threshold, then it would be the equivalent of a capitation tax, which would be unconstitutional. Whatever mandate-like tax penalty is imposed, it must be limited to the amount of income earned and not on accumulated wealth.

                    (2) The First Amendment would forbid the use of tax measures designed primarily to restrict speech or to aid/inhibit religion.

                    (3) The measure must not infringe upon traditional police power of the states. For instance, if Congress started using income tax penalties to punish behavior such as jaywalking on city streets, a truly local problem that states are competent to address.

                  •  There are other constraints too, (0+ / 0-)

                    such as that the taxes must be uniform throughout the United States, that the method of assessment and collection must respect due process, etc.

                    The general point is, though, that these limits come from actual portions of the Constitution. There is no need for the judiciary to usurp the will of the people as embodied in the supreme law of the land, and to begin imposing its own ideas of what is 'fair' policy and what is not.

                    The role of a judge is not to craft 'limiting principles' for their own sake. Judges have to craft tests and draw boundary lines when there is a conflict between two provisions. But there is no overarching uberlaw that demands that the role of the judge is to limit government when it gets 'too big' in his subjective view. The judiciary's role is to construe the document reasonably.

                    •  Could Congres impose its penalties under (0+ / 0-)

                      its power to create a Navy, coupled with the Necessary and Proper Clause?  (You know: "we need sailors, not having good health insurance means that people may become more sickly when growing up, leading to lower caliber sailors...").

                      Underlying that question is: must the subject of Congressional action under a certain part of the Constitution have anything to do with what that power addresses.

                      Once you grant that it does -- as I think you will -- then the question becomes whether the Taxation Clause power (which, because we have no capitation taxes, is limited to activities) and the Commerce Clause power (which has heretofore been limited, as applied to natural persons, to engagement in activity) can apply to the refusal to act.  That is, does it fit within the right domain.

                      That's a question that I would describe as requiring a "limiting principle": how slippery is this new slope onto which PPACA would have us stand?  You're asserting that judges can only want to see a "limiting principle" here in bad faith; that's untrue.  In fact, they are trying to interpret the document, comparing an interpretation that says "sure, inactivity is fair game" (as it is with the power to raise an Army, where refusing to accept the draft can be made illegal) in this new context with one that says "no, that can't be what the document intends, because it leads to absurd results -- i.e., "the slippery slope."

                      You think that it's the Supreme Court that will look silly or venal if they decide that they can decide that through its Commercial regulation of inactivity PPACA means such a great expansion of federal power that it cannot be what the Framers intended.  I tend to think that, as it stands, they'll look fine.  I may not agree with them, but as opposed to Citizens United, they wont' look like they're crazy/evil.

                      Democrats must
                      Earn the trust
                      Of the 99% --
                      That's our intent!

                      "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                      by Seneca Doane on Mon Apr 23, 2012 at 05:54:18 PM PDT

                      [ Parent ]

                      •  Your points help to demonstrate (0+ / 0-)

                        that this is really an income tax case. The Framers of the Constitution did not intend for the federal government to be able to compel all citizens to pay part of their income to the federal treasury. But, they did intend for the People to be able to amend the document. The Sixteenth Amendment authorizes Congress to tax income from whatever source derived.

                        The mandate itself does NOT regulate 'inactivity,' any more than the home mortgage interest deduction or the child tax credit regulates inactivity. A completely inactive person is not subject to the mandate. Only persons who earn income above a certain threshold (such that they are able to afford it) are subject to the additional income tax levy.

                        Scenario A: Could Congress raise income taxes on everyone by $7,500 (with full enforcement mechanisms including imprisonment and seizure of property for nonpayment) and exempt everyone with minimum health insurance coverage from paying that additional levy? Yes. The constitutionality of this measure would be unquestionable.

                        Scenario B: Can Congress impose an income tax penalty of $750 (without any additional enforcement mechanisms) on individuals who do not obtain minimum coverage? That is the question here. The individual and the federal government are in the exact same positions, except that Congress has used a different word and has employed an even less coercive measure. The individual here faces the same three choices: earn no income, earn income and pay the higher tax bill, or earn income and obtain minimum coverage.

                        There is no principled reason why Scenario A should not be subject to the same "limiting principle" analysis as Scenario B. The need for such a limit would be just as acute in the first. The class of persons affected is identical: people earning income. In fact, the scope of government power and the intrusion on personal liberty would be even greater in the first situation.

                        This is NOT an expansion of federal power in any real sense. This is only the same power taking a slightly different and less coercive form. The question is whether its formal change somehow invalidates it as a constitutional matter.

                        Absolutely, it will be dishonest when the Court strikes down this act of Congress on the pretext that it has gone 'too far' and made an 'unprecedented expansion of federal power' and 'changed the relationship between citizens and government.' What the opinion will mean, in all honesty, is that Congress did not go far enough. It unquestionably had the power to accomplish exactly what it did and then some. But, because Congress didn't go quite as far, the Court somehow interprets that as going too far. The entire argument is self-refuting.

                      •  Also, I must correct you on another point (0+ / 0-)

                        "whether the Taxation Clause power (which, because we have no capitation taxes, is limited to activities) ... can apply to the refusal to act."

                        Two things: One, capitation taxes are allowed as long as they are levied in proportion to the census.

                        Two, you're equivocating two meanings of what it means to be a "tax on" something. The ACA income tax penalty is NOT a tax ON people. The levy is ON income that people earn.

            •  You're right (1+ / 0-)
              Recommended by:
              Armando

              Here's the exchange:

              "SG Verrilli: [...] the minimum coverage provision of the Affordable Care Act is an exercise of Congress’s taxing power as well as its commerce power.

              Congress has authority under the taxing power to enact a measure not labeled as a tax, and it did so when it put section 5000A into the Internal Revenue Code.

              More here:

              Transcript: SCOTUS Affordable Care Act oral argument of Solicitor General Donald Verrilli

              So sounds like he was arguing that Congress was exercising its taxing power while not calling it a tax, but Congress' decision not to call it a tax means it is not subject to the Anti-Injunction Act.  Is that your take?

              •  That's not my take, but it is Verrilli's! (0+ / 0-)

                It's a PR disaster.  Look at how much Republicans can do with nothing.  Now image what they'll be able to do with something!

