Originalism

Thu Feb 11 09:21:15 PST 2010

But then the people of 2240 would either have to chuck the whole thing 
as unworkable or make such modifications as they need, keeping what they 
can.  The middle ground is what we 'enjoy' today:  the right to amend, 
formally (slow, cumbersome, next to impossible for most notions) or 
continue with a rolling constitutional convention, sometimes called the 
Supreme Court.  So what if there's an element of smoke and mirrors.  I 
like smoke and mirrors, don't you?

Example #1 of S & M (not to be confused with any more-playful other 
term):  The Court is our official legal policy-making body.  It must use 
to promote its agenda the vehicle of a case or controversy cast in 
traditional lawsuit forms, however.  By the time such matters reach the 
court, the fate of the individual litigants has been cast to the winds 
in favor of overriding national policy.  You think you're going to win 
or lose your case on the merits only to find out that higher powers have 
run away with your cause.  That's pretty impressive smoke and mirrors, 
turning individual lawsuits into national policy binding on 
non-litigants, as Lincoln noted in his First Inaugural re: the Dred 
Scott decision that he couldn't swallow.

rs

Christopher Green wrote:
> We've probably had this conversation before, but of course the Founders can
> bind us, if they can convince us to take an oath to be "bound" by "this
> Constitution," per Article VI.  See http://ssrn.com/abstract=1227162.  If my
> op-ed today were somehow able to command the oaths of the denizens of 2240,
> that'd do the trick, I think.
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Calvin Johnson
> Sent: Thursday, February 11, 2010 9:54 AM
> To: Eric Segall; conlawprof at lists.ucla.edu
> Subject: Originalism 
>
> I dont think Founders can bind us.  They were trying to solve the critical
> problems of summer of 1787, which they knew well, but they did not even know
> January 1788 because it had not happened yet.  They appealed eternal
> verities all the stime: the blessings of heaven on slavery, the wisdom
> mercantalist economc restrtictions on imports, the necessirty that women
> were like children within the household, and the truth that if you allowed
> people without property to vote, they would sell their vote to foreign pwoer
> at too low a price  because they had no stake.  None of these eternal
> verities have much appeal.   
>          Anything they cared about was dead by the time of the 11th
> Amendment when they decided that not all the debts of the Revolutionary War
> had to be paid, and honest suppliers including the Angel of Savannah could
> be stiffed (Chisholm), and by the Jay Treaty which we could not regulate
> commerce with the British, although that the concrete program underneath the
> commerce clasue.   Once Hamilton and Madison broke their alliance, there was
> no Constitutional Movement. 
>    Try your hand.  Write on op-ed page on the most critical issues of today.
> Appeal to tradition, eternal verities, econonomics or whatever.   Now while
> you are at it, settle the problems of 2240, whatever they are.  Hard isnt
> it?
>       The Court is doing a lot of Barbie Dolls in the archeological dig:
> putting their values into the history and then pretending the Barbie Doll is
> binding on u.   The Constitution overall for instance is a visciously
> anti-state document, so taht if you are doing deductions from teh original
> design or between the lines, the decision should go against the state.  The
> states rights are the right to veto border changes and the 2d Amendmetn and
> this court hypocritically seems to be set to undo the second one.  
>
> ________________________________________
> From: Eric Segall [esegall at gsu.edu]
> Sent: Thursday, February 11, 2010 8:30 AM
> To: Calvin Johnson; CONLAWPROF at lists.ucla.edu; Mark.Scarberry at pepperdine.edu
> Subject: RE: McDonald v. Chicago
>
> You said, "But I thought this was not an evolutionary court but rather an
> originalist one." I assume you were being sarcastic because of course the
> Court has never been an originalist one and this last one or two is no
> exception. Five Justices joined Kennedy's "living Constitution" passage at
> the end of Lawrence, prohibitions on affirmative action are
> anti-originalist, and the idea that corporations have the same first
> amendment rights as citizens . . . well . . . you know. There are of course
> numerous other examples from this and every other Supreme Court since at
> least Reconstruction and probably before.
>
> This is not meant as a criticism of your post but maybe someday the Academy
