Current Events, Uncategorized

Does Constitutional Law Exist?

A federal judge in Hawaii has temporarily blocked the government’s revised Executive Order on immigration. I‘m glad he did this, because I regard the EO as wrong and counterproductive. But I am worried about a larger issue. I have taught Foreign Relations law for many years (even though it is not one my research areas). There is little question in my mind that legal precedent supports the constitutionality of this order. I will not bore readers with legal technicalities, but it is clear to me that, under those precedents, many equal-protection restraints that apply to governmental acts in most areas do not apply to immigration. The government may target groups if doing so responds to a genuine national security concern. Moreover, courts traditionally have refused to second-guess the Executive on areas where the President, implementing a congressional statute, has well-established discretion. Immigration is one of those areas (see a summary here, chapter 3). Please understand me: I don’t support these precedents either; on the contrary, I support virtually open borders. But the precedents are well established.

My constitutional law colleagues tell me that law is a tool, not an end in itself, and it really doesn’t matter how sound the decision is, as long as it achieves the worthy goal of stopping this bad order, or the worthy goal of resisting this bad president. Maybe so. But then I have no reason to listen to these same colleagues’ ponderous doctrinal analyses where they pretend that precedents support their chosen outcomes.

I conclude that there is no constitutional law. It is all fancy, adorned, jargonistic advocacy. Lawyers and judges mislead the public into believing that there is such thing as legally-binding precedent that does not depend on the desirability of the outcome. There is no such thing. Lawyers merely reverse-engineer their arguments in order to tailor them to predetermined outcomes and then pretend that the reasoning was objective.

At the sunset of my career, I must confess that, at least with regard to constitutional law, the nihilists, the Critical Legal Studies folk, who long argued that law is an illusion (only to be laughed off by us, the rationalists), were essentially right.

  • King Goat

    Precedent suggested that the ACA mandate was going to be fine as a use of the commerce power, after all there was a continuous string of expanded readings of it. But with the mandate you got to where the Court was faced with the logic and direction of those precedents and it seemed off putting (a ostensibly free government that could make one eat broccoli [and with no cheese sauce no doubt!]). And faced with that the Court said, yes we’ve allowed every step so far, but a mine’s gotta be drawn here.

    Likewise there’s precedent that can be read, probably most naturally, to allow ‘plenary’ power re immigration. But modern courts are going to have trouble squaring those with the ugly possibility of now not just thought experiment results such as ‘Christians and Jews all aboard the refugee train, Muslims (even Sufis and Alawites it seemed), no dice!’ I don’t see that re-thinking as any more problematic for Constitutional law than, say, the switch from separate but equal to Brown, of Bowers to Ogberfell, or other common law cases where old precedents that don’t seem to fit well with modern sensibilities/realities are overturned (lots of examples in business and tort law [privity of contract’s demise])). The common law, unlike code based systems, was always supposed to be pragmatic to the realities of the day more so than cosmic philosophical consistency and coherence.

    • Fernando Teson

      Perhaps. In that case, let’s overturn the precedents.

      • King Goat

        Give it time. I don’t see Kennedy agreeing with a plenary power to discriminate against people because they’re Muslim rather than Christian or Jewish.

      • Fernando Teson

        Also, “modern sensibilities” are more like partisanship: plenary power doctrine is OK if my guy is in the White House, but we need to overturn it when your guy is in the White House.

        • King Goat

          That’s not how I meant it. I meant in the same way as what happened between Bowers and Ogberfell. In Bowers most people, and legal systems, thought of homosexuals as sex criminals. By Ogberfell (or Lawrence) they were Ellen or that nice out couple down the road. Allowing criminalization of their private expressions of love or barring public vows of their fidelity seemed…unconscionable. Our law can’t mean *that* was the conclusion.

          Or take the demise of privity of contract. In an increasingly modern economy it just seemed to not jibe with how we as consumers experienced things. And so it went away, though it was a firmly established precedent. But the common law has always done that, see Holmes.

          • Fernando Teson

            You make good points. Perhaps this is the beginning of the end of the plenary power doctrine with respect to immigration. Perhaps the brazen campaign run by this president was the catalyst for the courts to do so.

          • King Goat

            Yes, well said, I think he has put a very ugly face on where that doctrine can go, a face I doubt Kennedy will be comfortable with.

    • CJColucci

      Pre-Obamacare, it was reasonably clear that, under the Commerce power, the government could make you buy broccoli, but that, under Substantive Due Process, it could not make you eat it — cheese sauce or not.

      • Theresa Klein

        Members of the court seem to have decided they didn’t like where the pre-Obamacare reasoning led. If the government can force you to buy things, it can dictate what you do with every last dime of your income.
        At which point, you either eat brocolli or starve.

        • King Goat

          You can only stretch some precedents so far before they become ‘a bridge too far.’

        • CJColucci

          Taxes.

    • Farstrider

      Re the ACA, the Court upheld the individual mandate, so you are describing only the dissenters. And, there is precedent for requiring people to purchase insurance. See, e.g., https://goo.gl/DaULx.

      I agree with your point re Brown. You can point to that decision and throw your hands up in the air and say “it’s all politics” – that’s Teson’s view at least – but I think that is fairly uncharitable.

      • King Goat

        Correct, but it relied on the taxing power however and rejected the argument the mandate was supported by the commerce clause power.

  • DBritt

    At a fundamental level I agree with you: people are in charge of it, so it’s not set in stone. But as for how badly this particular case deviates from precedent shouldn’t we remember that the only ruling that’s been handed down for now is a TRO? That has a very different set of standards than a final ruling on constitutionality. And anyway, that final ruling could turn on any number of things that in retrospect might accord well with precedent.

  • Theresa Klein

    We seem to be in an era when one’s political tribe winning is the only thing that matters. All means, however duplicitous, short of violence are acceptable, and none moreso than the intentional construction of false narratives designed to support one’s pre-determined conclusion. This can apply to fake precedent as well as fake news.

    Maybe it’s always been this way – much of the left’s version of the Cold War seems to me like a giant hallucination summoned to reinforce Marxist preconceptions about America and capitalism.

    But it does seem as if lately both ends of the political spectrum have abandoned any effort to arrive at some sort of mutually consistent version of reality and are instead only intent on suckering as many people as possible into believing their propaganda so they can have things their way.

    I may have to go back and re-read The Will To Power to figure out what happens next.

  • If I hadn’t have lived in Canada, I never would have agreed with you. But watching two very different legal systems and constitutional democracies reach virtually identical legal outcomes using legal justifications that are sometimes at complete odds with each other made me realize the truth in what you’re saying.

    You’ve articulated it perfectly.

    • Sean II

      Yes, and a bit of temporal comparison yields the same result. From decade to decade, the strongest predictor for “constitutionality of X” has been “does X agree with current elite interests or opinion?” The second best predictor is popular opinion.