                Democrats must
                Earn the trust
                Of the 99% --
                That's our intent!

                "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                by Seneca Doane on Mon Apr 23, 2012 at 01:45:52 AM PDT

                [ Parent ]

              •  When before now has it enacted a measure under (0+ / 0-)

                the Taxation Power that operated as a de facto tax, yet was not under the Anti-Injunction Act, and yet was pursuant to enforcement of an act established under a separate federal power?  I have to explain this stuff to voters!  How does it look like anything other than having one's cake and eating it too?

                Democrats must
                Earn the trust
                Of the 99% --
                That's our intent!

                "I love this goddamn country, and we're going to take it back." -- Saul Alinsky OCcupy!

                by Seneca Doane on Mon Apr 23, 2012 at 01:52:38 AM PDT

                [ Parent ]

                •  You're mad at Verilli (0+ / 0-)

                  and you take out on me and Balkin?

                •  The only thing you have to explain to voters (0+ / 0-)

                  is the justification for "forcing people to buy health insurance." That's the sticking point for the low-information, non-legalese voter, I've found.  And I don't mean the Constitutional justification.  I mean the moral and practical justification.

                  I've had the most luck persuading folks by explaining how it's necessary to make something they do like -- the pre-existing conditions provision -- work.  Sometimes I even sound like Romney defending the individual mandate.  Once they buy into that, the nuanced legal issues of the taxing and commerce clauses is of no interest to them.

              •  that's what he argued (0+ / 0-)
  •  meh. whether ACA is constitutional or not . . . (6+ / 0-)

    mandates are still a stupid Republican idea, and adopting it as their own was the dumbest thing the Dems ever did.

    Best case scenario, in my view, is if the Court rules that the mandates are thrown out, but the rest of the bill's provisions stay intact. Let the insurance companies cry all they want.

    •  Well (7+ / 0-)

      Meh to some I suppose.

      I think the constitutional interpretation discussed in my post is extremely important.

      Others, like you, disagree.

    •  I just don't see how that's a best case scenario. (5+ / 0-)

      And saying this is not at all dependent on liking the mandate (though I happen to think that the ACA is a mediocre piece of legislation that is nonetheless better than the status quo ante).

      The only way that the mandate gets thrown out is if the SCOTUS makes a wildly implausible case for its constitutionality.

      This wildly implausible case will either:

      1) In Bush v. Gore fashion be applied only to this particularly case, in which it will make a mockery of the very idea of judicial review. This is not a good thing.

      2) Will later be used to invalidate much of what's left of the legacy of the New Deal and Great Society. This is an even worse thing.

      Oklahoma: State Government So Small It Fits In Your Vagina!

      by GreenSooner on Sun Apr 22, 2012 at 10:25:27 AM PDT

      [ Parent ]

    •  I will take the ACA, with the mandate (4+ / 0-)

      over no ACA. IMO we have no prospect of getting a better piece of legislation, anytime soon. And there are worse alternatives being discussed over on the Republican side (their main idea being "just give 'em vouchers," which basically caps the cost of healthcare for government, but not for consumers).

      •  When I read comments like yours (2+ / 0-)
        Recommended by:
        Armando, arealniceguy

        I assume the writer has a lack of understanding the financial picture of health care financing crisis in the U.S. The cost of our system that's being driven up by private health insurance financing is not sustainable.

        Part of the problem with this site is that too many here speak like they are politicians rather than just thinking about the problems and solutions as problems and solutions. The problem going into 2008 with health care was that cost was a crisis. The problem going forward is that cost remains a crisis. ACA does nothing to change either the speed or direction of the cost crisis.

        We know from Romney care what the future of the President's plan will look like by  looking at the problems MA is facing. We know from the failure of right wing ideas that undergirds the assumptions of his plan that the policies ultimately are likely to fail.

        The legislation hardly matters except as a short termism.

        Our present health insurance finance system is not sustainable. It will lead to further crisis.

        Just as Clinton's deregulation policies (Clinton choose deregulation and Obama has chosen public -private hybrid ideas) helped form the foundation for crisis in 2008 along with the GOP. He did that for all t he right reasons too. He felt that by changing the rules he could have black people to buy homes. It also open the door to wide scale speculation. The result- wide scale  abuse of black homeowners with some of the highest foreclosure rates.

        The problem with the mandates goes beyond their consitutionality. Its that it locks Americans into a system that is heading over a cliff.

        When you think about some of the arguments this becomes clear. For example, the argument that we should not have public health because it economically will chase the higher cost of private health care out of business should indicate how much money we waste rather than indicate a reason not to engage in cost savings through public plans.

        That was and remains the only options available for real reform.

        You are just delaying the crisis until obama is out of office, and will likely try to pin what will then be a bipartisan crisis onto who ever is in office then.

        My problem with these economic crisis is that they continue to damage the American public with each one that happens

        So, see you in the 2020s when the crap hits the fan again- this time with health care.

        •  Ok, but you are probably not facing no insurance (2+ / 0-)
          Recommended by:
          Armando, arealniceguy

          coverage in the near future. I am, if ACA is thrown out. I am. And re Massachusetts, as I understand it they have 95+% of the population with insurance coverage. I do not count that as a failure. Long term I agree inflation both in heatlhcare costs and insurance is a huge problem and ACA only starts to address that. But it does address some of the worst abuses of private insurance coverage pre-ACA and it does contain cost reduction initiatives.

          •  I have never had insurance. ever. (1+ / 0-)
            Recommended by:
            arealniceguy

            When ACA was passed, I looked up (1) what the subsidy was that I would get with the income level I had at the time, and (2) what the cost was for health insurance policies.

            What I found was that the subsidy was only enough for me to get a shitty high-deductible policy that still left me quite unable to afford to see a doctor when I needed one. So ACA's mandates didn't do jackshit for me, or for anyone like me.

            ACA did have some good raisins in it, such as protection for pre-existing conditions and coverage for kids till they're 26. Unfortunately those raisins came embedded inside a big shit muffin--the mandates.

            I am hoping the court throws away the shit muffin, and keeps the raisins.

