In the comment section to my previous post on “process”, some pointed to the need for appointing “originalist” judges to the Supreme Court. I’m very sympathetic to that view, although in the end it’s not clear what the term means, nor is it clear if there actually are any originalists.
The 10th Amendment to the Constitution seems to severely limit the scope for Federal action:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
That seems pretty clear. Congress cannot do anything unless the Constitution explicitly gives it the authority to legislate on the issue. And if you read the rest of the Constitution, there is very little authority given to Congress. I’d guess that over 90% of what Congress does do is not explicitly authorized by the Constitution.
[Or at least not fully authorized, as when they regulate both interstate and intrastate commerce in a particular industry. When I was young, Congress was only able to regulate airlines that crossed state lines. But at some point that distinction became meaningless, and now Congress regulates all commerce.]
Oddly, in 1995 the Supreme Court seemed to suddenly decide that the 10th Amendment limited Congress’s authority, striking down a gun control act on the grounds that it was not authorized by a specific Constitutional provision—such as the commerce clause. But it soon became apparent that, despite the “Lopez” decision, the Supreme Court had no intention of rolling back 90% of the Federal government. Rather they simply wanted Congress to pretend like it was adhering to the 10th amendment. Here is Barry Toone (1996):
Congress wasted little time in heeding the advice of the Chief Justice and reworking the language of the Gun-Free School Zones Act. While fans of Lopez were still cheering, Congress quietly added a preface to its original legislation. Section 922(q)(1) now reads:
The Congress finds and declares that – (A) crime, particularly crime involving drugs and guns, is a pervasive, nationwide problem; (B) crime at the local level is exacerbated by the interstate movement of drugs, guns, and criminal gangs; (C) firearms and ammunition move easily in interstate commerce and have been found in increasing numbers in and around schools; (D) in fact, even before the sale of a firearm, the gun, its component parts, ammunition, and the raw materials from which they are made have considerably moved in interstate commerce; … (F) the occurrence of violent crime in school zones has resulted in a decline in the quality of education in our country; (G) this decline in quality of education has an adverse impact on interstate commerce .. .
Congress, after the Lopez scolding, remembered to ask the Court before partaking of the Commerce power-and this time they remembered to say please.
Please? In what sense is that originalism?
Then in 2005, the Supreme Court ruled that the Federal government could overrule state laws legalizing medical marijuana, even if the marijuana was locally produced and provided by medical doctors to patients. Is regulating the medicinal use of pot one of the “enumerated powers” of Congress? Or is it simply “conservative” legislation that Antonin Scalia favored?
I’m told that President Trump approves of “originalist” judges who will strictly interpret the Constitution. I very much doubt that. He may appoint such judges (although I doubt that too) but he almost certainly does not approve of that judicial philosophy. As far as I can tell, Trump seems to favor judges that allow the executive branch (i.e. him) an almost unlimited degree of discretion.
Some originalist judges may agree with that view—indeed Judge Bork was famous for arguing that courts should usually defer to the wishes of the other two branches of government. Bork argued that the 10th amendment had become obsolete. Other originalists (Gorsuch?) may take a very different view, frequently striking down laws that they believe violate the Constitution.
I’m not going to try to defend either point of view—both seem defensible to me—rather I’d like to suggest that almost no one seriously contemplates a truly “originalist” Supreme Court. Consider the issue of immigration. What power does the Constitution give Congress to regulate immigration? I’m not sure, but found this at a conservative web site:
The word “immigration” does not appear in the U.S. Constitution or any of its Amendments. Article I, Section 8, Clause 4 does read, “… To establish an uniform Rule of Naturalization, …”. The 14th Amendment, Section 1 addresses the protection of “All persons born or naturalized in the United States,…” which extended citizenship through the States to the former slaves. The rules of immigration were reserved to the States through the 10th Amendment until the first Federal law was enacted in 1875. The U.S. Supreme Court ruled the following year that immigration regulation was an exclusive Federal responsibility. Congress established the Immigration Service in 1891, which was the first time the Federal government took an active role. Congress enacted additional quota systems after World War I in the years 1921 and 1924.
The 1875 bill restricted Asian immigration to the US. For those who know more history than I do, I’d be curious if conservatives were just as outraged by this 1875 theft of state powers by Congress as they were by the New Deal legislation of the 1930s. How would President Trump feel about a judge who decided that the Constitution left immigration decisions up to states like California?
[Yes, the Constitution does give Congress authority over “naturalization”, but of course that’s an entirely different issue from “immigration”.]
Again, I’m not trying to argue if favor of any particular legal philosophy. Rather I am arguing against “conservative” and “liberal” judges. A good judge is like a good plumber; her political views should have no impact on how she does her job. Thus I’m strongly pro-choice and yet also believe that Roe v. Wade was a bad legal decision. Similarly, it should make no difference whether the judge believed marijuana or guns to be the greater evil.
Is half an originalist better than a non-originalist? Not if one half of the decisions involve striking down legislation supported by progressives, and the other half of the decisions affirm legislation approved of by conservatives.
Wake me up when either political party starts consistently following a rules-based approach to jurisprudence.
PS. If progressives want the federal government to regulate intrastate commerce and conservatives want it to regulate immigration, then let’s just repeal the 10th Amendment and end this farce. Maybe then we could actually get back to the rule of law.
