Wednesday, June 16, 2010

My Constitutional Right to Run for the Senate (Despite the Fact that I am Only 27 Years Old)




(Hat tip to Religion in America.)

 
Recently retired Justice David Souter recently spoke at Harvard and attacked the originalist (or fair reading as he calls it) interpretation of the Constitution, which assumes that the Constitution has hard and fast meaning and it is simply the job of judges to apply these "simple" truths. Souter believes in a "living" Constitution, that the Constitution is open to reinterpretation by judges in light of current society. Souter's main argument against fair readers is that the Constitution contradicts itself so one must therefore make a value judgment and choose one part over the other. Now there are certain things that Souter believes that a fair reading can be used for.


If one of today's 21-year-old college graduates claimed a place on the ballot for one of the United States Senate seats open this year, the claim could be disposed of simply by showing the person's age, quoting the constitutional provision that a senator must be at least 30 years old, and interpreting that requirement to forbid access to the ballot to someone who could not qualify to serve if elected.  No one would be apt to respond that lawmaking was going on, or object that the age requirement did not say anything about ballot access.


I find this statement to be naïve beyond credulity. This clause in the Constitution does not require any serious creativity to get around. I have the Fourteenth Amendment:


No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


The Constitution contradicts itself. On the one hand the Constitution itself, denies me as a twenty-seven year old equal protection under law by not allowing me to run for the Senate (as well as the office of Vice-President or President), but the Fourteenth Amendment insists on equal access. If the Fourteenth Amendment means a Constitutional right for gay marriage then it certainly must also eliminate such ageist discrimination as putting age minimum's on running for public office. Age minimums serve no other purpose but to deny that I am equal to any thirty year old. From here the matter is simple. The Fourteenth Amendment repeals all age minimums, even those explicitly placed into the Constitution.  

The only way the Constitution has any meaning is if it is read from an originalist perspective. Judges act in place of those who wrote the Constitution and its amendments, much the same way that trustees of an estate follow the desires of the deceased as expressed in a will. The Fourteenth Amendment does not eliminate age minimums for the same reason that it does not mean that gay marriage is a Constitutional right; the Radical Republicans of 1868 gave no indication that this was their intention and one would be hard pressed to say with a straight face that they would have supported such an interpretation if asked. Anything else and the Constitution simply means whatever you want it to mean and thus ceases to exist.

15 comments:

Vox Populi said...

>The Constitution contradicts itself. On the one hand the Constitution itself, denies me as a twenty-seven year old equal protection under law by not allowing me to run for the Senate (as well as the office of Vice-President or President), but the Fourteenth Amendment insists on equal access.

But the Constitution cannot be unconstitutional. If Article I says clearly that you have to be 30, it doesn't matter what any subsequent provision of the constitution says, unless it explicitly supersedes that clause.

>The Fourteenth Amendment repeals all age minimums, even those explicitly placed into the Constitution.

Again, no, it can't.

>Anything else and the Constitution simply means whatever you want it to mean and thus ceases to exist.

And yet, it still exists.

Izgad said...

Just to be clear, I agree that my Constitutional reasoning is absurd. My point here is to take a living Constitution reading to its natural reductio ad absurdum conclusion. You bring in a new rule to the living Constitution game that creative readings of the Constitution cannot be put into play when explicitly contradicted by other clauses. I fail to see any reason why this should be the case. That sounds like a very self-serving rule that goes against the whole idea of texts having hard meanings. I would also point out the fact that the Constitution never explicitly says that it means thirty Earth years so I can reinterpret it to mean Mercury years.

The Constitution like the Gemara never really contradicts itself. We just have to decide which clause applies in which situation and which clause has the power to overrule the other.

If I cannot conceive of something that I would want to do and even believe that it is the moral and logical thing to do, but am stopped because “I have a Constitution and the Constitution says no” then there is no Constitution.

Vox Populi said...

>If I cannot conceive of something that I would want to do and even believe that it is the moral and logical thing to do, but am stopped because “I have a Constitution and the Constitution says no” then there is no Constitution.