            •  I hope you realize, you won't get that? (1+ / 0-)
              Recommended by:
              arealniceguy

              If the mandate is struck down, the Obama administration is actually asking the court to also sever the ban on preexisting conditions, as well as the provision related to a minimum medical loss ratio for insurers. If the court removes the mandate and does not also remove those provisions IMO it is likely Congress will do so. Without the mandate but with these other provisions in effect, insurers would get a flood of new customers, all of whom were sick, instead of what they were promised, namely, a flood of new customers, only some of whom were sick. As well as the requirement to cut their administrative costs. And they cannot support that, with greatly raising premiums, however much we might wish that they would do so.

          •  ACA makes it worst to solve the cost crisis (2+ / 0-)
            Recommended by:
            wsexson, arealniceguy

            It creates the illusion of having done something when the right thing was not done.

            As such, people will ignore the crisis (at least on the Democratic side) because Obamacare will be declared a solution and will need to be given time to work. The general public will be too busy either in denial about the crisis being a crisis or confused by it or looking to pols to solve it.

            On the GOP side, I expect they will quietly accept the few good points as their own, ignore all the bad, and try to move it further right once they are in office. So we end up with an assumption (that the market here works when it doesn't) being reinforced by both sides for different reasons.

            The outcome being that you traded a few good things for a potential systemic failure.

        •  There's bruh! (1+ / 0-)
          Recommended by:
          arealniceguy

          I think you make some good points.

          That said, my post is on constitutional interpretation.

          •  On the Constitutional point, I see it as (2+ / 0-)
            Recommended by:
            Armando, arealniceguy

            taking bad faith actors as serious about the things they are saying.

            Scalia and Co are bad faith actors. They are more than willing to jump ship as I remember on their judicial philosophy when it suits some end they are trying to achieve. It just so happens that some of these judicial views are more suitable to the outcomes they already want than others.

            That may not be true of a Kennedy, and it was likely not as hard line as with OConnor, but it seems with the the present court many o f the newer right wing picks were chosen for certainty of how they would rule. Not how they got to the ruling that the right wanted to have them make.

            I think you said as much on Kelo about Scalia right?

            I admit I tend to get lost in all t his debate about the specifics of their judicial philosophy because I don't think they believe what they are saying in the first place.

            I don't see why we can't just say they are full of crap, and start from there.

  •  Health care mandate = privatization of Social Sec. (9+ / 0-)

    It is surprising that more liberals are not opposed to the issue of mandated purchase of Wall St products in lieu of health care.

    Applied to Social Security and Medicare, if the Supreme Court does not strike down this provision, Social Security and Medicare will be next to be privatized in this way.

    Health care needs to be reformed to match Social Security not a road map for the privatization of health care.

    •  amen (6+ / 0-)

      Some of us have been here long enough to remember when ACA became official Dem Party policy, and like Stalinists, most of us dutifully switched overnight from "kill the bill !" to "purity trolls !"  It was surreal.

      •  I oppose the mandate (14+ / 0-)

        I believe it is unquestionably constitutional.

        I opposed the Bush tax cuts, the Iraq  war, the bankruptcy reform bill, and any other number of pieces of legislation.

        But they are all constitutional.

        •  Q. "What does the Constitution mean?" (5+ / 0-)

          A. "Whatever the Supreme Court SAYS it means."

          ;)

        •  Clearly mandate is questionable or no case. (1+ / 0-)
          Recommended by:
          arealniceguy

          "I believe it is unquestionably constitutional."

          Clearly you are wrong since we have a major case in front of the Supreme Court questioning the mandate.

          We have had several Federal judges question is already.

          Even if current judges do approve Federal government requiring citizens to buy worthless Wall St products the question, like other civil rights, can come up again and win in more liberal court.

          We have to elect presidents who will nominate judges who will rule against Wall St and in favor of health care.

        •  mandate=horrible anti-freedom policy (2+ / 0-)
          Recommended by:
          Armando, RUSiriusA

          Can't Wrap Mind Around Constitutionality of ACA

          I just can't accept the conclusion that forcing people to buy a product from the for-profit insurance corporations is constitutional.

          Taxing the taxpaying citizenry to pay for government services seems perfectly fine, e.g. SS/Medicare taxes.  However, to force young, healthy and probably low-paid workers to purchase an expensive product priced to generate individual wealth for private citizens, a product they probably won't use, in order to subsidize the healthcare costs of less healthy individuals is... simply unfathomable to me. I believe the models assume these healthy individuals will pay for the insurance but won't use it or need it.  If it was a tax everyone paid, and everyone got great govt funded care (i.e. public option) then sure, make everyone pay.

          And I'm not a young so-called freeloader.  50-something female lucky enough to always have had employer paid health insurance, and good insurance at that. I also have grown sons staying on parents' plan only because ACA mandates same.

          But I'm still against it and just can't understand how it's constitutional, even under federal powers related to promoting the general welfare and the commerce clause.  Even after reading the legal analysis, I don't get it.  I guess I just have a blind spot.

          •  whether it is constitutional or not, it remains (4+ / 0-)

            a really stupid idea, one that moves the Dems firmly away from their decades-long position that health care is a RIGHT and it's the government's responsibility to provide it for all its citizens--and instead treats health care as just another product to be sold, like soap flakes or lawn fertilizer. It's a giant step backwards for the Dem party--or more accurately a giant step towards making the Dem party the new Republican party.

            Solving the problem of health care access by forcing everyone to buy insurance is like solving the homeless problem by forcing everyone to buy a house.  It's idiotic.

          •  Despite your intuitions (1+ / 0-)
            Recommended by:
            i love san fran

            And feelings that the policy is somehow unwise and unfair, you must realize that nothing you just said relates to constitutionality. Congress can pass stupid and unfair laws all it likes without exceeding its constitutional powers.

            There are three basic legal arguments against the mandate, none of which rests on any firm constitutional footing.

            First, you could say that there is an individual zone of economic liberty, perhaps hidden in the Tenth Amendmen, which prevents Congress from using income tax penalties to encourage behavior.

            Second, you could say that, even though there is no personal constitutional liberty interest at stake, the individual mandate somehow offends state sovereignty. Essentially, you would have to argue that the problem regulated by the mandate is truly local rather than truly national.

