One More for Mssrs. Epstein and Yoo, Esq.
Folks, if you haven't looked at the back-and-forth between Richard Epstein and John Yoo on the "collision" between President Obama and the Supreme Court, you're missing something. Zowie. Two brilliant men, who--and, let us face it, in cyberspace, this is pretty rare--actually know what they're talking about.
While Richard and John are at their keyboards, may I put one more query?
You both say that the issues President Obama's new policies have raised--ObamaCare in particular--will take years to play themselves out in the courts. I'd like to ask about something that's happening right now. Who's winning the brightest young minds in law schools? The President or the Chief Justice?
When Antonin Scalia was raised to the high court in 1986, a noted law professor once told me, originalism was viewed with contempt at every major law school in the country. In the years since, Scalia, and Clarence Thomas, who joined him on the high court in 1991, have written such compelling opinions--mostly, alas, dissents--that you can no longer consider yourself a major law school unless you have at least a few originalists on your faculty. On one side, Chief Justice Roberts and Justices Scalia, Thomas, and Alito (and, from time to time, Justice Kennedy). On the other, President Obama and Justices Breyer and Ginsburg (and, almost certainly, Justices Sotomayor and Kagan). Here we find a genuine collision--a true clash of values. Whom do the best law students find the most impressive?
- Comment (11)
- · Quote
- · UnfollowFollow (3)
Comments :
Re: One More for Mssrs. Epstein and Yoo, Esq.
I like to think that the students are wrestling with Roberts in their heads, while they love Obama in their hearts. Obama had no serious academic writings of any kind, and his speeches mentioning the Constitution are empty -- and sometimes wrong, as with his claim that the Citizens United case overruled decades and decades of settled precedent on campaign finance laws. There is no real Obama theory of the Constitution, just ever more pushing against -- and past -- the Constitution's limits on the federal government's power over the economy and society.
The striking thing about constitutional law today is that the liberals on the Court are mostly playing defense. It is hard to detect any compelling new approaches toward the Constitution coming from them; they seem mostly bent on defending the Warren Court precedents and their extensions on things like abortion, affirmative action, and so on. Conservatives in constitutional law are the radicals, while the liberals are the defenders of the old order. Students will always be drawn to the challengers. So even when professors and students disagree with Scalia, Thomas, et al., they find the conservative/originalist arguments more challenging and fun to engage.
Re: One More for Mssrs. Epstein and Yoo, Esq.
Originalism also has to be taken seriously by professors and students because a majority of judges on the federal courts have been appointed by Republican presidents, and Supreme Court opinions are full of originalism. The Heller case, upholding the individual right to bear arms, is a great example: both Scalia's majority opinion and Stevens' dissent spent most of their arguments against each other on how to properly interpret the original understanding of the Second Amendment. So on this one, Peter and his Reagan administration pals can take great pride in changing the terms over the Constitution, just as they did in economics.
Re: One More for Mssrs. Epstein and Yoo, Esq.
I think that it is nice for John to throw down the gantlet in this fashion, for if there is not some fidelity to text, then where do we begin and why? But fidelity to text is not an easy comment co carry out. I never did like the Scalia opinion in Heller precisely because it read out of the decision all the language about the militia, which links the particular text back to the important provisions on the militia in Article I. It is also critical to note that the orginalist has to deal with elements that are not in the text, but which have to be implied for the text to make any sense. The moment that one says that any constitutional protection is not absolute, and few are, what are the limitations and where do they come from? Again that is also part of the Heller decision, where the Court read in a reasonableness limitation on the right to keep and bear arms. There is lots of room for difficulties under this approach. But there is no room for coherence with any approach that deals blithely with text, structure and context and begins with some level of aspiration tied to the times. The Progressive movement is driven to that approach because the constitution (or at least those portions that survived the Civil War, are written in that tone. Some radical rethinking is needed to make it compatible with the modern welfare state.
Edited on Jul 6, 2010 at 4:18pmRe: One More for Mssrs. Epstein and Yoo, Esq.
One for John and one for Richard:
John, you write, very kindly, of "Peter and his Reagan administration pals." Did I ever happen to mention to you that the speechwriters and the lawyers shared one long hallway in the Old Executive Office Building? And that in the office right next to mine toiled a warm, funny young lawyer named...John Roberts?
Richard, you write that Scalia's opinion in Heller "read[s] out...all the language about the militia." How do you mean that? Jeepers. Scalia's opinion in Heller devoted dozens of pages--as I recall, over 50--to a close, indeed minute, textual analysis of the Amendment. Christopher Hitchens couldn't have analyzed a text by Eliot or Orwell more closely, or more carefully, than Scalia analyzed the language preserving the right to bear arms. Do you mean to say you found the opinion high-handed? Or, granting the pains Scalia took, do you mean to argue instead that he made some particular logical or historical mistakes?