READER COMMENTS
Alexandre Padilla
Jul 8 2018 at 1:46pm
Scott,
You are 100% correct.
It actually seems to me that the Tenth Amendment (State Rights) is only invoked by either party only when it is consistent with their views (personal preferences on how people should behave). More often than less Republicans do seem to support state rights when those rights limit people’s personal freedom. But Democrats are like that too but it’s often different freedoms that Democrats want to limit and usually they favor limiting them at the Federal level.
Excellent post!
Chris
Jul 8 2018 at 1:51pm
1. FWIW, Scalia came to change his mind on the Raich (marijuana) decision.
2. In some ways, Thomas is the justice who most consistently supports the views you express here (too soon to say RE: Gorsuch).
3. One area where originalists get nervous is around the 14th Amendment. There tends to be a fear of non-originalists reading it so broadly (“substantive due process”) that it becomes an end run around the 10th Amendment. At the same time, the Supreme Court in 1873 improperly neutered the Privileges and Immunities Clause, which, over the long haul, had the effect of re-directing “traffic” that would have clearly been constitutional under P&I to the expanded Due Process Clause.
4. Combining 1-3 above, take the McDonald decision in 2010 that incorporated the 2nd Amendment. Scalia’s majority opinion did it through the Due Process Clause, despite his oft-stated disdain for substantive due process, while Thomas wrote a concurrence signaling his desire to resuscitate P&I. Nobody joined Thomas’s concurrence.
5. So long as originalism has sufficient adherents that numerous subvarieties exist, and so long as certain interpretations of parts of the Constitution [an expansive Free Speech Clause well beyond what the Framers intended; an understanding of Equal Protection the prohibits segregated schools despite D.C. schools being segregated at the time of adoption (pace McConnell’s argument, I acknowledge)] remain popular, there will necessarily be some inconsistencies.
Alan Goldhammer
Jul 8 2018 at 2:21pm
There has been so much focus on the courts because our dysfunctional Congress cannot get anything done. Of course, a reading of The Federalist Papers indicates that the system was designed to put a lot of checks and balances in place. Congress has also abrogated a lot of their responsibilities under Section 8 (the relinquishing of war powers to the executive branch is the key one IMO). There have been tortuous readings of the Constitution by courts since the beginning of the Republic and this will continue.
In so far as ‘originalism,’ it’s a rather bizarre concept to me. The US today hardly represents the country that was in existence at the time of ratification by the 12 states back in 1787. Any attempt to extrapolate the thoughts of Hamilton, Madison, etc. to the present day is a fool’s errand.
Mark Z
Jul 8 2018 at 8:14pm
If that’s the case, then one might argue, what’s the point in having a constitution at all? If we cannot impose a set of constraints on how the constitutioun can be interpreted indefinitely or until some future generation decides to alter them, then what can one do? Have a new constitution written every ten years? (not a rhetorical question; maybe that’s the best thing to do)
Personally, I’m more sympathetic to textualism than originalism (that is, we should put the plain meaning of the text above whatever is found to be the intent of the writer), but when people say the intentions of the framers are either unknowable or irrelevant, they’re not solving any problem, as they never seem to have any alternative set of constraints on the interpretation of the constitution, which is worrying to me. Originalism is better than nothing (nothing being legal realism).
Lastly, congress not doing what one wants isn’t a good reason for circumventing the separation of powers until one gets a branch that will do what one wants. If Congress can keep getting re-elected, then whatever it is or isn’t doing, it’s apparently something the majority of the people are fine with.
Floccina
Jul 11 2018 at 2:52pm
That just shows that it should have been periodically amended.
Scott Sumner
Jul 8 2018 at 3:34pm
Chris, Thanks, interesting and informative points.
This is a difficult problem:
“beyond what the Framers intended”
It’s not clear to me what “intended” means. Does it mean what they intended at the time, or what they intended if they knew then what we know now? Thus at the time they did not know that extremely powerful weapons would be developed, and thus may (I emphasize may) have intended there be no restrictions on gun ownership. But did they intend that people should be free to own nukes? Obviously not. So where to draw the line? How dangerous a weapon? What “intentions” count?
As far as free speech, that’s also a difficult problem. Different framers may have preferred different amounts of free speech. So which framer should we go with? Or should we simply enforce the law as written, (which is a pretty blanket statement “no laws . . .”) I prefer a fairly expansive interpretation, including commercial speech that is not fraudulent.
Going back to “intent” has some merit, but it raises as many tricky issues as it resolves.
Mark Bahner
Jul 8 2018 at 5:09pm
I’m too lazy to look for quotes on this, but I think it was Madison who said a militia composed of citizens would have a chance against a federal army. I think that’s nonsense today with a military that has an air force that can destroy entire cities and kill everyone in them without the people in those cities getting any chance to fire a gun at the aircraft delivering the bomb(s).
And I’m too lazy to look for the quote on this, but there was a “Star Trek: The Next Generation” episode where Data mocked the idea of earthlings who’d colonized a planet a hundred or more years previously defending themselves against aliens who wanted to take the planet under a treaty with the Federation. Data said words to the effect that, “They’ll kill all of you, and you’ll never even see them.”
That’s the sort of situation we’re in with our military today. The only real check on our military’s power is the humanity of the members of the military, and their willingness to abide by the Constitution and the Geneva Conventions. A bunch of nutty civilians with assault rifles is laughably insufficient.