            Third, you could say that there is an unstated principle embedded in Article I of the Constitution that the federal government can never regulate inactivity.

            What is common to all three arguments is that none of them are grounded in the actual Constitution. Each is built on a circular modustollens type argument that presumes without justification that the particular policy just can't be valid.

            •  I understand it's not a policy issue but (0+ / 0-)

              a constitutional issue. I am a lawyer, a criminal defense attorney/public defender to be precise, so my job is to fight for the constitution as it applies to each individual defendant.

              I can't say feeling perplexed about constitutional interpretations is new to me considering the way the Court likes to slice, dice, and shred the 4th, 5th, and to a lesser extent, the 6th amendments.

              We shall see what they do.

              •  But, what is your constitutional argument for why (0+ / 0-)

                the ACA tax mandate would be unconstitutional? Specifically, what portions of the Constitution lead you to the conclusion that such a means of a addressing a problem would be forbidden?

                Your argument resembles Justice Kennedy's argument, which was founded upon an intuition rather than upon expounding any part of the Constitution.

    •  No it isn't. (5+ / 0-)

      Privatization of Social Security and Medicare are privatization of Social Security and Medicare.

      Both are incredibly bad ideas.

      Neither of them is unconstitutional, however.

      The Constitution is not designed to prevent all stupid and/or harmful governmental decisions.

      Oklahoma: State Government So Small It Fits In Your Vagina!

      by GreenSooner on Sun Apr 22, 2012 at 10:27:23 AM PDT

      [ Parent ]

    •  Here again (9+ / 0-)

      you confuse policy preference with what the Constitution permits.

      I must admit it is frustrating to me.

      •  I think most people do. (2+ / 0-)
        Recommended by:
        Armando, Egalitare

        I'd be willing to bet that, oh, 70% of the people simply see the Supreme Court as an enigmatic second bite at the apple in terms of opposing controversial (or, at times, uncontroversial) legislation.

        "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

        by auron renouille on Sun Apr 22, 2012 at 11:24:30 AM PDT

        [ Parent ]

      •  I dare to dream. (0+ / 0-)

        Some day laymen will grasp the difference between policy issues and constitutionality issues, and on that day I will weep for joy, because a good third of People Who Are Wrong on the Internet will be silenced.

        ...or at least they'll switch to arguing passionately about which "Star Wars" movie was the best.

        ‎"Our greatest asset as advocates is a deep cognizance of our own ignorance, plus a willingness to do something about it." -Joseph Mitchell Kaye, 1966.

        by JR on Sun Apr 22, 2012 at 01:47:53 PM PDT

        [ Parent ]

  •  I'm a bit curious though . . under the wingnut (9+ / 0-)

    interpretation of "originalism", would not the "right to bear arms" referred to in the Second Amendment only refer to the possession of muzzle-loading muskets?

  •  Strict Constructionism is like Obscenity... (9+ / 0-)

    ...its really in the mind of the beholder.

    The Justices on the Supreme Court always merely vote their gut no matter what the case, then dig around in the law and case precedent to find excuses for the position they took.

    "The best lack all conviction, while the worst
    Are full of passionate intensity." --W. B. Yeats

    by Pragmatus on Sun Apr 22, 2012 at 10:18:25 AM PDT

  •  The Constitution was created in order to (8+ / 0-)

    create a strong central government, replacing the weak and hopeless Articles of Confederation.  This is obvious from a reading of Gibbons v. Ogden (1824).  In Wickard v. Filburn (1942), Justice Robert Jackson reached back to Gibbons v. Ogden to uphold federal authority over the regulation of interstate commerce, even over a farmer who claimed that none of his produce crossed state lines, on the grounds that every farmer growing something affects the national price of that commodity.

    This is true originalism, not the crap that confuses the Constittution with the Articles of Confederation.

    "We have always known that heedless self-interest was bad morals, now we know that it is bad economics." Franklin Delano Roosevelt, Jan. 20, 1937

    by Navy Vet Terp on Sun Apr 22, 2012 at 10:21:10 AM PDT

  •  Its just a schematic (4+ / 0-)

    But it gets taken for a blueprint, or worse yet, like a theological text.

    We always have a lovely tym, at doggerel-by-the-yard.rym

    by greatferm on Sun Apr 22, 2012 at 10:29:05 AM PDT

  •  Originalism, as usually practiced, is idiocy. (2+ / 0-)
    Recommended by:
    Armando, Joieau

    But it's political powerful idiocy.

    It's very important for progressives to come up with a form of constitutional hermeneutics that can help push back against the reigning wingnut nonsense that is originalism / intentionalism.

    If Balkin's view is politically effective, that would be good enough for me, at least in the political arena.

    Then again, IANAL.

    Oklahoma: State Government So Small It Fits In Your Vagina!

    by GreenSooner on Sun Apr 22, 2012 at 10:29:37 AM PDT

  •  Great diary, great linked piece (6+ / 0-)

    I haven't read the entire forum, but there's one thing that has been bugging me pretty much forever, and your citation of McCullogh helped with it, but not enough.  How is it the the "necessary and proper" clause doesn't cover anything Congress wants to do as long as the general topic for the "anything" is in the Constitution?  I have difficulty teaching the idea that the clause and the Tenth Amendment aren't in conflict with each other.

    Thanks, Armando.  Obviously tipped and recced.

    -7.75, -8.10; All it takes is security in your own civil rights to make you complacent.

    by Dave in Northridge on Sun Apr 22, 2012 at 10:30:29 AM PDT

  •  Does Balkin's formulation answer Kennedy's ask (3+ / 0-)

    for a limiting test on commerce clause exercise of power?

    It seems that Balkin derives the ends — regulating the health insurance industry to cover more people — from the commerce clause, and he gets the means — the mandate — from taxation power.

    Government and laws are the agreement we all make to secure everyone's freedom.

    by Simplify on Sun Apr 22, 2012 at 10:35:36 AM PDT

  •  Interesting read. (4+ / 0-)
    Recommended by:
    Armando, Loozerio, drewfromct, Joieau

    I look forward to checking out the book.

    I have to admit, I'm uncomfortable with trying to claim "originalism" as progressive or liberal, and not because it seems like a hopeless argument (you might win over some centrists, but forget about the conservatives).