Why? Maybe you just have a really good constitution? :)

Just because you think that your idea would be both constitutional and a good idea, doesn't mean everyone else would think it is either, so there are still meaningful constraints. But that has no effect on whether you think it's constitutional. Unfortunately for you, you don't sit on the Supreme Court, though.

>I would also point out the fact that the Constitution never explicitly says that it means thirty Earth years so I can reinterpret it to mean Mercury years.

It never defines the word "the" either. Heck, who says the Constitution need be read in an acknowledged Earth language?

The problem with reductio ad absurda like yours in political contexts is that they ignore externalities like political constraints. Technically speaking, the Supreme Court has unlimited power - they can declare Congress unconstitutional because they have the unique power to interpret the Constitution and reject all other interpretations. The reason this hasn't happened yet is not so much because they're so modest or because there are too many conservatives on the bench wielding off tyranny with originalism, but because the Supreme Court is like money - it relies on everyone believing it has value for it to have value, or power. If they come up with a ridiculous interpretation - or even an interpretation that too many people don't like - no one will enforce their decision. So the reductio ad absurdum is absurd in and of itself. If we ever got to a situation where "years" was practically interpreted to mean Mercury years, the American polity would doubtless have other more serious problems.

The point is that liberal justices do perceive the Constitution as limiting what they can do, and they also see the political process as limiting what they can do. You may prefer the simpler constraints of a strictly interpreted constitution, but as a libertarian, you're well outside the mainstream.

I think you're just uncomfortable living with discretion. Not everything can be black or white. The Constitution really isn't obvious all the time.

Liberal justices are all really smart people who do know what they're doing, just like conservatives. Typically, to make it onto the US Supreme Court, you've demonstrated the ability to think critically, and I don't think they overlooked the Mercury possibility.

Izgad said...

“The problem with reductio ad absurda like yours in political contexts is that they ignore externalities like political constraints.”

Then why bother to have a Supreme Court? We already have the Congress and the President to act based on political calculations. Furthermore the Supreme Court is the branch most shielded from public opinion. I might be willing to go along with you if members of the Supreme Court had to go through an actual election process and make point by point declarations before the public as to how they will rule on specific cases and if justices had set terms, say a decade. That being said, if we do this we have no reason to bother with an actual text. Let us just be honest with ourselves and have rule by philosopher kings.

I am willing to give the legal system a lot of discretion, mainly to the people on the ground who have to enforce laws. I do not claim that everything about the Constitution is clear. There is plenty of room for reasonable difference, as long as you can say with a straight face that you believe that you are acted according to the direct intentions of those who wrote it.

I do not question the intelligence of anyone on the court. What I do question is the commitment of four or five of them to rule of law as something outside of themselves.

Vox Populi said...

>Then why bother to have a Supreme Court? We already have the Congress and the President to act based on political calculations.

Why have the President? We already have the Congress to act based on political calculations?

All actors in the political process act on political calculations. Do you really think that conservative jurisprudence operates in a political vacuum?

>I might be willing to go along with you if members of the Supreme Court had to go through an actual election process and make point by point declarations before the public as to how they will rule on specific cases and if justices had set terms, say a decade.

Many states do elect their high court judges (as well as lower court judges).

But even the relatively insulated Supreme Court is influenced by public opinion. Barry Friedman, of NYU Law, wrote a book recently - "The Will of the People: How Public Opinion Has Influenced the Supreme Court and SHaped the Meaning of the Constitution." It confirms what most people intuitively suspect. The court never really moves that far ahead or that far behind public opinion. Everyone knows the exceptions. When that happens, the Court's legitimacy gets called into question and it damages their ability to hold power and decide the law. Notable exceptions include Scott v. Sanford, which contributed to the Civil War, or Worcester v. Georgia, where President Jackson taunted the Supreme Court to enforce its own ruling. Depending on your politics, you might include Bush v. Gore or Roe v. Wade, both of which stirred intense debate.

In opinion polls, the Supreme Court regularly ranks as one of the most trusted branches of the government, in part because they're careful to not rock the boat that much. This sort of politicking has been going on for as long as the Court has been around. See, Marbury v. Madison.

Vox Populi said...