Chris
Jul 8 2018 at 6:16pm
Scott,
You’re not alone. There are multiple approaches, each with reasonable arguments. (The comparison to interpreting scripture is oft-made.) I think the closest thing to a consensus is around “original public meaning,” i.e. what would a member of the (voting) public have thought the word/words/phrase meant at the time.
That’s somewhat clearer, but of course also means that most of the dredging of history you see in USSC cases is pretty bad and one-sided. The 2nd Amendment cases are a perfect example. Scalia finds a statute from 1762 in one colony that had members of their militia keep their muskets at home and Breyer finds a different statute from a different colony that had their militia members keep their arms in an armory. Further, while the right to bear arms was held to be an individual right, and not tied to militia service, it was done so in a way connected to self-defense. This removes any need to touch on whether a militia could resist the army. Finally, what can be used for self-defense was connected to weapons “in comment use at the time,” which can evolve with technology. So, at a minimum, everybody has a right to keep a handgun or shotgun in their home, but states can regulate what you carry with you in public. (States can also condition how you use your property even if you claim its for self defense–spring guns, other booby traps, etc.)
As for the Free Speech Clause, “no law” has never gotten five votes. Given that Congress passed, and President Adams signed, the Alien and Sedition Act within ten years of the Bill of Rights being adopted, its pretty clear there was never a consensus their, either. However, what we have now is clearly beyond the common law standards at the time of ratification. Essentially, political speech is protected to just short of inciting a riot (Brandenburg, 1969), libel puts the burden on the allegedly libeled to prove (Sullivan, 1964), contra Great Britain, etc., and obscenity convictions are exceedingly rare. Add in expression (flag-burning) and commercial speech, and we’re well past what any Framer would have contemplated.
If you really want to go a little crazy, try working through how technology affects the Fourth Amendment (police usage of cell phone data, this term’s Carpenter decision, etc.).
Mark Z
Jul 8 2018 at 8:27pm
This is why I think the text should matter more than underlying intent. We want to create the right incentives for legislators.
If a framer writes, “the state shall not restrict freedom of speech,” but someone finds that the framer wrote letters all over the place saying, “of course that excludes restrictions on blasphemy or hate speech, everyone knows that,” and even passes laws himself while in charge restricting blasphemy and hate speech, the appropriate interpretation by future generations is: the law prohibits restrictions on speech, period. If the framer had exceptions in mind when he wrote it but thought they were self-evident, too bad. Write what you mean.
That way, writers of laws have an incentive to be as clear and comprehensive as possible, and those of us who aren’t research historians with extensive knowledge of the letters and diaries of the framers have some hope of actually knowing what is or isn’t legal. That, imo, is the first, most important question determining whether a law is well-written: is it easy to discern what I have to do (or not do) in order to be in compliance with it?
Daniel R Grayson
Jul 8 2018 at 3:45pm
Please fill in some details about your opinion about Roe v Wade.
robc
Jul 8 2018 at 4:08pm
The 9th amendment is criminally underutilized.
Mark Bahner
Jul 8 2018 at 4:45pm
There have certainly never been any originalists on the Supreme Court for more than 100 years, if ever. Why? Because for at least the last 100 years, no originalist could come close to getting nominated to the Supreme Court, let alone confirmed.
To give an example, Clarence Thomas was asked (by a Democrat, of course) during his confirmation hearings whether the federal minimum wage was unconstitutional. The originalist answer to that is, of course the federal minimum wage is unconstitutional! FDR knew it was unconstitutional when he proposed it. FDR thought it was funny that it was unconstitutional:
But of course if Clarence Thomas answered that the federal minimum wage was obviously unconstitutional, he never would have been confirmed.
P.S. That Roosevelt quote if from the U.S. Department of Labor website, of all places!
EB
Jul 8 2018 at 6:55pm
I bet that in the U.S. there are many more originalists in Law Schools than monetarists in Econ Departments. I bet that originalists are at least 10% of Law professors and monetarists at most 1% of Econ professors. If someone was asked, “Are there any monetarists in the U.S.?” any serious economist would have a hard time answering the question because Milton Friedman failed to give a clear definition of money (in 1974, being challenged by the “monetarist” Governor of the Central Bank of Chile to define money, his advisers relied on my wisdom and answered M?). Anyone that studied advanced monetary theory in the late 60s and early 70s spent a lot of time trying to apply Milton’s simple framework, but the discussion ended with Goodhart Law (1975). In 1995, I had a good discussion with Goodhard about his law and my M? and it was clear that both were independent arguments for dismissing Milton’s monetarism. My point was the impossibility of finding (a) a statistical regularity between changes in any particular M? and nominal income and (b) evidence that the central bank could control that particular M? –the two necessary and sufficient conditions for Milton’s monetarism. That impossibility did not refrain Milton and others to advance some arbitrary M, from M0 to M99, and for any M chosen Goodhart’s point was “any statistical relationship will break down when used for policy purposes” (I use Jon Daníelsson’s formulation). Although there have been attempts to re-invent Milton’s monetarism (for example, Scott’s market monetarism), they are still subject to the same critiques.