    My question is, respectfully, what is the point? Should we really be competing with one another over who is more "true" to the framers' intentions? Or should we have the courage to free ourselves from the trappings of the past, and create a society that is transformative and just?

    The master's tools will never dismantle the master's house, as Audre Lorde said. For all its value, the Constitution represents an attempt by the framers to secure elite control over the country and its resources, and build a military to secure those resources and force our way into new "markets." While it protects some individual liberties, those protections were only intended for about 25% of the population. If we're talking original intent, why don't we talk about that?

    The framers were intelligent people. They were also white supremacists and male supremacists. They also, for the most part, feared democracy and distrusted the majority of the population ("the country should be governed by the people who own it," said John Jay).

    I'm not going to be chained to the thinking and ideas of the past, particularly those rooted in domination and colonialism. Why should any of us, especially when there are so many brilliant people with ideas far more inspiring and transformative for the 21st century?

    Never be deceived that the rich will permit you to vote away their wealth. - Lucy Parsons

    by cruz on Sun Apr 22, 2012 at 10:46:00 AM PDT

    •  I think we have to for the reason Balkin states (8+ / 0-)
      Liberals have a problem with the idea of constitutional fidelity. That is they think that what it means to be faithful to the Constitution is captured by the way originalists talk and as a result too many have been too eager to jettison the history of the Constitution. They don't want to talk about the text of the Constitution or to make arguments from structure. Instead they want to make arguments from their favorite cases from the Warren Court era and the Burger Court era. [...] It seems to me that is a bad idea because American constitutional culture emphasizes (1) the centrality of the text; (2) that we have a written constitution; (3) emphasizes our connection to the American project over the whole course of our history and (4) is interested in the idea of what the Founders thought.

      When liberals shy away from [originalism] because they think that's what conservatives do, they basically fight over the meaning of the Constitution with one hand tied behind their back. [...] What's in it for liberals [to fight for Living Originalism]? It allows them to claim that the Constitution belongs to you. It's not something that just belongs to people who dress up in tricorner hats and appear at Tea Party rallies. When you assume it belongs only to conservatives, you then have to say 'oh guys aren't you silly. don't you know we are all past that now.' That's just the wrong way of thinking about your relationship to the Constitution. Liberals have to reclaim the Constitution as their Constitution. To do that, they have to say, it's my text, it's my tradition, it's my connection to the [Founders.] It's my structure of government [the Constitution] that promotes what I think it is right.

      •  Thanks for this diary, very informative (2+ / 0-)
        Recommended by:
        Armando, Joieau

        It was very educational for me and it gives us much food for thought and discussion.

        Follow PA Keystone Liberals on Twitter: @KeystoneLibs

        by wishingwell on Sun Apr 22, 2012 at 11:09:51 AM PDT

        [ Parent ]

      •  I understand his and your point. (4+ / 0-)
        Recommended by:
        Armando, Loozerio, ozsea1, Nisi Prius

        But it's not my text and it's not my tradition. I'm working class. have no connection to the founders. It isn't the structure of government I would design if I could. It doesn't promote what I think is right; people promote what is right, and the best of us don't need a 200 year-old document to tell us whether we can fight for it or not. Indeed, our fight happens in spite of the Constitution, not because of it.

        What is more, for the vast majority of the people rendered invisible by the framers' document and ideology (people of color, indigenous people, working people, the poor, etc. - the very same people who are invisible today, despite this glorious document), the Constitution doesn't mean very much. This is, frankly, a conversation for privileged people.

        With respect, I'm over it. We have a government that is impossible to reform. We have a president - a Democrat, and a constitutional scholar - who is by most reasonable accounts worse than his predecessor on civil liberties, due process, and individual freedoms (areas where our constitution is supposed to excel). We have a Republican challenger who sought out the endorsement of a confessed pedophile and warmonger who shit and pissed himself to avoid going to war. And we have a government that is a wholly owned subsidiary of big business. I guess I'm missing how moving in this direction of progressive originalism will change any of this.

        Again, it's a good diary and an interesting academic topic. But I think we're so far past this discussion given the realities we face.

        Never be deceived that the rich will permit you to vote away their wealth. - Lucy Parsons

        by cruz on Sun Apr 22, 2012 at 11:45:02 AM PDT

        [ Parent ]

    •  Is it wise to worship the past? (0+ / 0-)

      Of course many wonderful ideas were developed in the past, but does that mean that we should continue to worship them?  In fact, our government needs improvement that will make it more democratic and fair.  We also need to end things like lifetime jobs for judges on the Supreme Court.  And remember Bush v. Gore?  How dumb was that?  Let's stop our constant bragging  and make this a better place for everyone.  And while we're at it, let's take a close look at the entire judicial system and make it better.

  •  Conservatives are winning (7+ / 0-)

    All I know is that if liberals don't fight for their vision of this country, they are going to lose it to conservatives that will.

    •  We need less theology (6+ / 0-)

      The original shipbuilders intended to build a state-of-the-art ship.

      They rigged her as best they could in 1789.

      But to say that they never intended that there never be any changes in the rigging to respond to advances in the arts and sciences ?

      Keep the hull sound and intact, yes, there are some principles which never change, and some problems, like slavery, could not be solved right away and had to be deferred, but maintaining the purity of the original rigging would, I think, have been viewed by these enlightened products of the Enlightenment as insane.

      Less theology, more enlightenment

      We always have a lovely tym, at doggerel-by-the-yard.rym

      by greatferm on Sun Apr 22, 2012 at 11:01:16 AM PDT

      [ Parent ]

      •  I had a student who told me that (1+ / 0-)
        Recommended by:
        ozsea1

        the Enlightenment hadn't reached his street yet.  That might be true of a lot of places in the U.S.A.  It's why we need very good people to run for office and we need to make some logical changes in the Constitution, things like not electing someone President when they have less popular votes than their opponent has.

  •  No more questions? (6+ / 0-)

    Everyone convinced?

    Terrific.

    Proving yet again I am right about everything.

    Have a nice day everyone.

  •  Nice. (3+ / 0-)
    Recommended by:
    Armando, Loozerio, ozsea1

    From your Abortion and Original Meaning link:

    That is, they (originalists) confuse original meaning with original expected application.

    Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of text and principle. This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment their application and implementation can.

    That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees  It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudgingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.

    Nice.

    And with regards to the conference you are pointing to, I liked that:

    In addition to covering the latest debates about constitutional interpretation, the conference is the first of its kind to focus on the role that journalists, mass media, and the Internet play in shaping Americans’ attitudes about the Constitution and its interpretation. It includes panels of prominent constitutional scholars and journalists who cover constitutional issues.
    But I didn't know what do you referred to in your interview with Prof. Balkin when you talked about this "whole ball and strikes nonsense"? Don't know what this is.

    And finally you said in one comment:

    I do not even know what the link says but I'd like ot hear your descriptions.
    which made me smile. Good to know that you have the same requests we lay persons have with regards to your links.. :)

    Well, I usually don't even try to read your lawyerish language, as it's hopelessly over my head, but I recognized  a couple of thoughts that made sense to me  and that was pretty nice. Thanks for the diary.

  •  Scalia's Great Fraud (7+ / 0-)

    Scalia claims "original intent" without any acknowledgment of his own biases at work in his conclusions.  

    This is what makes conservatism such a fraud.  

    Conservatives claim that their perception of the intent of the Constitution is "objective," but liberals read into their own biases and subjectivities.  

    As the Founders knew, EVERYONE brings subjective opinion to the often vague and incredibly broad language of the Constitution.

    How the @#$@ is there a single precise meaning to be drawn from " make no law respecting the establishment of religion" if Congress gives a tax break to a Church??!?   OBVIOUSLY opinion comes into play.

    The reason we pay JUDGES to rule is because their judgment, critical thinking skills, edutation in the law, ad experience, make them qualified to make these determinations.

    To answer the fraud Scalia, there is no "original intent" unless you are a mind-reader and can conjure up the spirits of the dead.  

    There is, however, the spirit of the law, backed by critical arguments, facts, and evidence, which lead to conclusions.

    Liberals understand this bias is always present, and work to seek a greater truth.

    Conservatives pretend their bias isn't a bias at all.

    Which is in the real spirit of Constitutional reading, and which is a total fraud?  The answer is obvious.

  •  thats what i never understood about (2+ / 0-)
    Recommended by:
    Armando, drewfromct

    the government,s strategy in defending the individual mandate. Like the professor says, they should have just argued that it was a tax hike with a corresponding credit to those who purchase health insurance. Nobody will get thrown in jail if they don't have health insurance, they will simply pay higher taxes, the same way that those who drink, smoke, rent, don't have solar panels, or haven't bought an electric vehicle. It's spot on.

    Why the government went the commerce clause route (especially with this USSC), is a mystery. I almost think they wanted the individual mandate to be struck.

    •  the mandate (0+ / 0-)

      Is a trojan horse. If allowed to stand as precedent, it will herald the end of every non profit gov't.-provided social service, with all of them replaced by a tsunami of more mandates to buy everything we need from for-profit corporations. Social Security will be scrapped in favor of a mandate to buy 401ks from guys who make Bernie Madoff look honest.

      Al Qeada is a faith-based initiative.

      by drewfromct on Sun Apr 22, 2012 at 12:04:05 PM PDT

      [ Parent ]

      •  doubtful (0+ / 0-)

        in fact, you won't see the mandate being enforced until the exchanges actually prove effective at lowering prices.  

        "The real wealth of a nation consists of the contributions of its people and nature." -- Rianne Eisler

        by noofsh on Mon Apr 23, 2012 at 05:14:58 AM PDT

        [ Parent ]

  •  WHAT if each clause of each law, regulation, ... (1+ / 0-)
    Recommended by:
    Armando

    blah blah name of the week

    was hyperlinked to a spreadsheet of who gets charged / gets to pay for the clause, and where does the money go?

    For example - I kind of ballparked that it costs me about 25 cents an hour of my 2080 hours a year to pay for Seattle Public Libraries. When ALL of us pay 25 cents an hour, then ALL of us can travel anywhere in the u.s. and use the local library, cuz, everyone has local libraries!

    Wow!

    WHAT do foodstamps cost me per hour? I'll tell you what it would cost me to have STARVING people lined up outside my local grocery stores - bullets? an armored car? private guards? a hell of a LOT more than foodstamps !!

    WHAT do Supreme Court decisions cost me?

    Certainly progressive legislation that requires a 40 hour work week costs money ... and what are the costs of working everyone into the ground, like they do in Somalia or Nigeria or __Fill In The Blank __?

    Tallying up costs, calendar year by calendar year, would probably show that the "conservatives" consistently allow BP and EXXON and Haliburton and Boeing and AHIP and PHARMA and AIG and Merrill and LEhman and BOA and CHASE and ... to use government power to extract MY money from my wallet -

    so a bunch of rich f'king pig$ on top can stay on top and can be pig$.

    Now, if we the peee-ons are servile enough to accept those facts - if we think it is kool for bill gates to jet around slurping caviar while we break our asses in the traces until we break down and are broken down and cast aside - then we the pee-ons DESERVE it.

    I don't think most of us know what we've 'agreed' to ...

    Given the technology of the day, the Magna Carta had to be written on something that would last, and it had to be brief. Even post Gutenberg there were technological limitations to including every committee meeting and every memo and every hall way conversation which went into each clause of each law and each regulation ...

    and nowadays ... what are the LEGITIMATE reasons for the decision making to be hidden, and, what are the LEGITIMATE reasons that the costs get dumped on the serfs so the aristocrats can have their pyramids, pyramid schemes and ponzi schemes?

    rmm.

    Yond Cassius has a lean and hungry look; He thinks too much: such men are dangerous

    by seabos84 on Sun Apr 22, 2012 at 11:43:26 AM PDT

  •  Thanks, Armando. A fascinating (1+ / 0-)
    Recommended by:
    Armando

    read.  I look forward to reading Balkin - and to your dispatches from Yale.

    Ultimately, the only thing that matters with respect to preserving choice is who will be nominating the next Supreme Court Justices.

    by Its the Supreme Court Stupid on Sun Apr 22, 2012 at 11:48:32 AM PDT

  •  I live about ten miles from Yale University, (1+ / 0-)
    Recommended by:
    Armando

    but not in New Haven.  I wonder if this is open to the public.  Some of their discussions are.

