Rockwell Gets the Constitution Wrong
Here. His conclusion: "That is, McCain was born in a foreign country, and therefore not eligible to be president, according to the Constitution."
Two points:
1) You bet if Ron Paul had been born in the Panama Canal Zone, it would be a "MSM conspiracy" even to bring the issue up.
2) In any case, the Constitution doesn't say, "The president cannot have been born in a foreign country." It says the president must be a "natural born" citizen. But it doesn't say what "natural born" means! It could mean, "Born in a US state." Or, "Born in a US state or territory." Or, "Born to American parents."
Let me tell you, folks, if this goes to court the last interpretation is going to win, because the point of the clause was to make sure the president had no foreign allegiance, and the idea that McCain being born on a US military base in Panama makes him a likely agent of Panamanian interests is silly.
This shows the problem with someone like Ron Paul calling for an originalist interpretation of the Constitution. There just isn't any unambiguous, original interpretation available. It's like trying to pick up an 18th-century cookbook, filled with unfamiliar utensils and ingredients and obscure directions, and cook from the recipes with "no interpretation" allowed. It can't be done.
Two points:
1) You bet if Ron Paul had been born in the Panama Canal Zone, it would be a "MSM conspiracy" even to bring the issue up.
2) In any case, the Constitution doesn't say, "The president cannot have been born in a foreign country." It says the president must be a "natural born" citizen. But it doesn't say what "natural born" means! It could mean, "Born in a US state." Or, "Born in a US state or territory." Or, "Born to American parents."
Let me tell you, folks, if this goes to court the last interpretation is going to win, because the point of the clause was to make sure the president had no foreign allegiance, and the idea that McCain being born on a US military base in Panama makes him a likely agent of Panamanian interests is silly.
This shows the problem with someone like Ron Paul calling for an originalist interpretation of the Constitution. There just isn't any unambiguous, original interpretation available. It's like trying to pick up an 18th-century cookbook, filled with unfamiliar utensils and ingredients and obscure directions, and cook from the recipes with "no interpretation" allowed. It can't be done.
I find it interesting that in arguing against Originalism, you yourself make an Originalist argument.
ReplyDeleteWhat I want to know is, since you supposedly reject the idea of interpreting the text in light of its original public meaning, what do you propose instead? Given the existence of the Court, it has to have some methodology for resolving disputes. Should judges just make things up to suit their policy preferences? Should they never rule on constitutional matters at all?
Once you start looking at the other options, you realize that in order for the document to work at all, it has to have a fixed meaning, and that the only way that can happen is if you stick to the meaning the words had originally. Consequently, Originalism is obviously the correct methodology, and more importantly, is the methodology that most constrains the actions of the government -- an outcome I'm sure a libertarian such as yourself will appreciate
Finally, I should point out, that despite persistent claims by people such as yourself that "there isn't evidence" to make these decisions. No one has ever been able to actually find a clause that upon thorough historical examination didn't turn up ample evidence of the meaning of the terms.
"Once you start looking at the other options, you realize that in order for the document to work at all, it has to have a fixed meaning, and that the only way that can happen is if you stick to the meaning the words had originally."
ReplyDeleteYes, for Constitutions to work as advertised, it would have to have a fixed, unambiguous meaning. But since that is impossible, the correct conclusion is that constitutions cannot work as advertised -- and, lo!, history shows they don't! -- not that we should fantasize some unambiguous, original interpretation is available to us.
"Once you start looking at the other options, you realize that in order for the document to work at all, it has to have a fixed meaning, and that the only way that can happen is if you stick to the meaning the words had originally."
ReplyDeleteYes, for Constitutions to work as advertised, it would have to have a fixed, unambiguous meaning. But since that is impossible, the correct conclusion is that constitutions cannot work as advertised -- and, lo!, history shows they don't! -- not that we should fantasize some unambiguous, original interpretation is available to us.
"No one has ever been able to actually find a clause that upon thorough historical examination didn't turn up ample evidence of the meaning of the terms."
ReplyDeleteIn the original US Constitution, what should happen when a tie existed in the electoral college for president, Congress is tied, and the old president is leaving office? (Answer: The Constitution failed to specify this at all!)
"Finally, I should point out, that despite persistent claims by people such as yourself that "there isn't evidence" to make these decisions. No one has ever been able to actually find a clause that upon thorough historical examination didn't turn up ample evidence of the meaning of the terms."
