The Constitution as Law Nested in Other Law

I am late to the party discussing whether the Constitution is best understand through the prism of “popular” or “elite” meanings.  There have already been fine contributions by Ilya Somin, Timothy Sandefur, Mike Ramsey and Mike Rappaport.

As Mike Rappaport has noted, he and I believe the Constitution is a legal document and thus legal rules will tell us how to determine meaning, including what degree we should look to evidence from popular as opposed to more technical meanings. I just wanted to add that there is substantial evidence from the Constitution itself that is was to be interpreted with legal rules. In that sense, it often cannot be understood without an elite sensibility, assuming we understand lawyers to be elites.

As we note in our article, Original Methods Originalism: a New Theory of Interpretation and the Case Against Construction:

The Constitution defines itself as the “supreme Law of the Land.” The fact that the Constitution was a legal document was not simply left to implication by the enactors but was set forth explicitly in the Constitution itself.

There are also specific indications in the text of the Constitution that the document would be interpreted according to legal rules. We provide some examples in our article. I want to add one more.

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Taking Political Advantage . . . And Then What?

By practicing racial prejudice regarding the fatal shooting of Michael Brown in Ferguson, Missouri, the Obama administration, Governor Jay Nixon, and the media stoke racial strife among Americans. Apparently they intend to bump the Democratic Party’s share of the black vote up yet another notch.

Reasonable observers cannot but take note when persons who know what they are doing promote judgments about a case before all the facts of that case have been put forward, and do so on the basis of race. That those promoting such strife are Democrats, that black Americans are their immediate audience, and that voter-registration tables have been set up among the demonstrators they help to mobilize, all raise the question: cui bono? Conscience should abhor the purchase of political advantage at the cost of further dividing American society along its starkest fault line.

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Justice Scalia, Ordinary Meanings, and Legal Meanings

Mike Ramsey, Ilya Somin, and now Tim Sandefur have been having a debate over whether the original meaning of the Constitution should be interpreted in accordance with the meaning as understood by the ordinary public or by people with legal knowledge.  I may have more to say about this next week, but for now I want to note a significant issue.

Under the original methods originalism position that John McGinnis and I defend in Originalism and the Good Constitution, the Constitution should be interpreted in accordance with the interpretive rules that would have been deemed applicable to it at the time of its enactment.  Since the Constitution is a legal document, we believe these interpretive rules are those that would have been applied to a legal document.  These legal interpretive rules would sometimes require that the ordinary meaning apply rather than a more technical meaning, but they would often require legally informed meanings and understandings to be employed.

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Remembrance of Things Past

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How persistent is memory, politically speaking? Machiavelli argued that “the memory of ancient liberty,” possessed by republican peoples, is tenacious, presenting an obstacle for a ruler bent on tyrannizing those long used to self-government. In chapter 5 of The Prince, he counseled harsh measures like wiping out the entire population as the only sure mode to exterminate the remembrance of things past. Instead of Carthage-scale eradication, the society in The Giver has found a new mode—seemingly kinder and gentler—by which to neutralize memory, thereby creating a pliant citizenry.

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Justice Sutherland’s Uncertain Trumpet

I still remember the thrill of reading Justice George Sutherland’s dissent in Home Building Loan Association v. Blaisdell.   In that case the majority of the Court allowed Minnesota to extend the time that homeowners could protect their mortgages from foreclosure even against the  terms of their contract. The decision flew in the face of the text of the Contract Clause, which provides that “No State shall impair the obligation of contracts. “ The Court’s reasoning was essentially that the emergency of the Depression justified the abrogation. Justice Sutherland wrote a devastating dissent, showing not only did the constitutional text prohibit Minnesota’s action but that the Framers foresaw the need to protect creditors precisely in times of emergency. In a course where almost all my fellow students celebrated the Warren Court, Justice Sutherland was my hero.

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The SEC and the Cascade of Evasions

SECA recent WSJ editorial, The SEC as Prosecutor and Judge, comments on the SEC’s hints that it will be shifting its enforcement of insider trading laws from the courts to administrative adjudications:

A year after vowing to take more of its law-enforcement cases to trial, Securities and Exchange Commission officials now say the agency will increasingly bypass courts and juries by prosecuting wrongdoers in hearings before SEC administrative law judges, also known as ALJs. “I think you’ll see that more and more in the future,” SEC Enforcement Director Andrew Ceresney told a June gathering of Washington lawyers, adding that insider trading cases were especially likely to go before administrative judges.

Ceresney undoubtedly thinks this will be efficient — not to mention advantageous in avoiding those pesky critters known as judges and juries.

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Return to the Barbaric

The President’s use of executive power outside and above the bounds of the Constitution is well known at this point. In policies ranging from the railroading of creditors in the auto bailouts, to Obamacare by waiver, eliminating key work provisions in the 1996 welfare reform legislation, Deferred Action for Childhood Arrivals, and to the informed suspicion that he will unilaterally legalize 5 to 6 million illegal immigrants, this President has entered a new realm of abuse of power. Resulting from the stress he’s placing on our constitutional order have arisen significant interventions that attempt to underline how and why we have arrived at this new dimension of executive power, even in the case of Congress there is an attempt to reclaim its authority, if only in a pusillanimous manner.

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The Sharing Economy as an Economy of Freedom

The so-called sharing economy has arrived. In this economy, the services sector has grown as information technology connects individuals who wish to provide services, such as transportation or gardening, with those who wish to buy them. Companies in this economy, like Uber and Airbnb, help match buyers and sellers but do not tend to employ the latter. Rather, people who provide services deal directly with their clients. By giving people more opportunities, the sharing economy also expands liberty.

Regulators and incumbents have already tried to prevent the disruptive entry of these new providers. A prime example is the battle against Uber. But a recent article highlights a set of social critics who dislike the sharing economy as a whole, and not just particular industries within it. Opponents of the sharing economy – and everyone quoted in the article who does not participate in this industry is a critic – presage attempts to regulate it by imposing burdensome work rules.

The article sketches the lives of a few people who make their living in this world. Although their stories are vivid, the article does not capture analytically the three great advantages of the sharing economy.

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The Case Against CIA [REDACTED] John [REDACTED]

CIA

I used to think I wanted the job security of the tenured professor but now I think what I really want is to run the CIA. Nothing, but nothing, gets those guys fired. John Brennan, for one, has retained his position after presiding over a formal, frontal assault on a coordinate branch of government. He has kept it after further mocking the principle of the separation of powers by redacting a Senate report on CIA interrogation practices so thoroughly that even already public material is blotted out.

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Contraceptives, Immigration, and the Great Libertarian Convergence

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A plausible interpretation of America and the world at the moment is that the imperatives of the 21st century global marketplace are so powerful they trump anything religious and political leaders say or do.

Techno-economic change does not, to be sure, trump anything and everything that nature might do. We recently had the near-miss of the stormy sun disrupting our electric grid and plunging us into the 18th century, and experts think there’s a 12 percent that could still actually happen over the next decade. That’s a lot more scary, if you think about it, than the possible long-term effects on the climate of anthropogenic global warming, although I’ll admit there’s an inconvenient truth or two there, too.

There’s also, of course, the disturbingly successful indifference of Putin and ISIS to the market, and the maybe more disturbing agility by which the Chinese manage to be both authoritarian nationalists and techno-cagey capitalists.

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