I’d say that it’s easier to find “the original intentions of the framers” than a definition of M? that meets Milton’s conditions. Although I studied Law, and in particular Constitutional Law, my studies were related to the experiences of Argentina and Chile, two countries in which none has cared about the intentions of the framers. But I have been following U.S. debates on constitutional law and I suggest to read this entry on Originalism by Larry Solum (written in 2004, last update in 2016)
http://lsolum.typepad.com/legal_theory_lexicon/2004/01/legal_theory_le_1.html
I have been reading Larry’s blog daily for years and I’ve always been surprised by how many Law professors are interested in originalism.
In addition, I read daily the Volokh Conspiracy blog on legal issues. To understand the nomination process, I suggest reading
https://reason.com/volokh/2018/07/07/closing-in-on-the-next-supreme-court-jus
And to know what a “new” originalist think today about the Constitution, read the last-Wednesday post by Randy Barnett
https://reason.com/volokh/2018/07/04/what-the-declaration-of-independence-sai
Mark Bahner
Jul 8 2018 at 8:35pm
I don’t see how that can possibly be. For example, how can any true originalist say that the following departments and agencies of the federal government don’t violate the Tenth Amendment?
Department of Energy
Department of Education
Environmental Protection Agency
That’s just three. Anyone could name many more.
So which law professors are saying that large portions of what the federal government does violates the Constitution?
Scott Sumner
Jul 8 2018 at 8:02pm
Daniel, I don’t think the Constitution provides a right to an abortion. If (as I hope) I am wrong, that constitutional right probably also applies in many other areas, where the Court has refused to venture. Laws should be applied in a consistent fashions.
EB, You said:
“I bet that in the U.S. there are many more originalists in Law Schools than monetarists in Econ Departments.”
I think you mean people who call themselves originalists. That’s not what this post is about. I am asking whether there are any actual originalists.
“Although there have been attempts to re-invent Milton’s monetarism (for example, Scott’s market monetarism), they are still subject to the same critiques.”
Actually they are not. Not at all. The monetary base can clearly be controlled, and I do not assume that velocity is stable.
Mark Bahner
Jul 8 2018 at 8:42pm
If it’s any comfort to you, not only do I agree that the Constitution does not provide a right to an abortion, I also think the Constitution does not provide a “right to life” for the unborn.
Benjamin Cole
Jul 8 2018 at 8:27pm
Law, like macroeconomics, is politics in drag.
Mark Bahner
Jul 8 2018 at 11:36pm
I don’t think that’s entirely true. Look at the Gonzales vs Raich (originally Ashcroft vs Raich) decision: Stevens, Kennedy, Ginsburg, Souter, Breyer, and Scalia sided with the (Republican) Attorney General, and O’Connor, Rehnquist and Thomas dissented.
Benjamin Cole
Jul 8 2018 at 9:26pm
Add on: There are no Constitutional originalists or “strict constructionists.”
Gee, the US Constitution does not merely give me the right to bear guns—much more than that, by far. It gives me the right to “bear arms” and form militias.
Even in the late 1700s, arms included rockets, bio-weapons (small-pox laden blankets given the Native Americans) , cannons and firearms.
So today, by strict construction, I have to right to store anthrax, own various rockets and cannons, and form militias with the like-minded.
If one holds that I have the Constitutional right to bear arms, even as technological improvements radically increase the potency of weapons, then there is no Constitutional limit on the weaponry I can possess, in conjunction with my militia, which might be Black Panthers, or White KKK’ers, or radical communists, or right-wing fascists, or strict fundamentalist religious types. So we have nerve gas in our well-regulated depot.
Like libertarians, and free-marketeers, originalists and strict constructionists prove every day that discretion is the better part (of intellectual) valor.
Mark Bahner
Jul 8 2018 at 10:01pm
I can buy that the right to bear arms included cannons and firearms. But I have a really hard time believing that the “original public meaning” of “the right to keep and bear arms” was understood at the time to include keeping and bearing small-pox related blankets.
Benjamin Cole
Jul 9 2018 at 12:28am
Some constitutional scholars contend that the language of the Second Amendment devolved in part from the desire of white settlers to protect themselves from Native Americans (some contend to continue to encroach native American land).
If this interpretation of the Second Amendment holds some water, and then it maybe possible at a literal interpretation of the Constitution protects one’s rights bio-weapons.
Mark Bahner
Jul 8 2018 at 11:24pm
I know I’m mostly preaching to the choir here, and it’s not directly related to the post, but the absolute insanity of Supreme Court decisions like Gonzales vs Raich make me really angry.
Here was a woman, Angel Raich, who used homegrown marijuana to treat a medical condition. Yet, the Supreme Court ruled 6-3 that the federal government had the authority under the Constitution to prohibit that act.
How could any sane person find that authority in the Constitution? How could anyone think that what she did has anything at all to do with “commerce…among the several states”?
And even if they were insane enough to think that what Angel Raich did was affecting “commerce among the several states,” couldn’t they see if there was such an effect, it would actually reduce the marijuana “commerce among the several states”? That is, if Angel Raich is growing and smoking her own marijuana, it actually reduces the chance that she would buy marijuana produced in another state.
I don’t see how the six judges (six judges!) in the majority, who presumably are (/were) intelligent people who can think logically, can even pretend to be following the Constitution.
Benjamin Cole
Jul 9 2018 at 12:21am
No sane person to disagree with you.
That is why I say law, like macroeconomics, is politics in drag.