ReplyDeleteOh, and although it is often possible to find evidence for what a particular founder meant by some clause, that in no way reveals what "the founders" meant by it, since often they had very different intentions, and the wording was intentionally left vague so that everyone could sign while hoping that his interpretation would prevail. (Think of something so impossibly vague as the "general welfare" clause!)
BTW this is "bob" posting! I am on my wife's computer and don't want to mess with her settings by switching over...
ReplyDelete=============
Gene,
Once again in your zeal to destroy all that remains of US freedom fighters, you come off as silly. "mc" beat me to the punch, but it is a riot that you rip the originalist interpretation standard right after you use it to explain your take on the situation.
No matter what we do, someone as clever as you will come up with ambiguous situations that require a judgment call--that's why there will always need to be judges to apply the law, even in a Rothbardian world where you would be Karen De Coster's gardner.
But that's not the point.
The point is, when we're trying to understand what particular words in the Constitution mean, do we ask, "What do they mean now?" or do we ask, "What did they mean back then?"
The answer is the latter, according to the original intent people.
Again, someone who espouses a defensible version of this doctrine simply means it the exact way you applied it yourself in this blog post. This is the epitome of when the original intent is necessary--when the written words themselves are ambiguous, and so yes you have to "get in the heads" of the writers and wonder what they meant by those words.
Bob (not Rachael Anne!)
Gene,
ReplyDeleteI wanted to elaborate. You are, I believe, ripping people who endorse a particular interpretation of the Constitution. Now as a market anarchist, obviously I agree with you that people who get riled up about the US Constitution are goofy, especially if they actually think constitutions (lowercase "c") are a good defense against governments.
But the argument you're using would also take out any sort of commonsense approach to contracts, not just contracts between governments and their citizens.
This is contrived (my examples usually are) but this is what I have in mind: Let's say you and I are drinking, and I start bragging about how jacked I am. I say that I can curl my brother. You say no way. Before you know it, we've written up a contract on a piece of computer paper, which says, "If Bob Murphy can curl his brother 3 full times the way a weightlifter curls free weights in a gym, and his brother doesn't help him by holding on, then Gene Callahan will pay him $10,000. Otherwise Bob Murphy will pay Gene Callahan $1,000."
So after we agree on that, you are sure you're going to win. You've met my brother at my wedding, and know he's got to be at least 150 pounds. No way I'm curling him 3 times.
Ha ha, I pay my parents $5000 to adopt a kid from the tribe that Angelina Jolie favors, and I curl the 20 pound immigrant three times in front of you. Bam! Pay up, sucker.
Now according to the strict letter of our contract, I win. But I could totally see a judge saying you won, because when we wrote the contract, the term "Bob's brother" referred to my original 25 year old brother, not the toddler from Africa.
Now maybe this isn't actually the correct ruling; I don't know, I'm not a jurist. But I think if someone were to object to it, it would be silly to argue (as you have done here) along the lines of, "It's pointless to try to get in someone's head and figure out what they meant by those words. We can't know that. All we have are the words themselves."
OK so forget the constitution stuff. How do you feel about my new example?
BTW folks I do curl 40 pounds as part of my normal routine. (This physique is earned, not God-given.) I have never tried more than that. Maybe 150 pounds isn't that hard, but I would be surprised if I could do it.
ReplyDelete"Once again in your zeal to destroy all that remains of US freedom fighters, you come off as silly."
ReplyDeleteSorry, Bob, it's the originalist interpretation that's silly, because there just isn't any single, original meaning. Remember, I've spent 1 1/2 years immersed in the history of this period writing my dissertation, and I can say with absolute certainty that there is no single thing the founders meant by, for instance, "no law abridging the freedom of speech." Look at the difference between Hamilton and Madison on what the general welfare clause meant!
'The point is, when we're trying to understand what particular words in the Constitution mean, do we ask, "What do they mean now?" or do we ask, "What did they mean back then?"'
And there just is no such single meaning on any controversial point of constitutional law. Of course, when we say, "The president serves for four years" we can get a pretty unambiguous meaning. But no one disputes those points.
Consider this: The Virginians were sure they were signing a constitution that guaranteed an agrarian society. The northern manufacturers thought they were signing one that would promote industry. The Constitution meant different things to different founders.
