Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
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markinaustin
Memetrics
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quarterback
ScottC
yellojktVital Statistics:
| Last | Change | |
| S&P Futures | 2340.3 | -2.0 |
| Eurostoxx Index | 373.1 | -2.6 |
| Oil (WTI) | 47.5 | -0.7 |
| US dollar index | 90.2 | |
| 10 Year Govt Bond Yield | 2.42% | |
| Current Coupon Fannie Mae TBA | 102.09 | |
| Current Coupon Ginnie Mae TBA | 103.39 | |
| 30 Year Fixed Rate Mortgage | 4.21 |
Stocks are down this morning on no real news. Bonds and MBS are rallying.
Mortgage Applications fell 2.7% last week as purchases fell 2% and refis fell 3%. Mortgage rates were more or less unchanged on the week.
Existing home sales fell 3.7% YOY to 5.48 million in February, according to NAR. Low inventory and lower affordability offset the increased foot traffic. The median price rose 7.7% YOY to $228,400. Inventory represented a 3.8 month supply, which was an uptick from January, but is still lower YOY. Days on market dropped to 45 days from 50 in January and 59 a year ago. 42% of the homes sold in February were on the market less than a month.
Home prices were flat on a month-over-month basis and are up 5.7% YOY, according to the FHFA House Price Index. The mountain states had the highest home price appreciation, while the northeast lagged.
The story in the markets is that stocks and bonds are beginning to give back the Trump reflation trade, where bonds sold off and stocks rallied on the prospect of fiscal stimulus out of Washington. Donald Trump is getting a lesson in the limitations of the bully pulpit as health care reform appears to be stalling. Repealing and replacing Obamacare is the “pay for” for fiscal stimulus and tax reform, so if it doesn’t happen then part of the basis for the post-Trump stock market rally is in jeopardy. Meanwhile, Neil Gorsuch seems to be sailing through his Senate Confirmation hearings, albeit with a little kvetching from the usual suspects.
Punch line on Washington: health care reform is supposed to go to the House this week. If it passes, that is good for stocks and bad for bonds. If it fails, it is bad for stocks and good for bonds (in other words, if it fails, interest rates are probably heading lower). FWIW, a couple big market technicians (Ralph Acampora and Dennis Gartman) went bearish yesterday as the S&P 500 broke below the post-election uptrend.
As anyone shopping for a home can tell you, it’s slim pickings out there. We are seeing the biggest squeeze in the starter home category. It appears that part of the problem is a lack of confidence to move up to the next category. People in starter homes are staying put, which is keeping homes off the market.
One potential issue for tax reform is affordable housing construction, which relies on tax credits to entice investors to put up money. If the corporate tax rate falls from 35% to 20% – 25%, then the value of those tax credits decreases. Affordable housing has always been a money-loser for developers and landlords, so tax incentives are used to paper them over. They used to be called tax shelters back in the day. Apparently the value of the credits (which actually trade) has dropped by 10% – 20% since Election Day. This is going to make life more difficult for Ben Carson and HUD.
Dealing with Fannie and Freddie is not an immediate priority, at least not for this year. Staffers are now starting from scratch to come up with a plan. One possibility is to end the profit sweep for the GSEs and let them retain that profit in order to build up their capital, which would take a decade or more. This would not require a legislative fix: Under the 2008 law, HUD Secretary Mel Watt has the authority to make that change. Note that Fannie is expected to pay $10 billion to the government for its fourth quarter gains.
The Cleveland Fed takes a look at wage growth and posits that the huge capital for labor swap that has been in place since the end of the 20th century could be taking a breather.
Interesting story in the FT about commodity trading advisors and how they are using momentum-trading strategies to put the old “portfolio insurance” wine in a new bottle. Portfolio insurance was a technique developed in the 1970s, which was largely credited with causing the Crash of 1987. These new strategies are similar, and use algorithms to follow the momentum of the markets, which would potentially add selling pressure to crashes. In the brave new world we live in, there are no longer market makers and specialists that take the other side of the trade, and we could see selling in a vacuum. The next market crash, investors may find out the downside of sub penny bid-ask spreads and commissions.
Filed under: Economy, Morning Report |
All Things in Moderation 
The final end result of the culture of victim-hood:
Which begs the question, if you chose to remain disabled if there’s another option are you still entitled to some special accommodation?