      Roe is of course the classic example of elite opinion conjuring law out of thin air, but there are plenty of cases so obvious as to give the game away: Lochner, Wickard, San Antonia Schools (elite interest if not opinion), Heller (popular opinion), Obergefell, etc.

      Yet this is one of those issues where many smart people have mastered doublethink. Everyone knows what’s going on. People don’t say shit like: “…the vote is expected to split 4-4 between the Originalists and the Strict Constructionists, leaving So-&-So as the Court’s lone Textualist to decide”. But they do speak of “Liberal” vs “Conservative” justices all the time.

      We’re just not supposed to take the next, obvious step from there, and admit SCOTUS is just a weird legislature where the hacks and shills get lifetime appointments.

      • King Goat

        “Roe is of course the classic example of elite opinion conjuring law out of thin air”

        This is of course the received wisdom by laypersons, especially those that lean conservatives, but Roe actually flows quite reasonably from Griswold. The justices took the principles from Griswold, which involved a law few supported, and applied it to a situation which was politically less popular but which was a quite reasonable application of the precedent. It’s almost like they acted quite differently than what legislatures, which tend to do what’s popular at the moment principles be damned, as if they acted like, I dunno, let’s call them ‘jurists.’

        • Sean II

          “This thing we just made up isn’t totally made up, thanks to this other thing we made up less than 10 years earlier.”

          How can anyone not be awed by the majesty of the court?

          • King Goat

            But Griswold itself didn’t come out of nowhere, but rather precedents protecting personal family decisions like Pierce and Meyers.

          • j_m_h

            So Sean, are you simply rejecting the whole idea of common law and the legal concept of stare decisis in favor of a pure statutory legal system or is you complaint something else?

          • Sean II

            Well, the thing we’re arguing about in this thread is constitutional law. So my comments are aimed at that.

            But since you mention it, there are obvious problems with stare decisis – like the fact that it’s a promise to perpetuate mistakes instead of admitting them.

            And looking out a little wider, it’s not hard to see that even the common law is afflicted with a serious case of innumeracy, unscientific thinking, intellectual insecurity and pretention, etc.

            Put it simply: economics and science are responsible for most of what’s good in life, but lawyers are trained to think in a way antithetical to the method of economics and science.

            There’s probably a reason why that profession has been so passionately hated throughout history.

          • j_m_h

            Agree that I should have not mentioned common law. Re stare decisis I think that will generally cut both ways — unless we want to claim incentives only exist to make mistakes and none exist to make correct decisions and I’m not sure that’s true. I would also postulate the both economics and science have their examples of doing more harm than good – the arms race and resulting weapons are only possible through science. Much of what governments does is justified on economic grounds (and who higher the most economists — I suspect we’ll find government up near the top)
            Except — and this isn’t necessary an endorsement of the distinction you make in the example — triangles have 180 degrees and anyone claiming otherwise should be laughed at, unless of course they are talking about a non-flat surface. So there are exceptions and math is full of definitions which are not necessarily suitable for all contexts. I also recall some cosmologist on NPR a bunch of years back making the claim that the Big Bang was no longer a theory but a fact given the results from some new reading regarding CBR — but I think at that time BBT was still saying the universe would eventually collapse on itself in a big crunch. I never hear anyone making fun of the young gun. About 5 years later they got the results that seems to be saying the expansion is accelerating so not only will that big crunch ever occur but that we’ll expand forever at an ever increasing rate.
            But, you’re right we’ve largely lost the idea that we have three branches of government that are supposed to be separate and in many ways independent. That’s how we were suppose to get the checks and balances. That’s not the view of a lot of people now — not sure it that’s a educational things, an apathy thing or simply the entropy thing whereby all systems eventually get gamed.

          • Lacunaria

            Stare decisis can cut both ways, but those willing to change precedent via new judgments (e.g. in light of a changing culture) have a significant advantage. That’s why mistakes are more likely than correct decisions (“correct” as defined by originalism).

      • Theresa Klein

        The thing is that many of our liberties have only survived partially intact because of the intervention of the Supreme Court, and the fact that at least it is required to try to find some sort of rationale based on the constitution for a law’s legitimacy. Otherwise we’d be at the naked mercy of 51% of the population doing whatever it wanted. The Court is the only thing tying us to the constitution at all.

        • Sean II

          No, that’s exactly the wrong conclusion to draw on the evidence.

          Just look at the example I gave: the fact that the Court just so happened, smack dab in the middle of the sexual revolution, to endorse freedom for birth control and abortion suggests that it lags rather than leads historical trends.

          In other words: the freedoms we get from the court we were on our way to getting anyway, and the ones we lose to it were probably doomed otherwise.

          Meanwhile the faux dignity of the institution lends grandeur to the state, which is not good at all.

          • King Goat

            Your main example, Roe, struck down laws in, what, 48 out of 50 states?

            On the one hand your complaint seems to be ‘the court rules with popular opinion,’ (like a legislature does) on the other it’s ‘the court defies popular opinion and rules with elite opinion’ (which legislatures don’t do). It’s like that Woody Allen joke: the food here sure is terrible, and such small portions!

          • Sean II

            The point is: the court is guided by things OTHER then legal reasoning.

          • King Goat

            Heaven’s for Betsty! The next thing you’re going to tell us is that scientists are sometimes guided by something other than the disinterested pursuit of truth!

          • Sean II

            With scientists we have ways to find out when they’re wrong

          • Lacunaria

            Well, we have ways of observing when Justices are wrong, too. Regardless of the line of precedents that Goat might select, if interpretation at time T2 conflicts with interpretation at time T1, with no pertinent syntactic change in the US Constitution, then semantics must have changed.

          • Sean II

            “if interpretation at time T2 conflicts with interpretation at time T1…”

            And since that happens all the time, in politically predictable patterns, it’s hard to miss the message: the Court’s function is to expediently amend the Constitution without following the Constitution’s rules for amendment.

          • King Goat

            That might only show that T1 was wrong. People get things wrong in science and that doesn’t discredit science.

            And I’m not sure it even shows that. Sean’s disdain aside, living constitutionalism seems to me to be closer to how the Founders themselves would have thought interpretation should go. The common law tradition is the one they knew, and the Constitution is full of terms like ‘reasonable,’ ‘cruel,’ ‘due’ which I would think would have to change with time and conditions.

            A perfect example of this is TN v Garner. A cop shot a kid fleeing the scene of a burglary. The dissent argued ‘when the 4th Amendment was written shooting a fleeing felon was accepted common law, so that seizure can’t be unreasonable.’ The majority opinion noted however that the nature and number of felonies in the world, on which the previous rule was based, had changed, and that given that the seizure could be unreasonable now.

          • Lacunaria

            If T1 is wrong, then, by definition, there is a prior interpretation that it conflicts with, such as T0 (the original public meaning). But bear in mind that in the T2 cases we are addressing, there is a long train of T0 through T1 interpretations which basically agree.

            Even if we accept your argument at the fringes that the original public meaning of certain words like “reasonable” were intended to change relative to the culture as measured by a handful of judges, you must still explain other drastic shifts in interpretation, such as the abuse of “interstate commerce”.