>There is plenty of room for reasonable difference, as long as you can say with a straight face that you believe that you are acted according to the direct intentions of those who wrote it.

It's very rare that anyone can do this. Justice Scalia, perhaps the leader of the Conservative wing, thinks the entire idea of legislative intent is ridiculous. Whenever someone brings it up, he almost always writes an opinion taking exception to it. He considers it impossible to know what "Congress" intended when it wrote something. For one, whose intent matters? The 218 Congressman who voted for the language they probably didn't even read? The fifty one Senators who didn't block it? The median Congressman whose vote was necessary for passage? The president that didn't veto? The lobbyist that proposed the language? The junior staffer that edited it?

In some ways, the intent of the the writers of the Constitution is even harder to divine. There's no public Congressional record where I can see everyone's debates, as the debates were secret. All we have are Madison's notes, released much later, and the Federalist Papers, which are really just op-eds by people who were trying to drum up support for the Constitution. Even Madison, author of many of them, came to reverse many of his opinions on what the Constitution allowed, years later. Plus, it had to be ratified by all those state legislatures, which undoubtedly had their own understandings. And, this all happened over 200 years ago, so there's no one we could ask, even if we could trust them. There were constitutional debates even in the first Congress when practically the entire government was full of people who had written the damn thing.

I think you might favor rooting all interpretations as to what the Constitution means in the "original meaning" - what Scalia says is what the words as actually written, would mean to someone living in that time. (He keeps a really old dictionary handy.) But even then, why should that be the case?

The 14th Amendment is really really vague. Even armed with your mid 19th century dictionary, all you can really glean from this is that they wanted to make sure people received equal treatment before the law. What the hell does that mean? Can you tell me what they thought by "equal protection of the law" - or what due process is? Tell me, do you think they had a specific list in mind of which rights were included in due process, and which were not? What is a "privilege"? You also might note that the 14th Amendment only forbids the states from such discrimination - can the federal government stop black people from voting in federal elections? Is that what they 'meant" - or what someone reading it would have thought?

You look at this text and say thee's no way its 19th century writers meant to protect gay marriage. But there's very little evidence they meant to allow black people to use our water fountains, either. I wonder if they had the intent to protect ethnicities and races they had never heard of from official racism? I don't know that they had ever met a Maori. May Virginia prevent Maoris from voting? If you insist on some sort crazy specificity in their intent, your constitution is worthless. Certainly Article II never foresaw its rules applying to a black president!

A liberal might look at this and say, perhaps their intent was just to make some sort of vague binding statement that people should not face unjust discrimination. How do we decide what is just and unjust? And what is discrimination? By using common accepted notions, such as they are, of what constitutes an injustice. Etc.

Izgad said...

Good piece you wrote. If you want to edit it for style and clarity, I would gladly put it up as a guest post.

We have a congress to pass laws and a president to sign them and carry them out. Both of these branches are directly tied to popular opinion. I believe in the value of having a part of our government tied to the claims of tradition; that is the Supreme Court.

All governments, even dictatorships, are really democracies, as they are dependent upon popular support. Popular support is beside the point, what we want it rule of law and a way that grievances can be addressed through the system.

Since I do not blindly worship democracy, but am for more interested in rule of law, it does not surprise me that the Supreme Court is the most trusted. It certainly contains the most talent. As Aristotle understand, this is the virtue of a true aristocracy.

When I talk about legislative intent, I mean it in a very open ended sense, one that turns itself into a form of original meaning. The important thing is that my interpretation should not be about my values and agenda, but at least trying to carry out the collective will of the signers. I recognize that this is not possible, but I am still bound to give it an honest try.

I find it reasonable assume that our Radical Republicans were out to end slavery and would have opposed any conspiracy on the part of Southerners to continue slavery by other means, which is what Jim Crow was. It would seem that our Radical Republicans were willing to accept the existence of specific segregationist measures so for example separate but equal might be able to stand. This is different from the whole system of Jim Crow itself. Take a look at the other clauses in the fourteenth amendment, the ones about people who served in the rebellion not being able to hold office and the likes. If I were on the Warren Court I would have come out and declared that Southern politicians were attempting to continue the Confederacy and as such were guilty of treason. Any person unwilling to take an oath denouncing the Confederacy as treason, and actively promoting Confederate symbols should be seen as part of a 20th century rebellion against the Federal government and not allowed to serve. Mid-20th century public opinion might not have been with me, but I could rest assured, from my reading of late nineteenth century Republican literature, that the Radical Republicans would have supported me and would have seen me as a faithful steward of their amendment.