Re: One More for Mssrs. Epstein and Yoo, Esq.
Ironically, I think that Scalia's opinion was a case in which the history got in the way of the logic. There are a number of interrelated references in the text of the constitution that have to be taken into account to make sense of this oddly drafted clause. But Scalia was so concerned with the details that he found ways to treat the first half of the clause as precatory so that it did not inform the rest of it. Stevens (for once) did not make that mistake. As a general rule, prefer those interpretations that keep the entire provision into place to those that do not. And be wary of cases in which the words that are not written are given dominance over the words that are. Let me just give a couple of quick examples.
The clause reads:
First, the initial clause states the purpose for which the right is created, which is why the one is "necessary" for the other.
Re: One More for Mssrs. Epstein and Yoo, Esq.
Second, the talk about a "well regulated" militia ties back to the earlier provision on how that militia is to be regulated. The key provision in Article I, Section 8 reads:
The well regulation of the militia is intended to keep that distribution of powers alive between the state and the federal government.
Re: One More for Mssrs. Epstein and Yoo, Esq.
Third, to the security of a free State. The words free states are meant to refer to the individual states that are to be kept free. It is not a generalized claim about the importance of freedom of all states or nations. So read together, you get a clear picture that the federal government could not upset the basic balance in these provisions by disarming the population generally.
The point here for interpretation is this: generally you are better off reading the text in harmony than in looking at historical materials that talk about the meaning of individual terms as used without reference for the constitution. Nothing I have urged offends ordinary language. But it leads to a very different place from Scalia.
Edited on Jul 6, 2010 at 8:20pmRe: One More for Mssrs. Epstein and Yoo, Esq.
The students are hard to read in these cases. Their hearts go to the left, but their own sense of law as a system of rules cuts in the other directions. They are also troubled about the question of how to adjust to changed circumstances and how to read principled exceptions into rules. I do recall one instance that involved Elena Kagan when she taught at Chicago. A strong left wing student was worried about limiting speech in, I believe, a case involving potential national security risks. Some prominent public figure was on the stage. The student asked what part of the word "no" as used in the first amendment —— "congress shall make no law . . abridging the freedom of speech," don't you understand. Her reaction: he never learned that in my class. She was right to note this point. But the key issue is that protection against threats of force is not something that is read in because of historical evolution. It is read it because the logic of speech subjects it to the same limitations, with the same difficulties, to a general prohibition against the use of all conduct (including speech) to engage in, or help advance, force or fraud. The hard question here is the balance of error in cases where the restrictions have to precede the loss. The constitution forces that question on us, but does not give us a real answer, which is why the enterprise of interpretation involves integrating text with larger normative concerns.
Edited on Jul 6, 2010 at 8:35pmMay '10
Re: One More for Mssrs. Epstein and Yoo, Esq.
And now a peasant weighs in with a more general point.....Re Peter's point about originalism's previous contemptuous status and his query about who's winning now, aren't Sotomayor's and Kagan's attempts to portray themselves as, essentially, John Roberts in drag during their confirmation hearings an admission of shame and embarrassment at their previous living-Constitution, importance-of-empathy positions? Seems like a great big cry of "Uncle!" to this novice.
Re: One More for Mssrs. Epstein and Yoo, Esq.
As one peasant to another, Scott, you know what? You have a darned good point there.
Now if Sotomayor and Kagan will only cry "Uncle!" for John Roberts as readily as they did for the Senate Judiciary Committee.
May '10
Re: One More for Mssrs. Epstein and Yoo, Esq.
Richard Epstein:
The clause reads:
First, the initial clause states the purpose for which the right is created, which is why the one is "necessary" for the other. · Jul 6 at 8:15pm
If the right of individuals to bear arms was "created" only to enable well-regulated militias, then that Amendment seems odd.
That interpretation seems to imply that the right exists for the collective, rather than for individual citizens. Obviously, individuals have a right to protect themselves and not only their communities. The Founders surely understood this.
More to the point, the Founders clearly express that rights precede government; that government exists to protect rights, rather than to create them. Does this philosophy not apply to the 2nd Amendment? Am I to believe that the government invents and bestows this right upon me? If the right to bear arms precedes government, then it cannot exist for government. It cannot be dependent upon society with my fellow citizens if the right precedes that society.
What am I missing?