            And if you expand your rule of cultural relativity to all words, then you have, in principle, eliminated the entire purpose of the Constitution and we wind up where we are now, where the meaning of the Constitution is changed without changing the text. There is no constitutional law.

            Immoral mistakes of amendment or original public meaning should be corrected by the legislature.

            Of course, some variability is understandable, particularly early on as the semantics coalesce, but it is clear that the Founders meant to separate creating law from applying the law, and it is clear that, under common law, judges create law, not merely fill in the blanks.

            Again, it beggars belief that the Founders would create such a high bar of agreement for amendment and then lower it so drastically to the preferences of a handful of men.

          • King Goat

            The interstate commerce clause cases are actually a great example. The purpose of the clause is clearly to empower the federal government to deal with interstate commerce issues in ways that the Framers thought the Articles of Confederation did not. At the time of the Founding, a pre-industrial age with primitive transportation, a sharp demarcation of inter and intrastate commerce might have been tenable. But by 1940 times had really changed: we had a national industrial economy with a great deal more complicated, intertwined economy. The Justices were faced with either going by the letter of the law or essentially neutering the power granted by the IC Clause. They went Paul’s interpretive route: the letter of the law killeth, but the spirit giveth life eternal (or in this case the ability of the federal government to effectively regulate interstate commerce).

          • Lacunaria

            A few men can justify and effect any change to the Constitution that way. Does that not give you pause?

            If it was so obvious that the federal government should control growing wheat for your own consumption, then they should have passed an amendment, as required by the Constitution.

            You are effectively granting SCOTUS the power to amend the Constitution, which violates not only the separation of powers but also the Constitution’s ponderous inertia and its explicit, far better metric for determining widespread agreement.

            It’s as insane as contracting with people who are permitted to change the meaning of words without actually changing the text of the contract. Say whatever you like; I will choose your meaning. Deal?

          • King Goat

            Is it amending it or giving the provisions effect? Any document with such broad provisions in it was certainly meant to have some body put flesh on the bones, and the Constitution itself seems to point to the Court to do that. And it’s not as freewheeling and arbitrary as you describe, the Court is constrained by judicial norms of not departing from the intelligible principles the text supplies as they work out the details in giving them effect.

          • Lacunaria

            It is amending. The way to distinguish between amending and filling in the blanks is whether they were actually blank.

            In the case at hand which Teson argues (and most of those Sean cites), there was already “flesh on the bones” of original public meaning. The bare bones weren’t just sitting there for a couple hundred years. There was an original interpretation that was then destroyed and replaced.

            Teson’s point is that his constitutional law colleagues see that there is already flesh on the bones and they don’t care! They still want it changed by the courts rather than by amendment. Hence, effectively, there is no constitutional law, just precedent.

            I agree that it’s not freewheeling and arbitrary, but it is also not primarily based upon the original public meaning of the Constitution. Rather, it is based upon the judges’ elite sense of morality and their appeal to thin threads of reasoning and drifting precedents to accomplish their destructive changes.

          • King Goat

            As has been pointed out, the plenary power cases Teson refers to are as close to unmoored from Constitutional text as cases get.

          • Lacunaria

            I’m not sure how you are going to complete that partial sentence, but I have to leave soon (sorry for my delays) and my point is that even the people who agree with Teson on prior interpretations and precedents want the courts to change it. Perhaps Teson himself can clarify if I am misunderstanding him.

          • King Goat

            Teson’s original post isn’t about whether something is objectively wrong or right, I’m not sure how that would happen with an interpretive endeavor like constitutional law, but whether it’s an overall honest attempt to work within its own stated logic or rules.

          • Lacunaria

            That’s basically how I interpreted Teson’s realization: there is no constitutional law, because constitutional law is the same as common law. Change the precedents and you’ve changed the constitution.

          • j_m_h

            I get what you’re saying to some extent but something seems a bit off as well. Common law was supposed to be governed by the underlying customs of the local population as I understand the standard. Customs can certainly change and as they do the underlying legal conclusion would have to reflect those changes as well but it doesn’t suggest that the court is what’s driving the change in governing customs, or even defining them (if we grant the judge is making an effort to understand what the locals are doing and not looking to impose some view of what they should be doing).

          • Sean II

            Sure, but remember that the power of SCOTUS specifically rests on a denial of that role.

            They do NOT say “our authority comes from customs, tradition, etc.”

            They say “we alone have the final word on what this particular document says”.

            Different claim. Indeed by the time a SCOTUS defender ends up invoking common law, he has in a sense lost the argument.

          • j_m_h

            Well someone needed to do that — though I suppose they could have toss the whole thing out saying it was too vague and required too much interpretation and needed a rewrite 😉 Actually, maybe we should.

          • King Goat

            “Common law was supposed to be governed by the underlying customs of the local population as I understand the standard. Customs can certainly change and as they do the underlying legal conclusion would have to reflect those changes as well”

            “They do NOT say “our authority comes from customs, tradition, etc.””

            Huh? That’s pretty much *exactly* what living constitutionalism does say. The prime example of this is 8th Amendment jurisprudence, especially death penalty cases. The Constitution lays down a general principle which is to be given effect with reference to the ‘evolving standards of decency’ of society.

          • Sean II

            Living constitutionalism is horseshit, so who cares what it has to say.

          • David Harrell

            The use of deliberately flexible terms such as “cruel and unusual” does not invalidate the fixedness of the many other words in the compact. Such as: “Congress shall make no law.” English is really not that hard!

          • King Goat

            Good example, because with this provision *noone* argues it should be taken as plainly or literally as you make it out. You wouldn’t allow the sharing of troop movements with the enemy or true threats, but all of them are ‘speech’ and there is no qualification in the text to ‘make no law…abridging the freedom of speech’

          • Farstrider

            You don’t have to be a wackjob liberal to note that the phrase “Congress shall make no law” did not actual mean what it says. No one thought Congress was barred by the First Amendment from penalizing fraud, threats and defamation, to use just three obvious examples.

          • David Harrell

            Actually, I don’t think any one would have expected Congress to be involved in such areas at all, as such matters are not among the enumerated powers of the United States government. Fraud, threats and defamation would have been State issues. The Sedition Act of 1798, where Congress did try to step in and limit speech against the government, was short-lived and caused a terrific backlash.

          • Farstrider

            Well, ok. But we can change what I wrote to “fraud against the United States government” and “threats against, or defamation of, United States officials” without changing much of anything about my conclusion, which is that the First Amendment cannot be read literally.

          • Lacunaria

            That doesn’t address constitutional law, does it? The whole point of constitutional law is to stabilize semantics and restrict how changes occur.

          • j_m_h

            I’m not sure. I’m not a legal or Constitutional Law historian. My understanding of the Constitution was it defined a structure of government and enumerated certain powers, and then added some things about rights. Whether or not the original authors thought it was something that would never require any interpretation and was a complete, time invariant collection of statements I’m not sure.