Vox Populi said...

I appreciate your kind words, and may take you up on your offer. I'm starting a blog, and would also appreciate it if you could add me to your blogroll.

>The important thing is that my interpretation should not be about my values and agenda, but at least trying to carry out the collective will of the signers. I recognize that this is not possible, but I am still bound to give it an honest try.

It's not impossible because it's too hard, it's impossible because it doesn't exist. No matter how hard you try, you cannot interpret the Constitution using non-existent intent. There is no "collective will" of the signers.

Again, there's no reason your agenda shouldn't have an impact on the way you interpret the law. As long as you can make a convincing argument that you're not doing violence to the text, your values aren't any less important than anyone else's.

>I find it reasonable assume that our Radical Republicans were out to end slavery and would have opposed any conspiracy on the part of Southerners to continue slavery by other means, which is what Jim Crow was.

I'm not sure we're in agreement on what Jim Crow was. My understanding is that they were legislative attempts to deny basic equality to African-Americans. This, to me, includes "separate but equal".

In any case, I don't know how reasonable your assumption is because (a) Radical Republicans witnessed Jim Crow and either did not do enough to stop it or did not care (Compromise of 1877 probably needed some of their support anyway) and (b) your assumption seems to be that some group of identifiable "Radical Republicans" wrote the amendments and were all in agreement on what their practical effects should/would be, an assumption I find highly dubious. It seems more likely that some Radical Republicans were more radical than others. Thus, no intent, other than what is able to be gleaned in the vaguest sense from the plain language, can exist.

>Mid-20th century public opinion might not have been with me, but I could rest assured, from my reading of late nineteenth century Republican literature, that the Radical Republicans would have supported me and would have seen me as a faithful steward of their amendment.

You would be okay with this? But this is crazy. It ignores the fact that the drafters of the Amendment could not possibly have been in total agreement on what was written, meaning you'd be privileging some drafters, and some voters more than others. Just because you found some writings of Radical Republicans that declared some people traitors, does not mean that makes its way into the Constitution, via legislative osmosis. Even if you could identify to me all the people who had a part in writing the Amendment, and show me all their sworn affidavits affirming that they indeed meant it the way you said (which you can't), you'd still have the problem that they weren't anywhere near all the people necessary voting on it for it to become binding law. Why should their understanding count
more than the others? Second, it's just as "liberal" or "activist" an interpretation, if not more so, as Earl Warrens reading of the 14th, in that it completely changes the way the Amendment had been understood for the last 100 years, including by generations far closer to the drafters, including that of the drafters. The difference is, Earl Warren doesn't care, because his jurisprudence does not claim to care about the intent of the drafters, while yours does. It's inconceivable that you possess a more faithful understanding of Radical Republican legislation than the Radical Republicans themselves!

Izgad said...

Send me a link when your blog is up.

We seem to be stuck here. You argue that since it is impossible to say anything about original intent one is left interpreting the Constitution according to the values of the time. I agree that original intent is impossible in any ultimate sense. That being said I still believe in making the attempt in being in range of what at least a large segment of those involved would have wanted.
I think it is important to realize historically that there was a gap of a generation between the end of the Civil War and the formal introduction of Jim Crow and another generation before Southerners dared to come out and embrace the Confederate legacy. In many respects the Stars and Bars became for more important for the 20th century South than it ever was during the Civil War.
If I were to take my time machine back to the post-Civil War Congress, dominated by Republicans in ways that were never to be repeated again in American history, and told them that by the early 20th century the South would be producing a Confederacy worshipping culture (with Birth of the Nation and Gone with the Wind) dedicated to maintaining slavery by all means possible and I wanted to use their Republican party created fourteenth amendment to crack down on anyone involved in this de facto rebellion, just as they were using the amendment to come after anyone involved in literally rebelling against the United States. It is reasonable to assume that I would get my fair share of hands. This was not a group of people to take the idea of Southerners waving the Stars and Bars and defying the Federal government lightly. Now imagine that I were to tell them that I was going to use their amendment to create gay marriage. I assume that I would get nothing but blank stares and questions as to my sanity.