Mark Z
Jul 9 2018 at 12:31am
Mark,
I don’t think the decision is that surprising; does it not follow logically from Wickard v. Filburn? Filburn growing wheat on his own farm for his own purposes also would’ve reduced interstate commerce. One could employ similar logic to that used by the Roosevelt administration in that case to argue that, even if Raich didn’t engage in commerce, her growth of marijuana for her own consumption freed up other dealers’ marijuana for commercial sale, contributed to a decline in prices, increase in consumption, etc.
Now of course, I agree with you that it was a bad decision; but it was based on sound precedent; Filburn, really, is original the terrible decision. Of course the justices should’ve taken the opportunity to overturn Filburn, but that would open the door to challenging a lot of other sacred cows that hinge on a ‘generous’ interpretation of the commerce clause. I think the judges knew that, and didn’t want to ‘upset the established order.’
Mark Bahner
Jul 9 2018 at 4:26pm
Hi Mark Z,
You write:
I don’t think is does follow logically from Wickard v Filburn. Which was an insane decision itself. So Gonzales v Raich was like insanity squared.
Correct me if I’m wrong, but…AFAIK, in Wickard v Filburn, the stated goal of the government was to raise the price and total amount of wheat demanded from farmers who were selling wheat. So they said that if a farmer grew wheat for his own consumption, he wouldn’t buy wheat from others, and the price of wheat and amount of wheat bought and sold would go down.
But the government’s stated goal in Gonzales v Raich was to *reduce* the amount of marijuana crossing state borders. So Angel Raich growing her own marijuana would help the federal government reduce the interstate commerce in marijuana.
Right?
Mark Z
Jul 10 2018 at 4:45am
Not necessarily. If one produces one’s own marijuana, then the dealer from whom one otherwise would’ve bought it now has more to sell to others, and at a lower price. If a bunch of people started growing their own tomatoes instead of buying them at the store, stores would have to lower the price of tomatoes to compete more with home-growing; of course, doing so would lead some people who previously neither grew nor bought tomatoes to buy tomatoes at the cheaper prices. So actually, growing one’s own goods can indeed drive down prices and increase total consumption of the good in question.
And that, I think, was the implication of Filburn: even the decision of citizens to produce or not produce something for their own consumption affects market prices, and if it affects market prices, interstate commerce gives the government the right to regulate it. And the government has an interest in regulating the price of marijuana: it wants to drive it up so as to drive down consumption.
Mark Bahner
Jul 11 2018 at 10:21pm
It seems to me the implication of Filburn, and even more so of Raich, is that no amount of production of any good is small enough to preclude the supposed authorized power of Congress to control the activity under the power to “…regulate commerce among the several states…”
For example, there is a house in my neighborhood wherein the people put out a 5-gallon beverage cooler, with the sign, “Water…free for anyone who is thirsty.” (And they also very kindly put a dog water bowl next to the cooler.) It seems to me that the implication of Filburn, and even more so of Raich, is that Congress is somehow legally authorized to control that activity. (Because their cooler obviously drops the price of bottled water, since people will no longer have to carry water for themselves and their dogs.)
To me, it seems inconceivable that the public at the time that the Constitution was written would have thought the phrase, “…regulate commerce among the several states…” had that meaning.
Lorenzo from Oz
Jul 9 2018 at 12:51am
The US Constitution is institutionalised because deference to it is institutionalised. But defining ‘it’ turns out to be a difficult problem …
Actually, there is still quite a lot of actual deference (having three branches of government, what they do, at least in broad, civilian control of the military, etc). The Federalism thing seems to be the main sticking point. An enduring feature of federal constitutions. (We have versions of the same issues in Australia, as they do in Canada, though with the muting element that Parliamentary systems provide.)
EB
Jul 9 2018 at 8:40am
First, we should distinguish between professors and decision-makers because all professors should have clear ideas about their disciplines —in particular, how they explain their discipline’s phenomena— whereas decision-makers should consider both relevant abstract knowledge and the circumstances of each situation. Yes, it’d be easy for others to understand professors and decision-makers if they exposed clearly the arguments supporting their theories and their decisions. But in practice, if we are serious about understanding professors and decision-makers, we must focus first on the status of relevant theories and then on the extent of decision-makers’ attention to any relevant theory. For example, we can review past cases decided by the U.S. Supreme Court and assess to what extent the vote of each member has been conditioned by a particular theory —many Law professors work only on reviewing cases. And we can review the Fed’s past decisions and do the same type of assessment —some Econ professors have spent time on such review. In any review, we should have very clear what theory we consider relevant and since Scott decided to focus on “originalists” we must assume that he knows what “originalism” is. My comparison with “monetarists” and “monetarism” intended to show how similar the reviews should be, especially for Scott that has written so much on “monetarists” and “ monetarism” (to my surprise, now I find that he is not a monetarist because he rejects one of Milton’s conditions, so only 0.1% of Econ professors today are monetarists).
