It would seem that much of the constitutional argument over Obamacare (and many other cases) centers over originalist vs. judicial activist approach. You have Scalia and Thomas on the one side arguing that we should look into what the Framers have intended when they wrote the Interstate Commerce Clause, and you have Breyer and Ginsburg on the other side citing Wickard case and arguing that the society has changed and the powers that it delegates to the government are different now.
Isn't it the case that while the people like Thomas Woods may favor originalist approach, people like Robert Murphy (based on his Chaos Theory book and his Market for Security lecture) would actually favor the "living breathing document" approach? I.e., doesn't it seem that the second approach actually is closer to the anarchist view of how the law would exist under anarchy, with "natural law" (or, at least, interpretation of it) changing as the society changes, up to individual professionals' interpretation? Plus, it seems that the anarchists should be more sympathetic to judicial activism theory, since it states that a judge should not hold to the letter of the law but must hold to what he considers to be just (such that if a statute violates natural law, he should decide opposite from what the statute says).
Am I right?
The U.S. Federal Constitution is a statist document so originalism vs. judicial activism is a false dichotomy.
My question is more along the lines of: which judicial philosophy should an anarchist logically be more sympathetic to?
Now, I know that Ginsburg, for example, is a liberal and thus pursues in some economic areas the liberal policies that we disagree with, from economic point of view. But from strictly legal point of view, doesn't it seem that her approach is closer to anarchist view of how the law should operate?
I am not talking about the Constitution only, btw. Scalia would argue that it is the job of any judge to interpret the law, not to rule of what he considers to be fair or just.
My justification for asking the above questions is that it is possible to live in a statist society but favor certain legal and economic developments that go along the line of one's anarchist or libertarian philosophy.
The purpose of a constitution is to limit future governments. It cannot do that if the future government can interpret the constitution however it pleases. There is no sense in having a constitution at all unless it is understood that it should be interpreted per original intent.
The same is true of any kind of legal document. What's the point of a contract if it's not going to be interpreted by the intent of the contracting parties?
Legislation isn't valid from an anarchist point of view - only natural common-law, in terms of which such questions of interpretation do not arise.
I suppose I have more sympathy for the originalist view, because at least that way the Constitution is actually being treated as if it might be a check on the power of the legislature and executive. How is the Constitution supposed to check the power of Congress and the President if its constantly being reinterpreted by the courts to endorse their policies? If the Constitution is to be effectively changed to reflect changing popular attitudes about it, shouldn't it be Congress with it's special majority requirements and ratification from 2/3 of the state legislatures etc that does it rather than 9 judges guestimating the winds of popular opinion up in their ivory tower?
Not that it's a perfect view, of course, because God knows the Founders intended for the Constitution to allow for slavery etc. :p
Minarchist wrote: The purpose of a constitution is to limit future governments. It cannot do that if the future government can interpret the constitution however it pleases. There is no sense in having a constitution at all unless it is understood that it should be interpreted per original intent.
I think that makes a lot of sense. (I couldn't find the "verify" button.) But here are a few caveats:
1. Why shouldn't the content of the law stay the same (unless amended), but the application of the law change with the society? For example, the Constitution states : "No cruel or unusual punishment". What does that mean? Well, why can't the understanding of what cruel and unusual punishment is change as the society's understanding of what is cruel and unusual changes? For instance, in the 18th century, ripping off one's limbs was certainly cruel and unusual. But, say, hanging, was not. So, by extension, the Framers would not consider the electric chair cruel or unusual.
On the other hand, today, people would consider hanging cruel and unusual, and perhaps the electric chair (or death penalty in general) as well.
In the 18th century, the concept of a free citizen did not include Blacks (as the judge presiding over Dred Scott case noted). But that definition has changed. In fact, nowadays, perhaps some consider fetuses as human beings as well (maybe because of the advances in science, etc.).
What is wrong with such "intermediate" approach?
2. If we accept originalism (whatever the answer to the first question is), what's up with Scalia's worship of precedents? It seems to me that Thomas is much more consistent with the originalist doctrine, no? If a court has erroneously decided 50 years ago that something is constitutional, while in reality it's not, why should we hold according to an erroneous decision (especially if the court was dominated by judicial activists)? Scalia portrays himself as such a great supporter of the originalism and going back to the Framers, but then he says: "We've been going with the Commerce Clause for such a long time now, there is no turning back", or "If someone found some evidence today that a case decision from 200 years ago was wrong, I would shrug. So what? We have moved on."
3. I heard Ginsburg say that "We the people" (I know, it refers to the States, but let's ignore that for now) that were back then are not the same "We the people" of today. It certainly does not include women, many minorities, etc. So, why should the modern "We the people" hold according to the same relationship with the government that "We the people" back in the day decided upon?
In some sense, the same argument can really be applied to every generation. The people of the 18th century delegated certain rights to the Federal Government. But people of the 21st century have never actively delegated those rights. So, why should the legacy of their ancestors (and in many cases, not even their ancestors) be binding upon them? (I suppose, ultimately, this is a legal and moral argument against minirchism, but that's another question.)
@FlyingAxe
Take the "cruel and unusual" language as an example. To interpret this by the authors' intent does not mean to limit it to whatever specific practices they considered "cruel and unusual" in the 18th century. If instead of "cruel and unusual" the Constitution read "punishments such as X, Y, and Z," then the meaning of the phrase per the authors' intent would be limited to those specific practices. But that's not the case.