I spent some time a few years ago reading through back issues of a Republican newspaper from Xenia Ohio during the 1880s and it is amazing to what extent the hatred of the South remained. These people do not like blacks and certainly do not want them in their schools, but go up in arms at the very thought that those treasonous southerners are being allowed to get away with mistreating their blacks.

Vox Populi said...

>That being said I still believe in making the attempt in being in range of what at least a large segment of those involved would have wanted.

That's fine, but there's a good chance you'll just end up using your values to decide what you think "at least a large segment of those involved would have wanted."

Additionally, I see no reason why the perhaps more easily discernible intent of a large segment should matter more than that of a more silent majority.

>Now imagine that I were to tell them that I was going to use their amendment to create gay marriage.I assume that I would get nothing but blank stares and questions as to my sanity.

Even so. There's an art to Constitutional writing. Even if we lived in a world with a fairly determinable authorial intent, if you were writing an amendment that you intended to apply to a very specific scenario, you would use very specific language. Such amendments do exist. The Prohibition amendments are pretty specific. The drafters didn't come up with broad far-reaching language - they just wanted to prohibit the import and sale of alcohol.

Similarly, if the Radical Republicans really just wanted to stick it to the South in very specific ways, they were free to do so. Instead, they chose language that had nothing to do with geography, or even African Americans or time, or racism. It was phrasd more the way you would phrase a timeless principle.

I think it's suitably clear from this that they had no intention to limit the effects of the 13th, 14th and 15th Amendments to their historical contexts. They understood that it would apply as giving Congress the power to intervene against all sorts of State infringements on individual rights that they could not begin to imagine.

They knew that the term "due process" was in the Fifth Amendment (ratified 1791), and, before that, in the Magna Carta. They knew that in a country with common law jurisprudence, judges would continue to shape and adapt abstract words to modern circumstances, as indeed judges had with the words "due process" for hundreds of years. If they watned to stop that from happening, they could have. (Or at least severely limited it.)

Izgad said...

The fourteenth amendment was the creation of the Republicans who were in control of Congress after the Civil War. (They were saddled with Andrew Johnson, a Southern Democrat, who remained loyal to the Union, which is why they tried to impeach him.)

As a historian I engage in “thick” descriptions all the time. One can say very little about individual people living during the Middle Ages, particularly those who were not well off, literate and male. That being said I do have a good sense of how the “medieval” mind worked (no it was not simply a hash of prejudice and superstition), how it differs from the “modern” mind and am perfectly comfortable role playing “medieval man” even if this “medieval man” is an artificial construct not directly related to any specific person who might have lived. It annoys me to no end when I see the medieval ages depicted in books and on screen with characters that are clearly modern in their thinking. I do not know how every person in the middle ages thought, but that is not an excuse to make them into moderns. The same applies to nineteenth century man or even nineteenth century Northern Republican man sitting in Congress. This understanding comes from an intense study of medieval texts. Other people are free to read these texts, come to their own interpretation and challenge mine. Historians may have their personal biases, but the historical method is not. Perhaps we should pack the Supreme Court with historians and not judges and lawyers.

I do not have to be right in any ultimate sense. All I need to do is manage to bring the nineteenth century into the discussion and thus give our politics an extra dimension then simply a 21st century echo chamber.

The fourteenth amendment, in its later clauses, has very specific language to tie the amendment to the Civil War context. As I understand our Republicans, they were trying to get the government out of race in much the same way that the first amendment got the government out of religion. There is evidence to indicate that they were aware that race did not just mean whites and blacks, but other groups such as Native Americans. It seems, though, that they were not trying to bring the Constitution down to the State level beyond the issue of due process.

Vox Populi said...

>As a historian I engage in “thick” descriptions all the time.