Second, once we make clear that the focus is on decision-makers we have to deal with the problem of what is our preferred approach to decision-making. Given his background, I’m not surprised that Scott claims to favor a “rules-based approach to adjudication” —yes, exactly the same “rules-based approach to monetary policy” that Henry Simons, Milton and others favored. But we know that such a preference is the result of rejecting discretion as if there were just two approaches. Between the two extremes —total discretion and what we now call algorithm-based approaches— we can define hybrid approaches in which some rules (remember there are many types of rules) constrain the discretion of decision-makers, and more important for any of these approaches we should be clear how rules will be enforced effectively. Yes, in theory, we may assume we have to choose between two alternatives, but in life, decisions are taken by considering the extent of compliance to rules and the perceptions and expectations we have about the circumstances. In other words, our decisions reflect mainly our discretion. And this is true for judges and Fed governors, and especially for the U.S. President. Each of them is constrained by a lot of rules that define their authority, but they know they can take the risk of abusing their powers. No rules-based approach to adjudication will make a difference because one can argue that 200 years ago the U.S. Supreme Court was, for whatever reason, more inclined to comply with the rules constraining its power but then the inclination has been weakening, especially after the FDR’s assault to the Constitution.
pyroseed13
Jul 9 2018 at 9:07am
This is a good post. I had a similar response to the legal challenge to Trump’s travel ban. I think the ban was a somewhat misguided policy, but the plain text of the statute, as well as precedent, suggested that the ban was well within his powers. If people are unhappy with the President having too much authority over immigration, then they should complain to Congress for instilling so much power in the executive. Instead, a new legal standard was dredged up to argue that Trump’s policy was unconstitutional, involving analysis of his past statements on the campaign trail. I am not against judges overturning precedent or overruling plainly unconstitutional laws, but I would like to see a judicial principle consistently applied. If I could guess how you would rule on the travel ban based on your ideology alone, then you haven’t actually told me anything about your judicial philosophy.
V L Elliott
Jul 9 2018 at 9:47am
There is a national security aspect to immigration that may not have as significant or as actively considered in the past as it is today. The influx of people leaving Syria and Africa for Europe is probably the most easily seen in recent years. Agents of foreign governments and/or adherents of philosophies/ideologies that are or are parts of threats to the United States. Does this not bring immigration into the responsibilities of the Federal Government which is charged with national defense responsibilities?
EB
Jul 9 2018 at 10:36am
Enjoy it:
https://babylonbee.com/news/senate-democrats-demand-supreme-court-nominee-not-be-unduly-influenced-by-u-s-constitution/
Mark Bahner
Jul 9 2018 at 4:46pm
It will help folks enjoy it more if they know the Babylon Bee is satirical:
https://www.snopes.com/fact-check/democrats-supreme-court-influenced-constitution/
Ben Kennedy
Jul 9 2018 at 11:25am
This short talk at a Federalist Society symposium by law professor Lino Graglia is the definitive take on “originalism” – it changed my thinking on the issue forever. Watch now!
Part 1
Part 2
Scott Sumner
Jul 9 2018 at 12:43pm
pyroseed, Where does the Constitution give Congress control over immigration?
Elliott, You said:
“There is a national security aspect to immigration”
I strongly disagree–at best a criminal justice aspect. But in any case, that’s the sort of vague argument that conservatives used to mock. Liberals would point to some vague notion such as “promote the general welfare” and claim it allowed the government to do almost anything. Conservatives used to object. Is this now going to be the defense of the Trump administration?
This is exactly why I’m so contemptuous of both the liberal and conservative views of law—they are both trying to find fig leaves for their policy preferences.
pyroseed13
Jul 9 2018 at 2:13pm
Hey Scott,
Well, the Constitution says nothing about immigration specifically. But does anyone think those provisions in the 1965 immigration act that grant the executive powers to limit immigration are unconstitutional? It seems there’s a lot of precedent for Congress setting immigration policy, including delegating some of the power to the President. Of course, not all delegations of powers are constitutional. But I am not sure what your point is. Do you think neither Congress nor the president should have any ability to direct immigration policy?
Scott Sumner
Jul 9 2018 at 12:46pm
EB, You said:
“to my surprise, now I find that he is not a monetarist because he rejects one of Milton’s conditions, so only 0.1% of Econ professors today are monetarists”
If you are surprised to discover my views on monetary policy, then you obviously did not know anything about those views at the time you criticized me in the previous comment section. So why comment at all?
EB
Jul 9 2018 at 6:45pm
First, I acknowledge that I have never seen a complete presentation of Scott’s theory of market monetarism. I have read a lot of Scott’s posts in this blog as well as in his own blog (long ago I stopped reading the second one) but none with that presentation. Scott has said that he’s writing a book in which he may present the theory. In the meantime, I can refer to what he says in this post (dated December 2017):
https://www.econlib.org/archives/2017/12/whats_my_core_m.html?highlight=%5B%22monetarism%22%5D
But before doing it, let me make clear what we are discussing. There are two broad versions of monetarism. One is the popular definition that says
“Monetarism is an economic school of thought that is often associated with economist Milton Friedman. What monetarists believe is that the government’s primary economic responsibility is to control and uphold a stable money supply. What monetarist argue is that through control of the money supply the economy can grow at a sustainable rate through gradual increase of the money supply and that economic disasters can be averted and escaped from by changing the amount of money in circulation.”
https://www.quora.com/What-is-monetarism
Indeed, this definition is grotesque because it suggests that we can become rich by increasing the money supply.
A second definition is given by economist McCallum for economists:
“Monetarism is a macroeconomic school of thought that emphasizes (1) long-run monetary neutrality, (2) short-run monetary nonneutrality, (3) the distinction between real and nominal interest rates, and (4) the role of monetary aggregates in policy analysis.”
https://www.econlib.org/library/Enc/Monetarism.html
but his definition —as well as his long entry on monetarism— fails to detail the critical role of monetary aggregates.