Gene, Gene, Gene... Whatever you did to deal with the ambiguous "natural born citizen" clause, is what I'm calling "originalist interpretation." If that's not the way Robert Bork or Jonah Goldberg uses the term, OK that's fine, I don't know the literature and I apologize for the confusion.
ReplyDeleteBut whatever it is you did to make a point about how to apply "natural born citizen," or for that matter how I dealt with my hypothetical scenario about curling my brother, is what I'm defending. Yes, you can never get inside the writers' heads, and even if you could they might mean something different. But that observation doesn't invalidate what you did in your blog post, or how I dealt with the hypothetical bet.
This is similar to our argument over Popper. I think his point of view sheds a lot of light on the scientific process, whereas you think that his books alone haven't fully captured everything. So you say he's an idiot and offers nothing of value, whereas I say he didn't offer quite the whole story.
Same deal here. Yes, "original intent" doesn't solve everything, and if Bork et al. say that it does, they're wrong. But I think it's an overreaction to say it's dumb and useless. Of course you have to do what you can to understand what the people signing the thing had in mind.
NOTE: I MADE A LONGER POST THAT DISAPPEARED. IF IT SHOWS BACK UP, I WILL HAVE ANSWERED TWICE.
ReplyDeleteBob, would you try to defend a literal interpretation of the Bible by pointing out that a few lines can be taken literally? No, Biblical literalism means holding that the whole thing must be taken literally.
Just so, holding that sometimes decisions should be made with the help of 'original intent' certainly does not mean one has embraced originalism! If it did, there would be no controversy, since no one suggests that the founders intentions are always irrelevant! The idea my method of deciding "McCain vs. Rockwell" is inconsistent with my critique of originalism is so ridiculous that, frankly, I couldn't even figure out what mc was talking about in his first post.
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Mr. Murphy:
ReplyDeleteYour insistence on comparing the contract in your hypothetical analogy to the constitution is flawed on several counts.
But most importantly: In your hypothetical contract bet scenario, a judge would have solid empirical evidence to confirm the identity of your brother at the time of your bet with Mr. Callahan, as you mentioned yourself.
(Though I don't even know if this hypothetical bet contract of yours is even enforceable by a judge either way.)
No such opportunity with the constitution. With the more nebulous phrases like "general welfare," there's absolutely no way to determine what the writers "intended" when they wrote those words. (Last time I checked, time traveling psychoanalysis hasn't been invented yet.)
Thus getting us back to Mr. Callahan's original point that teh entire concept of a government constitution per se is inherently flawed.
Now, it looks like I got some World of Warcraft shopping to do...
The answer to this riddle folks is to understand what an "unnatural" citizen might be.
ReplyDeletePerhaps the Founders anticipated test tube babies. This would be an exact case of a non-natural born citizen. But if the physical means and location of inception can be the test, in terms of whether a test tube was used, then perhaps the same can be said for birth in terms of a non-US geographic location. In this sense it is unnatural for a baby born outside the US to be a "natural" citizen. Thus,McCain is cooked, Callahan's argument is cooked, Rockwell is right again!
OK very quick response to rdk: You say that Callahan's original point was about a government constitution, and I don't think it was. His objection had nothing to do with statism. It would also apply to a contract written between two parties in the late 18th century, and now the heirs were arguing about it.
ReplyDeleteNow to Gene: I don't know how else I can say this. I am a supporter of an "originalist" interpretation of the Constitution. What do I mean by that? Well, for example, when we come to ambiguous words, how do we figure out what to do? Let me quote a true scholar who has studied this more than I have:
[The Constitution] says the president must be a "natural born" citizen. But it doesn't say what "natural born" means! It could mean, "Born in a US state." Or, "Born in a US state or territory." Or, "Born to American parents."
Let me tell you, folks, if this goes to court the last interpretation is going to win, because the point of the clause was to make sure the president had no foreign allegiance...
That is all I mean by saying I support an originalist interpretation. I think we should resolve disputes over the meaning of a written contract by doing exactly what you did above.
OK, now I think you are aware of that, and are objecting to my description of this stance as an "originalist interpretation." You say:
Just so, holding that sometimes decisions should be made with the help of 'original intent' certainly does not mean one has embraced originalism! If it did, there would be no controversy, since no one suggests that the founders intentions are always irrelevant!
Hold on there, tiger. You are incorrectly using your existential and universal quantifiers (or something).