And, as a historian, you may be very accurate in how you think Homo Reconstructus thought, but that's nowhere near accurate enough to gauge what several hundred specific specimens thought should be the ramifications of a given legislative act. You can tell me that they would have really disliked Rebel scum keeping their Negroes down, and still have been homophobic, and you're probably right. But you can't convert your macrohistorical analysis of popular mood and sentiment into the microhistorical analysis of what N amount of people intended and did not intend for X amount of words to mean, which would be necessary for your interpretation to be strong enough to be binding on me.

>I do not have to be right in any ultimate sense. All I need to do is manage to bring the nineteenth century into the discussion and thus give our politics an extra dimension then simply a 21st century echo chamber.

I don't understand what you mean.

>The fourteenth amendment, in its later clauses, has very specific language to tie the amendment to the Civil War context.

So we see, per your interpretation, that they knew how to center things in the proper narrow historical context, when they wanted to, and yet Section 1 is devoid of any such limitation. It could be that a very strong argument could be made that later "insurrections" need be exceedingly like the Civil War for them to be covered by the 14th. I doubt it, though, because even the later sections don't mention the Confederacy by name and are careful to refer to "insurrections" or "rebellions" and not "the Civil War" or "the rebellion".

>As I understand our Republicans, they were trying to get the government out of race in much the same way that the first amendment got the government out of religion.

Not sure what you mean. First Amendment forbade the government from legislating as to religion whatsoever (as popularly understood). Fourteenth Amendment specifically authorized Congress (actually expanded the scope of the federal government - a pretty big deal constitutionally) to meddle in race in state governments. The whole point was to give Congress the in that it didn't have before, and prevented it from regulating slavery in the first place.

>There is evidence to indicate that they were aware that race did not just mean whites and blacks, but other groups such as Native Americans.

How about tall and short people? Men and women?We know that the drafters didn't intend for the 14th to protect women, because women were denied the franchise in every state in the Union until Wyoming became the first state to allow it in 1890. The federal government actually disenfranchised the woman of the Utah Territory in 1887, and women had to wait until the 19th Amendment in 1920. (The 19th is narrowly worded and only applies to voting.)

One of the conservative arguments against ratification of the Equal Rights Amendment has been that the 14th applies to all - men and women. Do you agree?

Izgad said...

I do not see the fourteenth amendment as applying to gender, particularly as it was passed at a time that women were not allowed to vote. I am very open to having an Equal Rights Amendment and the first things I would do with it are subject women to the draft and make it illegal for government money to go for the creation of women’s only sports teams.

Vox Populi said...

>I am very open to having an Equal Rights Amendment and the first things I would do with it are subject women to the draft and make it illegal for government money to go for the creation of women’s only sports teams.

Yeah, I bet you and I disagree about a lot. Because I don't really want to go off on a tangent, I'll just quickly note that (a) there is no draft and (b) if the government shouldn't give money to women's sports teams, it shouldn't be giving to men's sports teams, either. While it may be theoretically possible for a woman to be good enough to join the men's basketball team, practically speaking, that's not going to happen.

More to the point, your constitutional vision is...unique. Or, if not unique, well outside the norm of American jurisprudence. There is no ERA. If we just started applying your jurisprudence now, we'd have a lot of holes in our law - the biggest of which would be that over half our population would not be entitled to due process before the law. You may be willing to go with this because it's more in line with your historian sensibilities, but the rest of the country does not read our founding document the same way you do.

Additionally, I resate all my previous objections.

Izgad said...

It is not my problem that very few women would be able to compete with men to gain a spot on a co-gender team. I was never much of an athlete and no one ever gave me any breaks as a thin nerdy Jew. If women should not be penalized for their sex they should not benefit from it either.

I just realized that I made a mistake earlier in that the fourteenth amendment says nothing about race so it may very well cover women at least to some extent. The fact that it clearly did not grant women the vote opens the possibility that it was not meant to cover voting at all, just legal protection unless we are to say that women in the nineteenth century were implicitly understood as being in a special category without voting privileges, but legal protection.

At the end of the day, regardless of whether the Constitution insists on it, I do support women’s equality with the very real penalties that go with it.