  •  This from Chief Justice Story.. (1+ / 0-)
    Recommended by:
    Armando
    It must be obvious, (as has been already suggested,) that the means of carrying into effect the objects of a power may, nay, must be varied, in order to adapt themselves to the exigencies of the nation at different times.
    provides (for me at least) a reasonable and effective  umbrella  of understanding and general paradigm of constutional interpretation. It is simple yet profound.
  •  Sounds like we lost this argument (1+ / 0-)
    Recommended by:
    Armando

    and now want to figure out a way to glom our theories of a "living constitution" onto the "originalism" that currently holds sway at the SCOTUS and throughout much of the judiciary. "Living originalism" seems to be an oxymoron. As many of the comments above elucidate, liberals and progressives generally don't care what a bunch of rich, white slaveowners meant when they wrote the Constitution 200+ years ago. I don't see the point in disingenuously pretending to care. If the result is the same, then it's just new window dressing on the same old theory that says that the Constitution says whatever we want it say.

    I do think that he's correct re ACA however. Forget the Commerce Clause; if it's a tax, then it's constitutional, and for all intents and purposes it is a tax. The only problem is that the Obama Administration argued all throughout the legislative history that it wasn't a tax, and even went into court on the first day and argued that it wasn't a tax (on the procedural question).

    •  That's how it sounds to you? (0+ / 0-)

      I think your ear is off.

      Your sentence "Living originalism" seems an oxymoron can only be true to someone who has bought the conservative bill of goods on what the Constitution did.

      I think you are wrong, and I think Balkin and I both demonstrate that you are wrong.

      You offer noting in the way of substantive rebuttal to the analysis.

      Do you have any? If you want to look for some, the Volokh Conspiracy has some thoughtful folks.

      •  It's almost the definition of an oxymoron (0+ / 0-)

        The "living constitution" theory says that we can't look to the original intent except in the broadest terms possible, i.e. it was the "original intent of the framers that we interpret their words broadly". To put the two together?

        If there's anything real to this theory, can you give some examples of where it leads to different conclusions than the "living constitution" theory does?

          •  Can you throw out one single significant (0+ / 0-)

            decision that would go one way under "living constitution" theory and another way under "living originalism"? If you can name one major decision, then I think it would be worth exploring . . .

            Otherwise it's just new window dressing . . .

            •  Thst's not the question (0+ / 0-)

              The question is is the living constitution theory  consistent with an originalist understanding of the Constitution.

              You simply do not understand the argument as far as I can tell.

              •  Of course it's the question (0+ / 0-)

                If you want to acknowledge that it's just a repackaging of the "living constitution" theory, with no substantive difference in terms of outcomes, then this discussion is over. But if it is actually to mean something other than as a marketing gimmick, then you have to say where it differs from the living constitution theory substantively.

                I'm quite certain that advocates of the living constitution theory have always maintained that it's consistent with the original intent of the Framers.

                •  Unfortunately no (0+ / 0-)

                  "I'm quite certain that advocates of the living constitution theory have always maintained that it's consistent with the original intent of the Framers."

                  They didn't. A huge mistake.

                  •  Wrong (0+ / 0-)

                    You need look no deeper than Wikipedia for evidence, nut if that's not sufficient, we can go to the absurdity of citing cases and law review articles on a political blog:

                    In addition to pragmatist arguments, most proponents of the living Constitution argue that the Constitution was deliberately written to be broad and flexible to accommodate social or technological change over time. For this proposition, Edmund Randolph's statement in the preamble of the Committee of Detail at the Constitutional Convention is often cited:

                        In the draught of a fundamental constitution, two things deserve attention:

                            1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and
                            2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states.

                    The living constitution's proponents assert that Randolph's injunction to use "simple and precise language, and general propositions," such that the Constitution could "be accommodated to times and events," is evidence of the "genius" of the Constitutional framers. It is one of the main arguments for the living Constitutional framework. Among other quotes cited in support of the living Constitution is Justice John Marshall's in McCulloch v. Maryland, in which he described the Constitution as "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." These statements are seen as a call for respecting the text and meaning of constitutional language, but also for allowing contemporary needs or values to inform its application to modern events.

                    http://en.wikipedia.org/...

                    •  Wikipedia (0+ / 0-)

                      Well that settles it.

                      •  Come on Armando (0+ / 0-)

                        You complain about my not offering up anything of substance, and you just keep responding with pure snark. If you want to question Wiki's entry on this topic, go right ahead. Where is it in error?

                        But the question you seem to be avoiding is, if this Living Originalism is anything other than simply new window dressing for good old fashioned Living Constitutionalism, then where does it differ in result? Name me one single major constitutional case that would be decided differently under Living Originalism as opposed to Living Constitutionalism?

  •  Interesting that Prof. Balkin rested on McCulloch (1+ / 0-)
    Recommended by:
    Armando

    ... to explain - or perhaps, to understand - why ACA is so clearly constitutional. And Armando's reliance on C.J. Story, who also quoted Marshall's language in McCulloch. I thought so too, albeit with less authority behind my citation of the case than they with theirs.

    Oh, if we Progressives could become as bold today (and eloquent) in applying the Constitution as were Marshall and his early adherents.

    Obama and strong Democratic majorities in 2012!

    by TRPChicago on Sun Apr 22, 2012 at 12:22:49 PM PDT

    •  He likes the taxing power argument better (0+ / 0-)

      in terms of a textual defense.

      •  Yes, but is that adequate to meet the challenges (1+ / 0-)
        Recommended by:
        Armando

        ... to ACA? Clearly (to me) Congress simply could lift the age limit on Medicare and that would clearly be within the powers of Congress. Not that it would be as desirable as a fundamental redo of health care policy.

        Obama and strong Democratic majorities in 2012!

        by TRPChicago on Sun Apr 22, 2012 at 01:43:14 PM PDT

        [ Parent ]

      •  I think it's a bit odd (1+ / 0-)
        Recommended by:
        Armando

        that Balkin, Amar and Dworkin all emphasized the tax and general welfare provisions as the stronger argument for upholding the mandate.