When Ron Paul (or Robert Bork or Rush Limbaugh) say they are for "original intent," they are saying that to oppose the people who want to interpret the Constitution in ways that are clearly and unambiguously at odds with what the Founders intended. Both Virginians and northern manufacturers would've soiled their britches if they saw what the federal government was doing today, with the blessing of "progressive" justices. The original intent people are opposed to the "living document" people.
OK I think you and I would agree with that.
Now then, I think your point is that RP et al. are wrong in trying to make such a decision the basis of their whole approach to the Constitution. For an analogy, if I said I opposed socialism because it would lead to human misery, that doesn't mean utilitarianism is the correct moral philosophy. Right? I.e. just because you sometimes use original intent to decide an issue, doesn't therefore make it the guiding principle?
I guess I get your point, but even so, when RP says he supports an originalist interpretation, he means what I said above, i.e. as opposed to a progressive, socially enlightened interpretation. I don't think he's saying that's the essence of his being.
Let me ask you this, Gene. Could you have also "blown up" Ron Paul by digging up a quote where RP says he favors a strict constructionist approach to the Constitution? I mean, why can't the slippery ob-gyn make up his mind?! Does he support an originalist interpretation or a strict constructionist?! Dang politicians!
Also, the "general welfare" one is okay, I guess, but your example of what the various parties thought they were getting is irrelevant. If I sign a contract with you to swap baseball cards, it's possible that we both think we've gotten the item that will appreciate more quickly in terms of market value. That has nothing to do with how a judge should interpret the contract, if the wording is ambiguous.
The idea my method of deciding "McCain vs. Rockwell" is inconsistent with my critique of originalism is so ridiculous that, frankly, I couldn't even figure out what mc was talking about in his first post.
I don't know what to say. I understand immediately what mc was getting at, because I thought it too. I am sorry you did not perceive your own contradiction--if you had, you presumably wouldn't have written it--but I don't see why your inability to see it renders it ridiculous... (ha ha)
"I don't know what to say. I understand immediately what mc was getting at, because I thought it too. I am sorry you did not perceive your own contradiction--if you had, you presumably wouldn't have written it--but I don't see why your inability to see it renders it ridiculous..."
ReplyDeleteWell, Bob, as I said, there is no contradiction. It's just as though someone said, "You SAY you're not a Biblical literalist, but when asked about a passage that says 'Jonah walked down the road,' you interpret it to mea 'Jonah walked down the road.' Gotcha!"
"Both Virginians and northern manufacturers would've soiled their britches if they saw what the federal government was doing today, with the blessing of "progressive" justices. The original intent people are opposed to the "living document" people."
And I say it doesn't matter what they would have soiled! The originalist interpretation is generally unavailable in would never be followed if it was. (People are never, in their political affairs, going to be bound by some "musty document" that thwarts their deeply held opinions.)
And Bob, how does your originalist interpretation propose to handle something like the general welfare clause, where it is clear that this was intentionally left as a fuzzy, "fill-in the-blanks" exercise for future generations? No fair saying, "Well, of course, there are a few exceptions," since the general welfare clause has been perhaps the foremost open door for expanding federal government. (Inter-state commerce being perhaps the other candidate.)
ReplyDeleteAs I said, no one has any problem with "The president is elected every four years." Everyone is fine with an "originalist" interpretation of that one -- which is why, as I noted, it's ridiculous to cite one use of originalist interpretation as making someone an originalist.) It's precisely the tough ones where the controversy lies, and if the scheme can't handle them, its vacuous as a constitutional doctrine. (Although fine as an occasional interpretive aid!)
Gene,
ReplyDelete(1) I grant you that, in your mind, you did not commit a contradiction. I was just remarking that I thought your defense of, "I didn't even get what he meant!" was funny. It reminded me of when students would complain on their evaluations about me as a teacher, that my test questions were dumb because they didn't even understand what I was asking.
(2) You keep denying that there are people who oppose what the Founders meant, even when it was crystal clear. But of course there are plenty of such people. And it is because of them, and their own proposed interpretations of the Constitution, that led right-wingers to say they support an originalist interpretation. This means that you should approach the document with the idea of trying to understand what the signers had in mind.