He does get one thing right about noting the contradiction:
Which is why a disability isn’t something you should take pride in or conversely be ashamed of. It’s a condition, not an achievement.
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Reminds me of that couple who took steps to ensure their child would be born deaf and be part of that culture.
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Didn’t you post this some time ago? I vaguely remember talking about it. Absolute insanity.
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we’ve talked about it before. WaPo magazine had a feature.
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jnc:
From the articel:
I’d have to face feeling like a traitor to the movement, a turncoat to the cause of disability pride.
I had no idea there was such a cause or movement, but I suppose that in a culture which routinely rejects objective reality and corrupts the language used to describe it, it ought not be that surprising that some people see the lack of an ability to achieve certain things as a source of “pride”.
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However, as a member of the left in good standing, presumably he’s fine with terminating a pregnancy for the same condition that would be treason to the movement if a cure was found.
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Legislators want Maryland to become a sanctuary state:
http://www.washingtonexaminer.com/maryland-moves-to-be-first-sanctuary-state-in-the-us/article/2617988?custom_click=rss
For the life of me I just don’t understand the progressive contempt for immigration laws.
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Sure you do. Illegal immigrants are equal to citizens. Everyone is the same.
It’s just racism to treat them differently.
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Just another example of the Republican War on Women.
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It is based on their voting patters. If they voted R, obama would have proposed a 50 foot titanium wall on the Southern Border.
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The feminist left is impossible to parody:
https://heatst.com/politics/chelsea-clinton-gets-lifetime-achievement-award-for-doing-nothing/
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Do the poohbahs in the D party really think they can make Chelsea a thing?
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I have been thinking a lot about the Gorsuch hearings and the Supremes.
First, I am with Lindsey Graham that as with Scalia and Ginsburg the Senate ought to get back to unanimous votes for qualified Justices like Gorsuch.
Second, the partisanship is in the the Congress and the executive branch. Lawyers who love the law and the Constitution love to argue about it and while most of the Constitution is not open to argument and never has been much of it is the product of arguments that were not won or lost, but compromised with words of general meaning, like “rights” and “equal protection” and “due process” and “cruel and unusual”.
The difference between originalists and living constitutionalists is one of degree, not of kind, except at the extremes. The extremes in my lifetime have been William O. Douglas on the living constitution side, and probably Clarence Thomas on the “originalist” side. Other originalists, like Scalia, recognized that the writers left weasel room on purpose, in many instances. Other living constitutionalists, like Brennan, were very likely to try for an original understanding first if he could satisfy himself that there was one.
Both camps have bred a third group: pragmatists. Use original intent where you can find it, use spirit of the original intent where it can stretch to cover new technology, and try to find a philosophy that “works” for statutory interpretation and conflicting legal and equitable principles.
There are so many examples of this.
How to deal with a vague statute that Congress told an agency to write rules for to implement enforcement is a recurring example. Scalia loved Chevron deference, but Gorsuch doesn’t.
A rule of construction is that if a saving interpretation can be found, then
the statute ought to be saved. See Roberts on the ACA.
Pragmatists also get to look at results of each plausible decision in a hard case. There was pending in the federal court system for decades [like in Kafka] a Native American suit for damages that on the literal interpretation of the statute would have totally bankrupted the USA. Judges found ways to keep this case from ever getting to trial in the hope it would settle, and finally it did. And everybody knew this case would never be tried, but could not be dismissed.
Well, I see why politicians get to be less than cordial to each other. But I understand why lawyers and judges still remain cordial. They respect each others’ approaches and their opinions will coalesce differently from time to time.
Non-lawyers especially will accuse judges of exerting their personal preferences, and at some level that is inescapable. Human. But it isn’t partisan like legislative and executive politics.
It is difficult for the Ds to get over the fact that the Rs didn’t even allow an up or down vote on Garland. That was perhaps the death of Lindsey Graham’s wish for unanimous votes for qualified nominees to the highest bench.
But it was not because Garland was a partisan, or unqualified, just as the D’s likely oppo to Gorsuch is not because he is a partisan, or unqualified.
It is all about the Senators, not the nominees.