Neither is it the case that "cruel and unusual" per the authors' intent means whatever we find cruel and unusual today. No, it means precisely what it says: no punishments which fall into the category of cruel and unusual (as those categories were defined by the authors). To really interpret the clause by the authors' intent would be to take all of the specific 18th century practices that we know they had in mind when writing this clause, and square them with any general principles they may have left us in their writing defining what it means to be a cruel and unusual punishment, and then to derive general principles in terms of which we could categorize any practice whatsoever as "cruel and unusual" or not. In reality, this is basically impossible.
...and that mess of an answer is why we need to be very careful in writing law. There should be no terms in the law which require a value-judgment to understand: e.g. cruel and unusual. Nor should abstractions and specifics be mixed. The abstract principles should be stated, and then the specifics should be stated separately and explicitly identified as a non-exhaustive list of instantiations of the abstract principles. They tried to do this with the Constitution, but there were too many mistakes.
The one that produces the preferable outcome. So: "Originalism" in context of U.S. law, as Woods suggests. "Judicial activism" in the other case, as Murphy suggests.
Minarchist wrote: To really interpret the clause by the authors' intent would be to take all of the specific 18th century practices that we know they had in mind when writing this clause, and square them with any general principles they may have left us in their writing defining what it means to be a cruel and unusual punishment, and then to derive general principles in terms of which we could categorize any practice whatsoever as "cruel and unusual" or not. In reality, this is basically impossible.
That is why I wrote that hanging was not considered to be cruel and unusual, while tearing limbs one by one was, and therefore, an electric chair may not have been considered cruel. You can find a way to explain that: for instance, a punishment that is cruel and unusual is one that leads to prolonged suffering; on the other hand, a quick, clean death is not cruel and unusual.
I definitely agree that the Constitution was written in a rather messy way.
There should be no terms in the law which require a value-judgment to understand: e.g. cruel and unusual. Nor should abstractions and specifics be mixed. The abstract principles should be stated, and then the specifics should be stated separately and explicitly identified as a non-exhaustive list of instantiations of the abstract principles.
You mean something like this? :)
Rabbi Ishmael says: There are thirteen rules by means of which the Torah is interpreted: 1. Inference is drawn from a smaller premise to a greater premise, or vice versa. 2. From the similarity of words or phrases in separate texts it is inferred that the law expressed in the one must also be applied to the other. 3. A comprehensive principle, as contained in one or two biblical laws, is applicable to all related laws. 4. When a generalization is followed by specification, the specification applies instead of the generalization. 5. When a specification is followed by a generalization, the generalization then applies. 6. If a generalization is followed by a specification and then treated again by a general term, one must interpret according to what the specification implies. 7. When, however, the specification or generalization is necessary for the sake of clarity, rules 4 and 5 do not apply. 8. Whatever is first implied in a generalization and afterwards specified to provide new information concerning it, is stated not only for its own sake, but to teach something additional concerning the general proposition. 9. Whatever is first implied in a general law and afterwards specified to prove another similar provision, is specified in order to alleviate, and not to increase the severity of that provision. 10. Whatever is first implied in a general law and is afterwards specified to prove another provision which is not similar to the general law, is specified in order to alleviate the severity in some respects, but to increase it in other respects. 11. Whatever is first implied in a general law and is afterwards specified to determine a new matter, cannot be applied to the general proposition, unless the text expressly states that it can. 12. An ambiguous word or passage may be interpreted from its context or from a subsequent expression in the text. 13. Similarly, when two biblical texts contradict each other, they can be reconciled only by a third text.
1. Inference is drawn from a smaller premise to a greater premise, or vice versa.
2. From the similarity of words or phrases in separate texts it is inferred that the law expressed in the one must also be applied to the other.
3. A comprehensive principle, as contained in one or two biblical laws, is applicable to all related laws.
4. When a generalization is followed by specification, the specification applies instead of the generalization.
5. When a specification is followed by a generalization, the generalization then applies.
6. If a generalization is followed by a specification and then treated again by a general term, one must interpret according to what the specification implies.
7. When, however, the specification or generalization is necessary for the sake of clarity, rules 4 and 5 do not apply.
8. Whatever is first implied in a generalization and afterwards specified to provide new information concerning it, is stated not only for its own sake, but to teach something additional concerning the general proposition.
9. Whatever is first implied in a general law and afterwards specified to prove another similar provision, is specified in order to alleviate, and not to increase the severity of that provision.
10. Whatever is first implied in a general law and is afterwards specified to prove another provision which is not similar to the general law, is specified in order to alleviate the severity in some respects, but to increase it in other respects.
11. Whatever is first implied in a general law and is afterwards specified to determine a new matter, cannot be applied to the general proposition, unless the text expressly states that it can.
12. An ambiguous word or passage may be interpreted from its context or from a subsequent expression in the text.
13. Similarly, when two biblical texts contradict each other, they can be reconciled only by a third text.
So, would you also agree that the term "unnecessary searches" was improper? For instance, in just decided case, Breyer argues with the majority whether strip-searching new inmates arrested for minor offenses, such as traffic violations, is necessary to make sure they don’t bring in contraband.
I find it somewhat strange that two groups of Justices are arguing whether the empiric evidence points to whether a certain group of people is currently likely or not to bring in contraband (Breyer’s approach).
On the other hand, I also find it strange to say that whether searching inmates is necessary or not should be determined by a particular prison’s authority (Conservative majority’s opinion). So now, the extent to which rights can be infringed upon is decided not by Supreme Court, but by some prison bureacrat?
What’s the solution? If you were to write the clause in the Constitution that prevented authorities from conducting an unncessary search, what would you write?
http://www.supremecourt.gov/opinions/11pdf/10-945.pdf