> will never have to use the word originalism again as a descriptor of a
> decision generating device (and that goes for all those on the left who all
> of a sudden feel they must or can justify Roe, etc., on originalist
> grounds).
>
> Sorry for the Rant,
>
> Eric
>
>
>   
>>>> Calvin Johnson <CJohnson at law.utexas.edu> 02/10/10 7:53 PM >>>
>>>>         
> I suppose we could say the same thing about search and seizure.  States had
> a right to prosecute criminals with ill gotten evidence before Map v. Ohio.
> It does better to call it an mmunity to allow prosecution, because it is not
> that we allowing the states to do it with pride as a RIGHT but rather that
> we tolerated under preMap 4th A.       The Fourth Amendment was not written
> to allow the states to prosecute with ill gotten evidence.
>     So on establishment, the A is written to prevent the Federal Governmetn
> from paying for Episcopalian ministers, even though it tolerated
> Establishment in the States.
>
>             The preservation of state militias, which is what Madison is
> responding to in the 2d is a state right.   To impose the 2d against the
> state is to rip open the 1787-89 purpose of it.   Now if this court is
> willing to let the Constitution evolve away from the sacred moment, then I
> can think of many rights that they need to be protected by evolution.  But I
> thought this was not an evolutionary court but rather an originalist one.
>
> Calvin H. Johnson
> Andrews & Kurth Centennial Professor of Law The University of  Texas  School
> of Law
> 727 E. Dean Keeton (26th) St.
> Austin, TX 78705
> (512) 232-1306 (voice)
> FAX: (512) 232-2399
> Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
> For reviews, chapters, discounts and news on Johnson, Righteous Anger at the
> Wicked States: The Meaning of the Founders Constitution (Cambridge
> University Press 2005) see
> http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/
> From: Scarberry, Mark [mailto:Mark.Scarberry at pepperdine.edu]
> Sent: Wednesday, February 10, 2010 12:03 PM
> To: Calvin Johnson; CONLAWPROF at lists.ucla.edu
> Subject: RE: McDonald v. Chicago
>
> In response to Professor Johnson:
>
> The Establishment Clause (pre-incorporation) did not just prohibit a federal
> establishment of religion; it prohibited Congress from legislating with
> respect to ("respecting") an establishment of religion. That protected the
> states from congressional interference with whatever they might choose to do
> with regard to establishment or nonestablishment of religion. That seems to
> me to be rather clearly a matter of preserving the right of the states to do
> as they might choose. Of course you can argue that such a right should be
> categorized as an "immunity," but if we are going to start distinguishing
> Hohfeldian "immunities" from Hohfeldian "claim rights," we'll be doing an
> awful lot of analysis. In any event, a provision that provides an immunity
> to a state or person who is seeking the immunity could properly be said to
> have been "written for" that state or person.
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
>
>
> ________________________________
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Calvin Johnson
> Sent: Wednesday, February 10, 2010 9:04 AM
> To: CONLAWPROF at lists.ucla.edu
> Subject: FW: McDonald v. Chicago
>
> To: William Funk
> Subject: RE: McDonald v. Chicago
>
> The Establishment clause certainly had an immunity for states, but it was
> not written for states. Cant think of any way in which the prohiition on
> establishment was a state's right.  By sharp contrast, preservation of the
> state militia is a state's right.   Quite odd to interpret the 2d amendment
> against its primary intended beneficiaries.
> ________________________________
> From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu]
> On Behalf Of William Funk [funk at lclark.edu]
> Sent: Tuesday, February 09, 2010 7:54 PM
> To: CONLAWPROF at lists.ucla.edu
> Subject: RE: McDonald v. Chicago
> That the 2d Amendment originally was at least in part, if not totally, to
> protect state interests, rather than individual interests is not likely to
> stop its incorporation.  After all the Establishment Clause was originally
> to protect state interests, assuring that the three states with established
> churches would not have them disestablished by the federal government as
> well as assuring the remaining states that the federal government would not
> establish a church.  But this didn't stop the Establishment Clause from
> being incorporated.
> Bill Funk
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