To do it, we must go back to MV=PY. “That’s the equation of exchange – an identity. M is the nominal money stock, however measured, P is the price level, and Y is real GDP. Thus, PY is nominal income. V is the velocity of money, which is defined to be the ratio of nominal income to the money stock. That’s what makes that equation an identity. A typical quantity theory approach to money demand (for example read some of Lucas’s money demand work) is to assume that the income elasticity of money demand is one, so from the equation of exchange, the theory of money demand reduces to a theory that explains V. Friedman would have liked V to be predictable. The problem is that it’s not. Technology changes. Regulations change. Large unanticipated events happen in financial markets and payments systems. As a result, there is considerable unpredictable variation in V, at both low and high frequencies.”
http://newmonetarism.blogspot.com/2012/07/some-doubts-about-ngdp-targeting.html
Yes, monetarism involves both the supply and the demand for money. The demand should be predictable and the supply must be controlled by the central bank.
Let’s go back to Scott’s post mentioned above (dated December 2017). He attempts to explain his core message. His second paragraph says
“It seems to me that market monetarism has two components, the market part and the monetarism part. In my view, monetarism is the school of thought that says shifts in the supply and demand for money drive the most important macro phenomena, including key nominal variables like inflation and NGDP growth, as well as business cycle movements in RGDP and unemployment.”
His definition of monetarism refers only to both the supply and the demand for money. Yes, the demand cannot be ignored, otherwise he’d be accepting the popular definition of monetarism. He can ignore the first three points of McCallum’s definition, but he cannot ignore the supply and the demand for money.
In the following two paragraphs (and later occasionally) he refers to epiphenomena as side effects of changes in the supply and the demand for money, but warns us not to confuse the side effects with the core mechanism of the macroeconomy (to the point that he claims that it works whether monetary neutrality holds or not). In the text, he doesn’t add anything else to his understanding of this core mechanism, but when replying to Arnold Kling’s comment Scott writes
“Arnold, Good observation. I mostly agree, but just to be clear when I say “money matters” I mean something a bit different from what Friedman meant. He focused on shifts in the money supply, I put more equal weight on money demand shifts.”
So again, for Scott shifts in the demand for money are critical. He doesn’t say why they are critical, but the only reason to be critical is that the shifts have a predictable effect on income, regardless of the many paragraphs about the “market” in market monetarism.
Yes, I may be missing something hidden in Scott’s many posts about market monetarism.
Scott Sumner
Jul 9 2018 at 8:34pm
pyroseed, I’m saying that if you are an “originalist” then it’s not clear why you would think that the federal government has any right to determine who gets admitted to a particular state. Isn’t that up to the state government? In other words, are the originalists serious about their judicial philosophy, or are they just using it a a bludgeon to strike down “progressive” legislation that they don’t like?
Mark Z
Jul 10 2018 at 5:04am
Wouldn’t consistency require that, if we grant states control over who they let in from abroad, that they also enjoy more control over who enters from other states?
In other words, if one holds the position that the constitution protects freedom of movement within the states (under the Privileges and Immunities Clause), then when a state lets a foreigner into its boundaries, it is letting them into all states. More over, it’d be difficult to square the interpretation granting states control over who they let in from abroad with court decisions holding that states cannot impose residency requirements on the receipt of public services, such as welfare. So if Arizona has more generous benefits than New Mexico, Mexico could let in anyone it wants from Mexico (maybe make a racket out of it and charge entrants a fee), then immigrants could go directly into Arizona, imposing costs on the latter. Does Arizona then not have a vested interest in regulating who can or cannot enter New Mexico?
I think how we interpret states’ rights to restrict migration from other states (and the status quo interpretation of the constitution is that they have little right to do so) has implications for what is the most consistent interpretation of the constitutionality of immigration law, if consistency is what we’re going for.
EB
Jul 10 2018 at 6:18am
Enjoy this –the six views collected in the article were not intended to be satirical but they are:
https://pjmedia.com/trending/top-six-unhinged-reactions-to-kavanaugh-nomination-to-scotus/
Salem
Jul 10 2018 at 10:20am
The word “explicitly” is not in the 10th amendment, and nor is any synonym. Implied powers are not ruled out. In fact, the original proposal for the 10th amendment did contain the word “expressly,” but Madison successfully argued against it, and the word “expressly” was dropped. In other words, your view that the 10th Amendment limits the federal governments to explicit powers was explicitly rejected by the drafters of the 10th amendment.
What’s more, the Necessary and Proper clause explicitly gives Congress broad authority in the areas surrounding its enumerated powers.
Before critiquing originalists (or any other legal philosophy) as inconsistent, it would be worth paying more attention to what the Constitution actually says.
Brian
Jul 10 2018 at 10:48am
Scott,
It’s not really true that the Constitution doesn’t mention “immigration.” Section 9, under Powers forbidden to Congress, explicitly says that “migration or importation of [] persons…shall not be prohibited by the Congress [before 1808]. This clause is well understood as applying to slaves, but is written more broadly than that, mentioning “migration” and “persons” in general. The power forbidden is clearly limited only until 1808 in a plain reading of the text, implying that Congress can do it starting in 1808. This implication is clear. Starting in 1808, Congress has the power to prohibit “migration” of “persons.” This couldn’t be clearer. Indeed, Congress did outlaw the importation of slaves in 1808.