Gene, again, let's forget the Constitution. Notwithstanding your objections, I have no problem saying that a judge should adopt an "originalist" interpretation when looking at a contract written 100 years ago. Now what I mean by that might seem so obvious to you that I shouldn't bother inventing a term for it, but I would need to invent such a term if there were a predominant school of legal theory that thought the people signing the contract were evil racists and so their views were irrelevant.
(3) This doesn't mean your position is wrong, but the particular choices you are making to illustrate your view don't really work. In fact, they fit in perfectly with my view. I'll deal with the Bible example and then the general welfare clause.
Bible: Yes, let's say I subscribe to a literal interpretation of the Bible. Now there are passages in the Bible that are contradictory, or at least appear to be. (E.g. did Judas hang himself or did his guts spill out on a field?) Now obviously when you ask me to deal with that sort of thing, I can't simply refer to the literal text, since the literal text contradicts itself. So I would have to do something else when interpreting those passages. Now then, have I just blown up the very coherence of the "literal interpretation" of the Bible? Or, is that still a very good way to describe a fundamentalist Christian, since there are so so many people running around saying the Bible is just a bunch of metaphors?
General Welfare: We solve this by original intent, baby. First, the Founders clearly could not have meant that the federal government can do anything it wants, so long as it helps people. Otherwise the rest of the document would be either superfluous or contradictory. Second, if we want to know exactly what they had in mind, then we could benefit by reading their exchanges, the Federalist Papers, analyses of other documents at the time to see what they meant by "general welfare," etc. So far from blowing up my position, this beautifully illustrates it.
The originalist interpretation is generally unavailable [and] would never be followed if it was. (People are never, in their political affairs, going to be bound by some "musty document" that thwarts their deeply held opinions.)
When you say it's "unavailable," do you mean we can't all agree on it? Because we can certainly always try to resolve an issue by appealing to the intentions of the writers.
Finally, your last point may be true but it is totally irrelevant to this argument. You're simply saying, "And anyway, constitutions are stupid!" That may be true, but it has nothing to do with whether an originalist interpretation is coherent or not.
"You keep denying that there are people who oppose what the Founders meant, even when it was crystal clear."
ReplyDeleteNo, I never denied that. What I actually said was that there is no one (serious) who says we should never pay attention to what the founders meant. This is the same mistake you and mc have made from the start, and the reason I couldn't conceive of why someone thought there was some contradiction.
Both you and mc seem to take the line, "In this one instance you used an originalist interpretive technique, therefore you are totally committed to it!" That is nonsense.
There are many people, not originalists at all, who hold, "We should go with the founders' original intent, unless there is a good reason not to."
When is there a good reason not to? I just gave an example that works for me a couple of posts up.
Your example of the Bible has nothing to do with how I was using it as an example. (I was saying interpreting one passage literally does not commit one to interpreting every passage that way.)
"General Welfare: We solve this by original intent, baby. First, the Founders clearly could not have meant that the federal government can do anything it wants, so long as it helps people."
Nice bit of a priori history. Unfortunately, attempts to do history this way usually result in nonsense. By the general welfare clause, Hamilton clearly meant establish high tariffs, create a national bank, build dams, roads and bridges, and pretty much whatever else promoted industry. Why should Madison's "original intent" triumph over Hamilton's, except that you hope his will win?
"Second, if we want to know exactly what they had in mind, then we could benefit by reading their exchanges, the Federalist Papers, analyses of other documents at the time to see what they meant by "general welfare," etc."
We could, huh, but no real need to do so, since you've already worked out a priori what they must have meant? Unfortunately, if you actually did read this material, you'd find not an original intent, but a wealth of original intents.
mc wrote: "Given the existence of the Court, it has to have some methodology for resolving disputes."
ReplyDeleteI wonder if either of my critics in this thread are aware that the power of the Supreme Court declare laws unconstitutional is not in the Constitution, and is the result of Marshall's "judicial activism"? So someone demanding justices follow "original intent" ought to demand that they stop declaring laws unconstitutional at all!
Gene wrote:
ReplyDeleteI wonder if either of my critics in this thread are aware that the power of the Supreme Court declare laws unconstitutional is not in the Constitution, and is the result of Marshall's "judicial activism"? So someone demanding justices follow "original intent" ought to demand that they stop declaring laws unconstitutional at all!
Wow. Now I am so far beneath you, that you've stopped talking to me, and are addressing your points to the audience?