            Clearly some parts are pretty black and white but other parts seem more fuzzy in terms of do the actions fall within the given powers or not or whether the protections defined apply to everyone or just a subset of the human population.

            Of course, as Sean points out the whole question of who can interpret the document was never defined but it is a simple reality that someone was forced to do so. Since courts apply the law ultimately they need to interpret the law, so it seems to belong, for better or worse, with the 9 robed figures as it’s clearly not granted to either the executive or legislative branches.

          • Lacunaria

            Of course the Constitution is not written using formal semantics (whose interpretation would be deterministic), but rather using broad principles subject to original public meaning and interpretation by the courts which increasingly formalize its semantics over time.

            Nevertheless, there is a relatively simple test for consistency, namely whether interpretations conflict over time. If they do conflict, then the courts are creating law rather than interpreting it.

            Teson is pointing to a case where his constitutional law colleagues are blatantly calling for such conflict.

            Such living constitutionalism trades stability for expediency by granting law-creating power to the judiciary, and in so doing, destroys what is useful about a constitution and its ponderous mechanisms for amendment.

            There is little point to a constitution whose syntax (i.e. mere words) is fixed, but whose semantics (i.e. interpretations) are variable (and contradictory!) over time.

          • Sean II

            You said this first. But before seeing it I wrote a similar reply to jmh below.

          • Lacunaria

            I enjoy your comments. The more the merrier. 🙂

          • King Goat

            Why shouldn’t constitutional law operate ‘the same as common law?’ That’s the kind of law the Framers of the Constitution were familiar with (steeped in, actually).

          • Lacunaria

            So you are agreeing with Teson’s observation that there really is no constitutional law, but asserting that that is how it should be?

            I disagree. It should not be the same as common law, for the sake of semantic consistency, the separation of powers, the difficulty of amendment, and I doubt the Framers intended that. Or do you really think that changing the Constitution should require three-fourths of the states OR the majority opinion of a handful of men?

            A Constitution whose semantics can change in your favor by the rule of 5 justices can do the opposite as well.

            Also, you may be misusing John Marshall.

        • Theresa Klein

          I’m not saying they aren’t influenced by public opinion. I’m saying that they are slightly less influenced by public opinion than the legislature or the presidency. I’m saying that SCOTUS is better than nothing. If we got rid of the judicial branch, we would have been a one-party socialist dictatorship by 1940.

          • Lacunaria

            You replied to yourself, so Sean might not see it, but I doubt he’s advocating the abolition of the judicial branch.

            FWIW, I don’t think they are really influenced by public opinion, rather they are influenced by elite opinion which often becomes popular opinion (though not e.g. in the case of flag burning, as Goat notes).

          • Sean II

            Indeed I’m not advocating for anything except “see the truth, say the truth”.

            One of the reasons why the humanities are such a joke is that people are always skipping the observation phase (where all the boring work is) in order to leap ahead into the advocacy part (where all the fun is).

            Check it: I don’t have a plan to abolish the Court, and I don’t know how to replace or improve it.

            I just know that it doesn’t work in anything like the fashion alleged by its advocates, but instead closely resembles the partisan and ideological trend driven behavior of the other two branches.

            I also know there’s something interesting to be learned from the romantic foolery that makes some people unable to see this rather plain fact.

          • Lacunaria

            My improvement would be to explicitly define that the courts can fill in the semantic blanks but cannot change them once they are filled in.

            When pressed, even the living constitutionalists admit that they are changing the constitution. In the case of gay marriage, they even postponed bringing the case to SCOTUS for decades in order to prevent an explicit ruling against them.

          • Sean II

            I guess the ol’ constitution had to do a bit more living before it could give the right answer to that particular question.

          • King Goat

            If they thought the Court does things as freewheeling about precedent as you claim why would they worry about an unfavorable precedent?

          • Lacunaria

            See my reply here. I don’t think it is freewheeling or arbitrary.

            Unfavorable precedents do work against them — they need some rationalization, but practically speaking, they just have to avoid retaliation, hence the correlation with shifting public opinion.

            What does it take to thoroughly piss off and motivate 3/4 of the states? That is the raw measure of SCOTUS’s power.

          • King Goat

            With all due respect, if anyone doesn’t have a sure footing at the observation stage of constitutional law wouldn’t it be you? You seem relatively unfamiliar with case law (again, not meant as an insult, but it’s not a field in which you’ve much training or study, right?)).

          • Sean II

            I almost certainly know more about it than you.

          • King Goat

            Your comments here belie that. A 1L knows, for example, about the private/public distinction in 14th Amendment law or the precedents undergirding Roe.

          • Sean II

            I saw you try to push this narrative before, in a thread last year: “those who doubt the intellectual integrity of the law could only do so from ignorance of its finer points”.

            It was wrong the first time, and it’s silly now.

          • King Goat

            Nope. Lots of legal scholars with years of training and education come to the conclusion it’s a sham. That’s not what I’m saying. What I’m saying is that it seems clear you don’t have that background.

          • Sean II

            It feels like I’ve said this to you before:

            Fine, then come up with a way to test that claim. I’m a sport and will happily oblige.

          • King Goat

            I already have. Like I said, 1L’s and people with even less training make comments like Roe is when they make stuff up or don’t seem to know about the state action doctrine.

            I mean, come on. Are you saying you have legal training? You’re going to say you’re self taught, right?

          • Sean II

            “You’re going to say your self taught, right?”

            God, no. I would never have read this crap without having a syllabus pressed against my temple.

          • King Goat

            Haha, wonder how I guessed that right , huh?

          • Sean II

            You didn’t guess right. You guessed wrong.

            Also this is my last straw with you, for now. I keep giving you chances, and you keep reverting to these weird maneuvers.

            I’m just not gonna spend time talking to anyone who pulls shit like this:

            “You’re probably self-taught, right?”

            “No.”

            “Aha! Just as I suspected!”

          • King Goat

            Get over yourself. I don’t just respond to you. I’ve responded to Lacunaria more in this discussion, but you don’t see him doing this pissy routine of yours.

            You said something about how people in the humanities don’t do the boring slogging observation work but instead jump to pontificating about the field’s conclusions, and I remarked, come on, that’s what you’re doing here, aren’t you? I read your remark to be a sacastic one about the low value of formal training (of course the only way to read these properly is along to some syllabus you’re forced to follow, smirk). As to playing games, it’s you that’s being characteristically coy. If you went to law school why wouldn’t you just say that when someone says from what you’ve said it doesn’t seem like you have.

          • Sean II

            This is what you can’t seem to grasp: I know about that alleged doctrine and those alleged precedents, but I also know they don’t work. They don’t hold up. They can’t withstand the obvious arguments against them.

            Now you just seem like an idiot who imagines that being the first person in a thread to mention something is the same as being the only person aware of it.

          • Sean II

            “If we got rid of the judicial branch, we would have been a one-party socialist dictatorship by 1940.”