        I know that Balkin and Dworkin consider themselves to be originalists and that Amar is a textualist. I consider myself to be a textualist more akin to Amar but I think Balkins conception of framework Originalism is quite persuasive.

        I have been arguing the tax angle for months, and seeing very little support for it until these fugues emerged around the time of oral arguments to articulate it even better.

        Regardless of whether the penalty itself is a tax, when you compare it to a tax, you see that the individual economic liberty argument (and Kennedy's concern that the penalty fundamentally changed the relationship between citizens and government) is unfounded. Congress definitely has the power to use government coercion through the income tax system to encourage citizens to engage in economic activities. The only salient question is whether Congress' choice to use a less coercive tax penalty somehow invalidates that exercise.  

  •  This seems like a more textualist version... (1+ / 0-)
    Recommended by:
    Armando

    ...of the "constitutional fidelity" approach outlined in Keeping Faith With the Constitution:

    Interpreting the Constitution, we argue, requires adaptation of its broad principles to the conditions and challenges faced by successive generations. The question that properly guides interpretation is not how the Constitution would have been applied at the Founding, but rather how it should be applied today in order to sustain its vitality in light of the changing needs, conditions, and understandings of our society.

    ...

    We use the term constitutional fidelity to describe this approach. To be faithful to the Constitution is to interpret its words and to apply its principles in ways that preserve the Constitution’s meaning and democratic legitimacy over time. Original understandings are an important source of constitutional meaning, but so too are the other sources that judges, elected officials, and everyday citizens regularly invoke: the purpose and structure of the Constitution, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society. A dynamic process of interpretation informed by these considerations is what enables the American people to keep faith with the Constitution from one generation to the next. In elaborating this approach, we start from the premise that constitutional interpretation must be faithful to the character of the document itself.

    The main distinction I'm picking up--based on what I've read so far about Balkin's view--is that Balkin seems to be placing more emphasis on the value of originalist textual interpretation, whereas the Karlan/Liu/Schroeder view finds the text to be valuable but inherently incomplete and unable to provide more than rough outlines for governing in many (if not most) instances.
    Although some of its provisions establish clear and precise rules—for example, the age of eligibility to serve as a member of Congress or as President—the Constitution, for the most part, does not “partake of the prolixity of a legal code.” As Chief Justice Marshall observed, the nature of a constitution “requires that only its great outlines should be marked [and] its important objects designated,” and the language of the U.S. Constitution makes clear that “this idea was entertained by [its] framers.” Our Constitution was not intended to supply a ready answer for every problem or every question that might arise. The Framers memorialized our basic principles of government with broad language whose application to future cases and controversies would be determined not by a mechanical formula but by an ongoing process of interpretation. The Constitution is “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs”; it is a charter of general principles open to “fair and just interpretation” over time. That is “the character of the instrument” that Chief Justice Marshall emphasized when he said “we must never forget that it is a constitution we are expounding.”
    (footnotes omitted)

    I look forward to more posts about Balkin's "living originalism" that will flesh out the distinctions between this theory and the Karlan/Liu/Schroeder one. It's really a good sign that we're starting to seriously debate over progressive interpretive responses to the Scalia-fueled shift that's taken place in recent decades towards original public meaning as the One True Faith.

    ‎"Our greatest asset as advocates is a deep cognizance of our own ignorance, plus a willingness to do something about it." -Joseph Mitchell Kaye, 1966.

    by JR on Sun Apr 22, 2012 at 01:42:42 PM PDT

  •  Originalism as Protestantism (1+ / 0-)
    Recommended by:
    Armando

    The comparison of originalism to Martin Luther and the Protestant notion of sola scriptura is apt.  The liberal position should be analogous to that of the Catholic Church, which holds that the deposit of faith includes the living Sacred Tradition embodied within the apostolic succession.  The tradition of the Constitution includes what has come since ratification as successors of the Founding Fathers and not caretakers.  

  •  I believe that Amar and Balkin (3+ / 0-)
    Recommended by:
    Armando, Nisi Prius, andgarden

    are essentially correct when they argue that faithfulness to the text and structure of the Constitution does not produce right-wing outcomes. For instance, Justice Breyer's readings of the text of the Constitution are much more coherent and intellectually than those of the avowed textualist Antonin Scalia.

    I also believe that the strongest legal arguments are founded on the text of the Constitution, and on the text of the laws and regulations passed under its authority. A major weakness of liberal legal strategy has been to emphasize precedent and principle too heavily without focusing enough on text and structure.

    However, I wonder whether Balkin's strategy is wise. Much of the power of the radical originalism of the conservative movement lies not in its power to persuade but in its power to shift the center of the conversation back into the 18th century.  When you anchor the discussion repeatedly in the subjective opinions of rich white male slave owners from 200 years ago, you inevitably produce fewer progressive outcomes.

    Consequently, I am not sure whether the better strategy is to propose an alternative grand theory of originalism, or simply to continue to employ the same tactics employed by John Paul Stevens and Stephen Breyer in trying to undermine the Scalias and Thomases of the judiciary on a case-by-case basis.

  •  Randian GOP won't understand this quote (2+ / 0-)
    Recommended by:
    Nisi Prius, Armando

    From

    In Tocqueville's writing he covered the special character that united the American people of all levels.  He carefully distinguishes between "self-interest properly understood" as was ingrained in colonial society and "unenlightened self-interest". To begin with the negative, unenlightened self-interest comes closest to our common definition of selfishness. It is that which seeks advantage for the self at the expense of others. It is directed by brute instinct alone. On the other hand, self-interest properly understood poses the rhetorical question of "whether it is not to the individual advantage of each to work for the good of all."  This is not an instinctive attitude but a learned behavior, running (at least initially) counter to the instinct towards seeking self-advantage. Through exercise of this virtue, the individual agrees to connect his quest for self-advantage with the same instinct in others. Thus it is learned that "virtue is useful".  Education becomes a most necessary tool for the restraint of unenlightened self-interest.

    Never promote men who seek after a state-established religion; it is spiritual tyranny--the worst of despotism. It is turnpiking the way to heaven by human law, in order to establish ministerial gates to collect toll. John Leland

    by J Edward on Sun Apr 22, 2012 at 06:35:11 PM PDT

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