For what it's worth, I did indeed know that the Constitution didn't explicitly say the Supreme Court is to rule on the constitutionality of laws. And you're right, if it really does appear that this power is inconsistent with the original intent of the Founders, then a consistent original intent person should say it is judicial activism.
I don't see why I should be embarrassed by that. E.g. I didn't ever say in this thread that justices ought to use original intent when throwing out unconstitutional laws, right?
Oh wait, you're not talking to me anymore...
[Gene, the following may get a little confusing, so I'm going to label what my words were and then yours... I.e. you quoted me and then responded, and I want to respond to that whole thing, so I need to put in our names to avoid confusion. -- Bob]
ReplyDelete=========================
Quoted Bob: "You keep denying that there are people who oppose what the Founders meant, even when it was crystal clear."
Gene answers: No, I never denied that. What I actually said was that there is no one (serious) who says we should *never* pay attention to what the founders meant.
Bob Now: No Gene, that is not at all what you said. You said precisely the opposite, here:
Quoted Bob: The point is, when we're trying to understand what particular words in the Constitution mean, do we ask, "What do they mean now?" or do we ask, "What did they mean back then?"'
Gene Answered: And there just is no such single meaning on any controversial point of constitutional law. Of course, when we say, "The president serves for four years" we can get a pretty unambiguous meaning. But no one disputes those points.
Do you see? You just said in the above quote, that some parts of the Constitution are unambiguous, but that no one disputes those points. You contrasted this with the "controversial" points. So in that quote above, you are saying if we are currently arguing about something in the Constitution, it's because we disagree on what the Founders meant.
If you were correct, then I agree, the people saying "original intent" would be morons. But you are wrong in that statement. Plenty of people think the Constitution ought to be about what is just, not about what dead white men thought. (In fact, you yourself said something like this later on in the thread.)
I'm not now asking you to abandon your critique of original intent, but can you admit that have been a moving target on this thread? I.e. does the above shed light on why I am (in your mind) being such a jack*ss on this?
Gene wrote: Your example of the Bible has nothing to do with how I was using it as an example. (I was saying interpreting one passage literally does not commit one to interpreting every passage that way.)
Gene, for real, I understood what you were doing with that analogy. And now, I'm trying to show you that ironically, if you think a little more about it, you'll realize that you picked a bad example, because it dovetails perfectly with my position on this thread. (So of course, what I'm trying to do with your analogy isn't what you intended--obviously you cited it to help your own case, not mine. But now I'm saying, let's think about Biblical literalism from a different angle.)
Someone can say he supports a literal interpretation of the Bible. Then I point out to him two contradictory passages, and ask him how he interprets them. Maybe he says, "Oh jeez, that's weird. Well, I guess we would look at the old translations, and see which verse might have been mistranslated. If that fails, we could see which verse was more consistent with the rest of the Bible, and throw out the other one..."
OK, now have we just busted this guy? After all, we just caught him using *something other than "literal meaning"* to interpret the Bible. So should he stop saying he supports a literal interpretation of the Bible? Is that now proven to be a useless, perhaps even meaningless, approach?
I don't think so, because it accurately sums up his view, and it provides a sharp contrast to plenty of other interpretations of the Bible.
So whether you agree with me on this, at least if you concede it's respectable to cling to the usefulness of a "literal interpretation" of the Bible, then why would you deny the same to "original intent interpretation" of the Constitution? Your main objection is that this principle alone is not enough to resolve all problems with interpreting the Constitution, but by the same token neither is literal interpretation of the Bible enough. And yet, when you brought it up as an analogy to assist your argument with me, I got the sense you thought it was a coherent view (if wrong).
Bob Quoted: "Second, if we want to know exactly what they had in mind, then we could benefit by reading their exchanges, the Federalist Papers, analyses of other documents at the time to see what they meant by "general welfare," etc."
Gene Answers: We *could*, huh, but no real need to do so, since you've already worked out a priori what they must have meant?
What do you mean, I've already worked it out? Are you referring to my handling of the general welfare clause? You must be, because I think that's the only specific position where I've said what I thought the original intent must have been. OK let's deal with that, then.
Bob Quoted: "General Welfare: We solve this by original intent, baby. First, the Founders clearly could not have meant that the federal government can do anything it wants, so long as it helps people."