            That makes no sense.

            First of all because we DID have a one party dictatorship in the early 40s. In practical terms FDR was less at risk of removal than any war leader except maybe Stalin. His party held both houses for nearly the whole of his regime.

            Also the Court’s (feeble and limited) resistance was broken in ’37, so you certainly can’t credit those geldings with the prevention of anything.

  • Craig J. Bolton

    There is no question that proper law is somewhat ambiguous (as is the English language) AND MULTI-VARIATE. That is why we have an adversarial system and why we have judges rather than computers. A correct legal decision demands JUDGMENT between often contradictory considerations. Applying some precedents and ignoring others is part of that process. Does that mean that there is no such thing as law, and it just a ruling class myth. Ah, no. It means that law is a human process.

    Not curiously, every society that has existed for any length of time sees this same phenomenon arise. In Judaism, for instance, you have the written Torah (law), which states 613 laws, and then the oral law. The oral law is the interpretation of the written Torah (like a body of precedents or case law). It is an interpretation that has competing conclusions, and you ask a rabbi for a responsa as to which interpretation applies to a given case. Exactly the same pattern.

    • Theresa Klein

      Yes. Same thing in the Catholic church with Canon law and the Jesuits. No surprise that the current makeup of the Court is Catholic/Jewish.

      • Craig J. Bolton

        If you understand rationalism, this is its real world institutional expression.

        • Lacunaria

          Rationalism itself implies a living constitution?

          • Craig J. Bolton

            Rationalism implies an explicit acknowledgement of competing considerations and a balancing of those considerations in the context of the facts of a particular case.. As I said above, Law is not some computer program that can be mechanically applied. Law is not an axiomatic system. Law implies THE ARGUMENT OF REASONS FOR WHY ONE PRINCIPLE DOMINATES IN A PARTICULAR FACTUAL SITUATION. Generalized, that is also what rationalism is all about.

          • Lacunaria

            Why can’t law be roughly seen as a axiomatic system? There can certainly be axioms regarding the dominance of one principle over another.

            In any case, the pertinent issue at hand is whether the same text (constitution or precedent) should change its semantics without changing the literal text.

            To the extent that rationalism applies, one should prefer stable semantic models rather than those whose meaning changes without any syntactic change.

      • Sean II

        That’s not the reason!

        The Court is heavily Jewish because the top of the legal profession is. Like they top of every other cognitively demanding profession. Just what you’d expect from base rate analysis.

        It’s heavily Catholic because the anti-abortion lobby held a lot of sway during the years in which the current crop was nominated.

        • King Goat

          It’s genetics, except when it’s not 😉

          • Sean II

            She was obviously making a culture argument.

          • King Goat

            *She* was, but I was replying to *your* comment. What’s up with that faint hearted genetic determinism there ;).

      • Lacunaria

        Are there any other ways to change Canon law?

      • David Harrell

        TK — you are a genius.
        In other words, you echo my thoughts exactly!
        U.S. jurisprudence has gradually been turned into Talmudic/Catholic canon law. The written word, with its (relatively) fixed meaning, no longer controls. The secret, ever-evolving “oral tradition” of the rabbinate/”magisterium” is all that matters.

        • King Goat

          U.S. Jurisprudence, which is part of the common law tradition, has always been like that. The text is important, but case law has and is critical as to how it’s given effect.

          • David Harrell

            1)Common law was never established in
            the federal Constitution, although it was implicitly recognized as a
            basis of State law.

            2) “Case law” doesn’t exist, although “custom and tradition” — i.e., propaganda – insist it does and most people would rather believe the latter. In the Constitution, a case is decided by a court and applies to the two parties to the case. Law is enacted by a legislature and applies to all parties.To conflate the two is to nullify the legislature and the separation of powers.

          • King Goat

            Every single person who worked on, debated and wrote the Constitution was steeped in the common law tradition as their main, if not only, understanding of how law and judicial behavior operate. That’s what I meant. It’s odd if they, knowing the Constitution was incredibly broadly written (‘necessary,’ ‘proper,’ ‘reasonable,’ ‘cruel’ etc.,), wouldn’t think it would be fleshed out in specific applications via common law type reasoning and interpretation.

            As to your second point, I’m unsure what you’re getting at, are you saying we shouldn’t have judicial review? Seems to me if two parties have a case or controversy over a matter of law, and at least one of their cases is that they don’t have a legal duty or such because the law is unconstitutional, the Court in deciding the case has to make a decision about the law’s constitutionality that should apply to other parties similarly situated.

    • Lacunaria

      Your analogy ignores that there is a clear mechanism to change the meaning of the US Constitution, but there is no such mechanism for the Torah.

      The US Constitution could be changed to achieve opposite semantics and judgments, but increasingly, it is simply being reinterpreted to achieve ends which conflict with past judgments and interpretations.

      Teson’s realization is that originalists are at a terrible practical disadvantage to those who simply push to reinterpret it and then rely upon precedent. That is the sense in which “there is no constitutional law”.

      • Craig J. Bolton
        • Lacunaria

          That parable seems to be making my argument that the Torah cannot be changed syntactically, unlike the US Constitution. Moreover, a blind deference to the majority of sages can compromise its integrity.

        • Lacunaria

          Sorry, I didn’t notice your edit. Sure, they do not advocate the “plain meaning” of the Torah but do they advocate the “original meaning”?

          • Craig J. Bolton

            Not unless you believe the myth that the Oral Law was whispered in Moses’ ear at Sinai, and that it hasn’t changed since then. The problem with that myth is not only is it easy to show that it is counter-historical, that the Oral Law has been matierally different at different times and in different places, the real problem serious is that it strips the judge, in this case the rabbi on the spot, of the discretion that he was meant to have by the fiction of the Oral Law.

          • Lacunaria

            Now you have switched to the Oral Law. My question was about the Written Law, namely, whether Jews believe it ever actually advocated that parents should kill their children merely for being disrespectful. Was that its original meaning? Was that its meaning at any point in time?

          • King Goat

            It literally and plainly says that, if it wasn’t the ‘original public meaning’ then they just did some impressive interpretive leaps from the start rather than figuring it out later, and I’m not sure how that’s any better under your argument throughout this thread. I mean, if at T0 the interstate commerce clause were read to allow intrastate commerce, despite what’s plainly written, would that be better than two hundred years later saying ‘yeah, we see what’s actually written here, but times and conditions on this have so vastly changed in this area that to give this any real effect we’re going to have to ignore that somewhat.’

          • Lacunaria

            Even the interpretation of the US Constitution within its well-defined government has shifted in a couple hundred years, much less our interpretation of Jewish law which applied to their markedly different social and comparatively anarchical system thousands of years ago.

            e.g. the principled framing may be similar to the “eye for an eye and a tooth for a tooth” which establishes a basis for equitable compensation, not typically mandating taking an eye or a tooth.