If one is inclined to argue that such implications are not permitted under the 10th amendment, it is simple enough to point to the Commerce clause. In fact, this is likely what Section 9 is referencing by way of implication. Congress has the power to regulate commerce, broadly defined, with foreign nations. This is precisely what the slave trade was all about, which is why an additional clause was needed, but the clause broadens that to migration (as already mentioned). It should be obvious that, whether slave or free, immigration is the importation of labor from a foreign nation, and is therefore well covered under the Commerce clause. There is, consequently, no contradiction with originalists supporting the Federal power to control immigration.
Scott Sumner
Jul 11 2018 at 12:32am
Salem, I not taking any position on the 10th amendment. It’s the originalists who seem to think the Constitution doesn’t give Congress the authority to regulate guns in schools. Let’s say that’s true (I have no opinion.) Can you explain to me how we know they have the authority to regulate immigration, but not guns? Why one and not the other? Is one power implied, but not the other? One commenter talked about “national security” Aren’t guns and immigration both slightly related to national security, but only slightly?
When I was younger, “implied powers” were viewed as a liberal end-run around the Constitution’s limits on government power. I recall liberals saying there is an “implied right to privacy”. Conservatives rejected this argument, and focused on what was explicit.
Brian, Sorry, but it’s not at all clear to me that the movement of “free labor” is commerce. In my view, the term “commerce” referred to goods, where tariffs might be applied. Does Congress have the right to regulate my ability to move between states? Clearly not. So why do they have the power to regulate the movement of free labor into the country?
Again, I’m not saying they do not have this power. I’m no expert; it’s just not obvious to me that they have this power. And the passage you refer to is almost universally viewed as being about slaves, which in those days (not today) were indeed viewed as commerce.
Do you think Massachusetts would have signed onto a Constitution that gave Congress the right to prohibit British Puritans from migrating to Boston?
Brian
Jul 11 2018 at 4:40pm
“Brian, Sorry, but it’s not at all clear to me that the movement of “free labor” is commerce. In my view, the term “commerce” referred to goods, where tariffs might be applied.”
Scott,
Commerce only means the exchange of goods, not the exchange of services? Odd definition of commerce, in any era. The point here is that regulation of commerce is a power explicitly granted to Congress, but commerce is nowhere defined. Different people can define it differently, but whether one defines it broadly (as the courts have tended to do) or narrowly does not really bear on whether originalism is consistent. One can be an originalist and still have varying definitions of commerce.
This is very different than what has been done with the so-called right to privacy. There is no mention of privacy in the constitution, only a right to be secure in one’s person and property against unreasonable search and seizure or without due process. These things can fall under privacy, but they are a very narrow subset. It is not valid to extend this very narrow right to a much broader category when the much broader category is not explicitly mentioned. Commerce also can be either broad or narrow, but it is explicitly mentioned. It would be a different matter if the commerce clause had only specified exchange of goods. See the distinction?
In any case, whether one accept the commerce clause argument or not, the Constitution clearly anticipates that the Congress can regulate the “migration” of all “persons,” which is why they were prohibited from doing it until 1808. The date would not be necessary if the power did not exist. Confirmation of that understanding came when Congress did outlaw the importation of slaves in that year.
Finally, an originalist would certainly note, as you did, that this clause was aimed at slavery. But was it aimed only at slavery? If so, why did it include the word migration and not just importation? There’s no reasonable way in which slaves could be said to “migrate.” The distinction between the two is made clear when the limit on a tax or duty refers only to importation. And why did it talk about “persons” in general, rather than persons in a state of involuntary servitude, or even more explicitly, slaves?
Floccina
Jul 11 2018 at 1:50pm
I agree but interestingly I think that for example state and local governments making sweetheart deals with the likes of Amazon could be baned under the commerce clause along with San Fransisco’s preventing building.
So the federal government does at lot of unconstitutional stuff but they let the states interfere with interstate commerce to the detriment of the citizens when they could prevent it.
I assume that the commerce clause was to prevent tariff between states but the things I mentioned act like tariffs.
Thomas Sewell
Jul 12 2018 at 1:18am
There are more actual originalists in theory than in practice.
I’d personally be fine with the USSC deciding to overturn all the non-originalist rulings over the last couple of hundred years and require Congress to actually amend the Constitution properly if they want to change what it says.
Unfortunately, that’s not a realistic, nor politic position. So you’ll mostly find people who are originalists in theory compromising with how much they push back against the weight of judicial precedent and the value of stare decisis.
So yeah, in theory we have some originalists. In practice, there’s maybe one Justice on the court (Thomas) who would actually go as far as his theory would take him.
As a practical function, the Constitution has slowed down the concentration of power it should be preventing, but it certainly hasn’t stopped it. 99% of the current Federal government is unconstitutional, but it’s been a really gradual erosion.
That’s why we have a few movements out there to amend the Constitution to in effect say “And we mean it this time” with regards to several issues, because the USSC has already given away the farm animals and the barn doors are missing. Sadly, I’m not planning on holding my breath for those movements. At best we can push back against government usurpation of power and try and get Justices who will at least do some principled things, even if not all.
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