Gene Answers: Nice bit of a priori history. Unfortunately, attempts to do history this way usually result in nonsense. By the general welfare clause, Hamilton clearly meant establish high tariffs, create a national bank, build dams, roads and bridges, and pretty much whatever else promoted industry. Why should Madison's "original intent" triumph over Hamilton's, except that you hope his will win?
OK for one thing, it's not "a priori." I've read some of the Federalist papers and other papers--I went to Hillsdale College, for heaven's sake--and someone (Madison? don't remember) did indeed point out that a strict construction was the only sensible position, since otherwise the rest of the document made no sense. And that in fact someone was worried about the 10th Amendment being superfluous for just this reason, but then other realists saying, "No, let's go ahead and put that in there just to make sure."
So say what you will, this wasn't a priori. I grant that I haven't studied it as much as you have, but you want to lump me in with Rothbard discussing the aborigines here, and that's not what's happening. I think I p*ssed you off with the "silly" comment from the get-go and you haven't been taking me seriously since.
Anyway, let's go back to Hamilton. Yes, he certainly had a loose construction of the Constitution. But are you saying he thought high tariffs actually contradicted the other portions of the Constitution? I don't think that's what you are saying.
But if not, that has nothing to do with my allegedly "a priori" handling of the general welfare clause. I didn't say, "Clearly the general welfare clause requires a strict construction." No, I said "the Founders clearly could not have meant that the federal government can do anything it wants, so long as it helps people."
Are you now saying Hamilton that the feds *could* do ANYTHING THEY WANTED? You're right, I'm not certain about the matter; maybe he did indeed think that. But then he had no business signing the document. It would be like me signing a work contract with you, and then writing in my diary, "I don't think this actually requires me to do anything in exchange for my salary."
But I don't think Hamilton was that nuts. I'm going to say he thought the other provisions of the Constitution were consistent with his views on what would help the nation. But I stand open to correction, since after all it was a political document and I suppose he could've realized it was stupid and contradictory, but he didn't care because they needed to sign something and move on.
For the record, as historian Merrill Jensen shows, when Jefferson and Hamilton looked at the Constitution, they saw two different documents. Jefferson saw strong states and a weak center; Hamilton, vice versa. Madison and Hamilton disagreed over whether a tax on carriages was a direct or indirect tax for constitutional purposes. Etc., etc., etc. By the way, looking to historical materials for a guide to interpreting the Constitution is a nonstarter because those materials themselves have to be interpreted. All constitutions are "living" constitutions.
ReplyDeleteAnother point: Where does it say in the Constitution that original interpretation is to hold sway? Spooner argued that it's not original interpretation that should control but rather the common-sense meaning of the words, regardless of interpretation. That the framers intended "other persons" to mean slaves is in no way binding on us, Spooner said because it violates natural justice. Richard Epstein distinguishes between original meaning and original interpretation.
ReplyDeleteThat the framers intended "other persons" to mean slaves is in no way binding on us, Spooner said because it violates natural justice.
ReplyDeleteSheldon,
Well, I agree with Spooner here, but only because I don't believe in the moral legitimacy of the Constitution. To give a different example, I don't think a mob hit contract should be enforced. But I wouldn't kid myself that I was enforcing it with a "modern, enlightened" interpretation; I would just admit I wasn't enforcing what the signers intended, and hence I wasn't upholding their contract.
Do you agree that's an important difference? So again, I'm not saying we *ought* to care about the Constitution, I'm rather saying that if you're going to interpret a thing signed a long time ago, you obviously have to try to understand what the writers meant by it, not by what it would mean if it were written in those words today.
By the way, looking to historical materials for a guide to interpreting the Constitution is a nonstarter because those materials themselves have to be interpreted. All constitutions are "living" constitutions.
ReplyDeleteC'mon guys, you are really going out of your way to be obstinate on this. Of course we have to interpret the Constitution in order to do anything with it. I'm not suggesting we abdicate control of our minds to Madison. And no Sheldon, you don't mean the Constitution is "living" the way that proponents of that view do. So maybe we need to invent better terminology, but the people who object to a "living document" are spot on.
Let me give you a specific example. Given my worldview, I don't think high tariffs promote the general welfare. But if you ask me, "Does the Constitution allow high tariffs?" it would be monstrous for me to say, "No, because they don't promote the general welfare."