            It’s not clear that even slaves are to be killed for disrespect, so it’s strange if children actually are.

            I’m sorry, I don’t understand your question or its premise: “if at T0 the interstate commerce clause were read to allow intrastate commerce, despite what’s plainly written”. Are you saying that at T0 the CC didn’t allow intrastate commerce or that allowing it was not clear to them?

            My overarching argument on this page is that there is great value to semantic stability when there are procedures for changing the law’s text (procedures which do not exist for Judaism or Catholicism).

            Merely changing interpretation essentially short circuits those procedures and leaves people subject to the inclinations of handfuls of men rather than any greater widespread agreement or representation.

          • King Goat

            The law literally and unambiguously says children that dishonor their father and mother should be

          • MARK_D_FRIEDMAN

            I don’t generally find it worth my time to correct you, but when you interpret Judaism is some idiotic way, I feel I have no choice, as others may not know better. The words of the Torah, like the Constitution, can be read by an eight year old, but their proper interpretation requires an understanding of the entire Jewish textural corpus: the oral law, kabbalah, commentators like Rashi, Maimonides, etc. (just as a constitutional scholar must make reference to SC precedent, the Federalist papers, law journal articles, and so on). There are many things in the Torah–in addition to the rebelious child–that require the death penalty, yet as explained by this Orthodox rabbi, the Talmud says plainly that if the highest religious court is permitting more than one execution every 70 years, it is acting in a monstrously unjust fashion. But, despite your pontifications, I am sure this is news to you. Pro tip: when you’re really ignorant about a subject, just don’t go there. http://www.chabad.org/library/article_cdo/aid/173414/jewish/Replacing-Fundamentalism-With-What.htm

          • King Goat

            As is usually the case, you’re not getting what I’m saying. Must be that autism thing again.

          • MARK_D_FRIEDMAN

            Only a legal ignoramus would believe that they have said something meaningful about First Amendment jurisprudence by announcing that it “literally and unambiguously says” that: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Of course it says that, but what does it mean? Congress has passed many laws about these subjects, and a number have been upheld. This is exactly what you said about the Torah, displaying the same level of ignorance.

            Now, I haven’t the slightest trace of autism, but I do have enough common decency not to use this condition as an insult. Why don’t you just cut to the chase and call me a “spazz” or “retard.” You’re not just a blow-hard who loves to hear himself talk, but a total jerk. Enjoy your mommy’s basement.

          • King Goat

            Again, you clearly don’t get what I was saying and therefore don’t see how irrelevant your supposed point is (look, I made the exact First Amendment example above and earlier that you make now, that should be a hint). But autistics tend to do that.

          • Lacunaria

            Even if we overlook the fact that your own literal and plain interpretation may not be the same as the original meaning, there is an explicit, lawful way to amend the Constitution, so how is it analogous?

            Everyone keeps appealing to common law rather than what is unique about the Constitution — namely, that it is only supposed to change subject to vast agreement.

          • King Goat

            A Constitution is meant to supply broad principles, but their specific application to changing conditions will, like common law jurisprudence, change as well. To do otherwise would be to have the broadly agreed upon primciples themselves negated and given no effect.

          • Lacunaria

            Your premise is false. You are ossifying abstract principles at the level that you see fit, but when the states agreed to the Constitution, they weren’t simply agreeing to abstract principles as you assert, they were agreeing to their applied meaning — they were agreeing to enumerated powers of the federal government.

            This means that if the feds could not originally prohibit people growing wheat for their own consumption, or prohibit a drug without an amendment, then they cannot later discover that power lying dormant in the Constitution.

            Was there wiggle room with blanks to be filled in by the courts? Certainly, but as they filled them in, they can’t just drift or destroy them and replace them again.

            “Cruel and unusual” is your best argument, and it is possible that it was originally understood to be culturally-relative as measured by SCOTUS. But that becomes more dubious if they had conceived of the possibility that culture could become more vicious rather than less, since that clause is surely intended fix semantics at some minimum absolute protection.

            My sense of the Founders is that they would appeal far more to measuring culture via amendment rather than via SCOTUS.

            Indeed, they required such a high 3/4 bar for amendment because explicit agreement is vital for the moral legitimacy of the Constitution. Shifting that power to SCOTUS inverts that protection — it says that a handful of men can change the Constitution, unless 3/4 stop them.

            How many nations have abstract constitutional protections for various human rights, such as free speech, while differing in their applied meaning?

            Are all these nations protecting the same principles? No. It is the preservation of meaning that is essential to the US Constitution, not your culturally-relative interpretation of fixed abstractions.

          • King Goat

            Let’s stick with the 8th Amendment. How would it even be amended as you describe? With a list of all punishments the Framers (or Amenders) thought OK and those they didn’t? That’s not possible regarding the Framers (even the best historian couldn’t rightly guess out of all possible punishments what would fall under and what would not the public meaning of what is ‘cruel,’ even if there were a consensus meaning) and just not what Constitutions do. It says cruel ones are prohibited, what else can any given set of Justices do but review any punishment in front of it for whether it seems cruel, and notions of cruelty just do change. They’d have to change or we’d be ignoring things like more scientific information about punishments and how their experienced. Again, if new science showed that, say, a particular lethal injection protocol once thought non-painful actually involved incredible pain, would we amend the 8th Amendment by saying ‘All cruel and unusual punishments are prohibited, add this chemical formula for lethal injections into the list of cruel and unusual punishments under section A, subchapter 3, etc., etc.?’ Again, that’s what statutes or regulations do, not Constitutions.

          • Lacunaria

            Notice that you have switched from culture-relative to science-relative interpretation which is more reasonable.

            As I already argued, it does seem likely that the original public meaning of “cruel” limited pain / viciousness (just as “$20” limited seriousness), so punishments could be compared on that scientific basis.

            So, you are right that, theoretically, a specific application (lethal injection) could be justifiably reversed on the basis of original public meaning if the pain in that application was discovered to be beyond the limit.

            However, in practice, violating past applications is a clear and common sign of semantic drift and destructive modification, as is appealing to science when you are actually asserting that judges should measure culture.

            Most notably, people do not actually argue over your hypothetical examples, and if they did, then it would be appropriate for 3/4 of the states to have to agree that “twenty dollars” really was a measure of seriousness and “cruel” really was a measure of pain.

            If we are going to err, let us err on the side of affirming what the states ratified. Anything less devalues the moral legitimacy of the Constitution.

            Or do you really think that a handful of judges measures our culture better than 3/4 of the states?

          • King Goat

            I’m not switching, I think both are relevant (or rather involve the same thing). Broadly written (and, as I argue even not so broadly written measures, like the 20 dollar example) provisions in a Constitution contain broad concepts or principles. How these are to be applied to specific cases (is case Y an example of ‘undue’ or ‘due’ process? Is case X an example of a ‘reasonable’ or ‘unreasonable’ search? Is case Z an example of a ‘cruel’ or ‘not cruel’ punishment?) is necessarily going to be informed by current understandings of those concepts and the facts around each case and what those facts mean. That includes, but isn’t limited to, ‘science relative’ facts. Not only could an 8th Amendment decision be reversed because science discovered the pain of a punishment was beyond the ‘level’ of pain the Founders understood to be the threshold for a cruel punishment, but the very threshold, in degree or kind, can and should be determined by different generations idea of what is cruel. The Founders didn’t write a list of punishments they considered cruel and ones that they considered OK, or some criteria underlying such classifications, rather they wrote a provision for future generations to apply and it said simply ‘cruel.’ The most reasonable conclusion from this is they didn’t want us to engage in some historical mind reading about what criteria and specific punishments their generation thought cruel, but we’d come to some way of determining what each judging generation thought cruel. Note, when I say each judging generation I don’t think the criteria should be: what five justices think is cruel. Instead a test should be fashioned to try to objectively assess the ‘evolving standards of decency’ of the society currently around them.

            This will lead to different rulings on specific applications at different times, but there still may be no violation of the principle in the written text (again, the principle is often all that’s in the text, specific applications are rarely so). Flogging can be allowed at T0 because it was not thought, given the moral and scientific understandings of that time, to be overly cruel, but it could be barred at T1 because given later moral development and scientific understandings it is seen as unconscionably cruel. I don’t think any violation to the language has been done. It says to judge it by whether it’s ‘cruel’ or not, and perceptions of cruelty are by nature relative, changing things. What would be an unjustifiable amending, imo, is if the Court largely or wholly ignored the criteria of cruelty.

          • Lacunaria

            Note, when I say each judging generation I don’t think the criteria should be: what five justices think is cruel. Instead a test should be fashioned to try to objectively assess the ‘evolving standards of decency’ of the society currently around them.

            Wow! This is key! Haha, why not the objective assessment of federal constitutional standards by the agreement of 3/4 of the states?!

            It’s funny, but what other assessment do you have in mind? Because in practice, that’s exactly what you have been doing: advocating what five justices can get away with, instead of the objective assessment that the Framers actually created.

            Also bear in mind that the domain of the federal government was to be limited to select powers that we can pretty much all agree upon, so evolution should be pretty rare at that level.

            Regarding the rest of your argument:

            Agreements are invalidated when their meaning changes, so yes, we absolutely must infer what was actually agreed upon and reasonably understood at the time in order to maintain the semantic stability and legitimacy of the Constitution (or any agreement).

            Now, if you want to argue that they originally expected cultural relativity on some issue, great, I might even agree, but their reasonable expectation that the courts would settle the details does not entail that they expected those details to perpetually shift relative to SCOTUS’s estimation of culture. Those are two separate claims.

            You basically have two major practical problems with your argument which still need to be addressed:

            (1) You are arguing at the fringes. The hypothetical cases which you are arguing are different in kind and scope from those that Sean cited.

            Do you honestly believe that any significant proportion of the original ratifiers or public would agree that “interstate commerce” entailed that the federal government could control what a person can grow on their own property for their own consumption?

            Do you honestly think that they were agreeing to make that meaning relative to SCOTUS’s own estimations of culture?

            (2) Worst case scenario with my approach is semantic consistency and that 3/4 of the states have to agree to change something that they should overwhelmingly agree upon anyway since that is the threshold of legitimacy of the Federal Constitution. If they can’t agree, then it should be handled at the state level.

            Worst case scenario with your approach is that SCOTUS becomes an end-run around amendment (an objective assessment!), the Constitution loses its semantic and moral legitimacy as an agreement, and raw power shifts to the federal government.

            Where do you think we are as a nation?

          • King Goat

            “why not the objective assessment of federal constitutional standards by the agreement of 3/4 of the states?!”

            Because, as I said, what would the amendment possibly say? “Cruel and unusual punishment is prohibited, but let’s add that punishment Y, which was thought OK by the people who passed this amendment, but now after scientific discovery and moral development nearly everyone thinks it’s much more awful, is indeed cruel and so prohibited?” That kind of specificity was never meant to be in Constitutions. And no semantic drift has even occurred when all that’s happened is the same understanding of a concept is applied to what a new generation thinks involves different facts and values! It’s still a judgement of what the text demands, is it cruel or not? If science discovers tomorrow that solitary confinement causes way more misery than people once thought, you would have us amend the 8th Amendment with some language like I quoted above? That seems bizarre, and again, not like usual Constitutional language.

            “Do you honestly believe that any significant proportion of the original ratifiers or public would agree that “interstate commerce” entailed that the federal government could control what a person can grow on their own property for their own consumption?”

            No, I don’t. But I also don’t think they envisioned the kind of economy that exist in 1930’s America. What they wanted was a federal government with powers of regulation to address what we might call national ‘collective action’ problems in the area of the economy. There’s no dispute they wanted an effective power to regulate interstate commerce. By the 1930’s the facts had changed, it was realized that no effective, meaningful regulation of interstate commerce could occur without some regulation of some intrastate commerce. Wickard simply gave meaningful effect to the power explicitly in the text given the conditions, it wasn’t an amendment.

            “they should overwhelmingly agree upon anyway since that is the threshold of legitimacy of the Federal Constitution.”

            That same 3/4 process created a Constitution which explicitly granted the federal Courts the power to give meaningful interpretation to the provisions of the Constitution, and did so in an era in which Common Law theories of interpretation and application of the law were not just largely prevalent, but for most the only known way to even think about how law works. Given that, I’d say fealty to the original understanding of the Constitution *includes* fealty to the idea that the Courts would interpret its provisions in the Common Law tradition, that is, to take into account changing conditions to make them ‘work’ in every generation, keeping the principles the same even if the specific applications *must* change (because conditions have changed).

          • Lacunaria

            “why not the objective assessment of federal constitutional standards by the agreement of 3/4 of the states?!”

            Because, as I said, what would the amendment possibly say? […]

            You answered a different question than what I asked.

            You wanted an objective assessment rather than the decree of a handful of judges, so my question was, why not require the judiciary to use an objective assessment of 3/4 of the states and call it a “precedent”? Is it simply the word “amendment” that freaks you out?

            Again, what other test are you proposing to objectively assess social standards? It’s some sort of vote, right?

            If social standards have changed, then prove it! That’s what the 3/4 mark is supposed to do, and uncoincidentally, that is precisely the degree of legitimacy of the Constitution.

            That kind of specificity was never meant to be in Constitutions.

            But $20 was? No, the ratifiers meant something and they expected it to be reasonably and consistently interpreted according to the original public meaning.

            And no semantic drift has even occurred when all that’s happened is the same understanding of a concept is applied to what a new generation thinks involves different facts and values!

            Unless that cultural relativism was part of the original public meaning, that’s exactly what “semantic drift” is!

            The whole point of the 3/4 ratification is to block the tyranny of the majority but you are surrendering that power to a handful of judges!