Rather, I would need to go back and read things from the time (including studying the entire Constitution very carefully), look at other government actions at the time, etc. etc. And if it seemed that the signers all thought high tariffs were consistent with the document--even though from my POV, perhaps nothing in there justified them, certainly not the "general welfare" clause--then I would conclude that high tariffs were constitutional.
Does anybody have a problem with that? If not, then what are we arguing about? What I just did above is NOT what everyone else says we should do when it comes to constitutional questions, and so it definitely does shed light on my own position to stress this aspect of it.
Yes -- see my pot on "equal protection" above.
ReplyDeleteglen datz wrote:
ReplyDelete"But if the physical means and location of inception can be the test, in terms of whether a test tube was used, then perhaps the same can be said for birth in terms of a non-US geographic location. In this sense it is unnatural for a baby born outside the US to be a "natural" citizen. Thus,McCain is cooked, Callahan's argument is cooked, Rockwell is right again!"
You really ought to change your login to Glen Ditz.
I believe a major problem here is the view that a constitution is a or is greatly similar to a contract. Who is contracting with whom? The people with their government? That hits the well-known problem that there is no third-party enforcer. But even worse: the founders viewed the people as being the sovereign. So, if it's a contract, they have contracted with themselves! Obvious nonsense.
ReplyDeleteNo, a constitution is more like a general plan of action or statement of life goals. There's no reason at all the "future Gene" should feel bound by the "original intent" of "past Gene" in interpreting my life plan. Yes, I will often want to take that into account -- but I may also feel free to re-interpret parts of the plan in light of changing goals and circumstances. Why shouldn't I? Why should what I thougt at 16 have some command over me today?
Yes, I will often want to take that into account -- but I may also feel free to re-interpret parts of the plan in light of changing goals and circumstances. Why shouldn't I? Why should what I [thought] at 16 have some command over me today?
ReplyDeleteI agree with you here. But again, these are reasons that government constitutions are stupid. It's not an argument specifically aimed at somebody who supports an original intent interpretation to the Constitution.
I'll say it once more for the record: When Ron Paul or Rush Limbaugh say they support an original intent interpretation, they mean that if we can choose between what the Founders clearly meant by a phrase, versus how modern day progressives might use those words, then the Founders' meaning wins. They do not mean that this principle solves all constitutional issues.
I don't think anybody has advanced an argument against this definition of "original intent."
So, if you still disagree with me, then you must be claiming that I am wrong in what I think Ron Paul et al. mean by that term.
To buttress my argument that this isn't their sole guiding principle, these people also support a strict construction to the Constitution. So they clearly don't think "original intent" is the only principle you need. It's perfectly analogous to someone who advances a literal interpretation of the Bible. As I've shown, that principle alone doesn't resolve all problems with the Bible text, but I still think it's a legitimate way to describe oneself.
Finally: If you're with me so far, then you can see why I thought Gene's initial post was "silly." Because given my watered-down version of what "original intent interpretation" means, Gene himself used it to handle the ambiguous phrase "natural born citizen."
You might say, "Well what other options would there be, given your watered down version?"
Easy. Someone might try to answer it in terms of fairness. "Aww, why shouldn't Ahnold be able to be president? That's not fair. I don't think in this day and age, the Constitution can exclude someone like that."
A clarification for those who are still reading and think I am being an impossible *ss about this: I acknowledge that Gene wasn't literally caught in a contradiction in his original post. Again, it was just ironic that he used original intent *in that one instance* while condemning Ron Paul for saying it should always be used when possible.
ReplyDeleteWhat? Gene is just saying that original intent should only be used on parts of the consitutuion that are unambigous. Paul on the other hand is saying that it must be used for the entire constitution which is bogus and impossible to do.
DeleteYour argument about not having a definition of natural born simply doesn't fly. There is a well established common law definition that the founders (most of whom were well versed in common law) certainly knew. They didn't invent the term 'natural born' and more than they invented the term 'year' or 'dollar'.
ReplyDeletehttp://volokh.com/files/jim-alien4.png
Your document clearly says that as long if one of a persons parents is a subject of the country, then their children will be considered subjects. Both of mcains parents were american citizens so your document does not invalidate his presidency.
DeleteAh, children of ambassadors living in a foreign country are natural born! Well, that certainly clears everything up, since... oh, wait, McCain's father wasn't an ambassador? And you say one use in some obscure document would hardly clear things up regardless? Oh, never mind.
ReplyDelete