            It is inconceivable that the Framers would go to such lengths to require 3/4 consent of the governed only to let a handful judges profoundly change its meaning. That is why you felt compelled to clarify that there should be some test to objectively assess social standards.

            yet we have to follow their now discredited and unaccepted ideas about how those concepts apply…if you don’t like it, amend it, though we have no idea what words you’d use since their understandings of these words are no longer accepted!’

            Your argument makes no sense. If judges can put it into words to change the meaning, then so can legislatures.

            The essential moral legitimacy of a contract comes from fixing meaning, not from fixing words. You are eroding the fundamental moral basis of agreements.

            I could go on, but I’m hoping you’ll see the error of your argument as you consider and answer my question about the objective assessment by the judiciary.

          • Craig J. Bolton

            Now I have no idea of what you are talking about. Jesus and Christianity are not a part of the Jewish legal tradition. So whatever Jesus believed really has nothing to do with this discussion.

            What I have been talking about is “what is The Law. What it isn’t is just the plain meaning of the text.

          • Lacunaria

            I never mentioned Jesus. You talked about the Written Torah (the Pentateuch) and then you switched to the Oral Torah written in the Mishnah and Babylonian Talmud.

            In any case, my question remains regardless of which you are referring to: Have the Jews ever believed that proper interpretation of the Torah advocates that parents should kill their children merely for being disrespectful?

  • M Lister

    Hi Fernando, You say,
    “There is little question in my
    mind that legal precedent supports the constitutionality of this order. I
    will not bore readers with legal technicalities, but it is clear to me
    that, under those precedents, many equal-protection restraints that
    apply to governmental acts in most areas do not apply to immigration.”

    Do you have in mind the various “plenary powers” cases, from the late 40s/50s (and from the “Chinese Exclusion” era? I ask because, while those cases are of course still, in some sense, “good law”, they are also cases with awfully weak foundations – nothing in the constitution itself even suggests that the federal government – let alone the president on his own – has such power. It seems to me to have been created out of whole cloth by various courts. Insofar as that’s so, is it such an insult to the rule of law to scale back these rulings? I am a firm believer in the importance of legal norms. But given the relative shakiness of this claim to power, I do not see much problem in trying to scale it back.

    Also,
    “The government may target groups if doing so responds to a genuine national security concern.”

    Of course, we might say, but the question is whether any showing of the concern being “genuine” is necessary before real people lives are destroyed. It’s not an easy area, but it’s worth recalling that, in the “red scare” cases that gave us most of the legal doctrine in this area, the most important reason why the “evidence” had to be kept so secrete that it couldn’t even be shown to a federal judge en camera was that, as it turns out, there was no evidence at all. That is, there was no “genuine national security concern.” Isn’t this some reason to demand some sort of real showing here? So far, we have nothing at all.

    • Fernando Teson

      Hi Matt, thank you for the comment. Nice to hear from you. I do not want to go too much into the merits because my concern is jurisprudential, not political in any sense of the word. Any other example of this fake reverse-engineering technique will do. But I will say that any non-result-oriented reading of the legal materials indicates that the revised order is constitutional. I don’t even need the “plenary powers” doctrine (which I deplore, although it’s good law). I only need one or more of the following principles found in precedent: Justice Jackson’s concurrence in Jackson (category 1); the fact that folks living in Yemen, etc., unconnected to the US, have never been protected by the Fourteenth Amendment; the fact that never before have statements in a political campaign have been used against a President (nor should they, I believe); and the fact that courts are not equipped to judge whether or not immigration from these countries constitutes a security risk. Again: I don’t necessarily agree with these precedents as matter of morality or policy. In fact, I don’t: I support virtually open borders, and I think those precedents give too much power to the President. I just think that advocates are shamelessly ignoring well-established precedent out of their desire to bring Trump down. I only ask them that they admit this, instead of masking political onslaught with the language of legal objectivity.

      • King Goat

        It’s very likely this case is going to be decided (or should be) on Establishment Clause grounds, which precedent says “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another” (Larson v. Valente, 1982). Textually, Congress ‘shall make no law respecting an establishment of religion.’ Imagine if Congress made, and the President executed, a law which said “since Russian Communism is an anti-Christian movement, funds shall be appropriated for the Voice of America to broadcast evangelical Christian programming into Communist controlled nations.” Would that pass muster?

        • Fernando Teson

          I’m skeptical about the Establishment Clause claims. I don’t believe foreigners unconnected with the US are protected by the Establisgment Clause. Imagine that an alliance of Muslim states declares war on the US. Their leaders incite Muslims all over the world to join that war. I think the US could prohibit the entry of Muslims without violating the First Amendment.

          • King Goat

            I don’t think it’s about foriegners being protected, it’s about Congress being prevented from engaging in such activity. There’s a standing issue there possibly, though there’s probably ways around that.

      • M Lister

        HI Fernando,

        Well, as a matter of _constitutional law_ I’m not sure this follows. My point was that _none_ of these things have a basis _in the text_ of the constitution. That means they are, essentially, common law precedents. And, as such, they can be overturned whenever the appropriate court (here, of course, the supreme court) thinks they are not right, without that being an affront to _constitutional_ law at all. Now, I don’t necessarily think this should be done lightly. I think that norms and stability are good and important for law. But, those have already be thrown overboard here. And, in common law interpretation (which we have here, as we are not dealing with anything based in the text at all) it’s normative and historical argument that wins. I don’t know that what I think should happen will happen. I’d certainly not bet much on it. But if it does happen, it’s not an affront to the constitution, since the existing precedents are not based on the constitution. (If they were, sections of it could be cited. But of course, they cannot.) If we’re going to claim this is about _constitutional_ law, there ought to be some bit of the constitution that can be cited, but of course none can be cited in favor the the precedents at issue here.

        (I’ll add that, current constitutional law suggests that current citizens have fundamental rights to form families as they wish. [As you know, I have also argued this as a matter of political morality, not constitutional law.] This executive order will violate that right. So, I don’t see why _that_ argument isn’t at least as strong as any one the Trump administration will make.)

        • Fernando Teson

          So, Supreme Court precedent that is not traceable to text is worth nothing? New to me.

          • M Lister

            Worth nothing? No – but I don’t say that. But, this was supposed to be about _constitutional law_, and a precedent that can’t be in some way traced to the text will then have to stand on its own feet, so to speak, and I’m not sure what there is to say for the precedents you mention. As a matter of constitutional law, they either need some sort of textual support, or need a good argument for them, and I haven’t seen the argument, either in general (in the actual cases, if you read them, the arguments are shockingly weak, if you can find something worth the name of “argument” at all) and certainly haven’t seen the argument here. Given that you seem to accept that there’s no connection to the text (if you don’t accept this, where is the connection?) then what is the argument, both for accepting the precedents, or for considering them part of “constitutional law”, as opposed to a (poorly reasoned) common law precedent? That’s what supporters of this need to show, but haven’t. If they haven’t shown it, then the case for cynicism isn’t met on these grounds. (It may, of course, be met on others.)

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