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Great back story on how the 27th amendment finally got ratified after 200 years. And an object lesson for those of a “living costitution” bent (more on which later) on how the Constitution is supposed to be changed.
http://kut.org/post/he-got-bad-grade-so-he-got-constitution-amended-now-hes-getting-credit-he-deserves
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I both heard and read this story the other day and came close to posting it here but thought no one would be interested, judging by the narrow range of discussion that day. I see that I was w-w-rong.
Good story.
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Mark:
I wonder how you might be able to tell the difference between a judicial opinion derived from a genuine effort to understand the meaning of the Constitution, and a judicial opinion based on personal political preferences for which some kind of Constitutional justification is then invented. For example, when Justice William Brennan proclaimed that the death penalty was in itself “cruel and unusual punishment” based upon “evolving standards of decency” (a thoroughly “living constitution” standard), what makes you think that he was “trying for an original understanding first” but just couldn’t seem to discover it?
It seems to me that the very fact that he applied an “evolving standards of decency” principle proves beyond a doubt that he explicitly rejected the idea that an original understanding of the law should apply. If one is applying an “evolved” standard, then pretty much by definition one is not applying the original standard. His opinion also, it seems to me, proves that he must have necessarily been invoking his own partisan political view of the death penalty. After all, one cannot sensibly claim to be using the “standards of decency” of contemporary society by overturning the very thing that contemporary society finds acceptable enough to have kept as the law. The court has no way of divining what contemporary society might think apart from the laws that it actually implements, so, again pretty much by definition Brennan must have been applying his own standards, not those of contemporary society.
I don’t understand how you can suggest that the differences between originalist and living constitution interpretation are slight and only a matter of degrees. It may be true that these differences only manifest themselves in a small number of politically contentious cases, but that is quite a different thing from the differences themselves being only a matter of degree. Certainly it is hard to imagine Justices Scalia and Thomas pointing out, as they did in their Obergefell dissent, that the Court has become a danger to American democracy if indeed they thought the differences between their own method of judging and that of their progressive colleagues was but a matter of a few degrees in the “weasel room” deliberately left to them by the Founders.
Nor do I understand how you can possibly claim that those who embrace living constitutionalism only do so after having tried and failed to discover the original meaning. I don’t deny the existence of hard cases in which it really is unclear how the Constitution might apply, and the original meaning is indeed indeterminate. Nor do I deny that those who embrace living constitutionalism might seek out and apply the original meaning in some or even many cases. But I do deny that simply because a lawyer or a judge claims that a particular case is a hard case requires us to assume it is. With regard to what the Constitution originally meant, Roe was not a hard case. Obergefell was not a hard case. Furman was not a hard case. And regardless of how many non-politicized cases you can cite in which Brennan or RBG or the Wise Latina looked for and applied the original meaning of the Constitution, in politically contentious cases such as those I list above, it is simply not reasonable to think that they tried and failed to find a clear original meaning. Indeed as I pointed out above, in Furman Brennan explicitly rejected the idea that the original meaning should apply. And Judge Posner (you are a fan, if I recall correctly) has said explicitly that “I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today.” Again, this is an explicit rejection from the outset of the idea of originalism, not simply as a result of being unable to discover it in ambiguous text.
You say that the Court is not partisan like legislative and executive politics. That is probably true for the vast majority of cases that come before the courts. But that is true only because those cases themselves are not politically charged cases. When the Court hears politically contentious cases, it behaves exactly like legislative and executive politicians. It is just as easy to predict how RBG or Kagan or the Wise Latina are going to rule on a case involving abortion or SSM as it is to predict how Pelosi or Clinton or Obama would vote on the issue as a legislative matter. Why? Because they are not ruling based on ambiguous Constitutional language that could have several different interpretations. They are ruling based on politics and their own well-known political inclinations/affiliations. Indeed, they are on the court precisely because of their political inclinations/affiliations. Do you honestly think it is just a mere coincidence that in politically important cases, D-appointed Justices always manage to rule such that D-preferred political policies get implemented as a result of the ruling?
The fact that most of the cases heard by the Court do not have a partisan political aspect to them, and thus may result in living constitutionalists agreeing with originalists or disagreeing with each other, does not mean we must assume that they approach cases with a highly charged partisan political aspect to them in the same way. Indeed, if a judge were ever inclined to issue a politically inspired ruling, it would be precisely in those few cases which have a political aspect to them, would it not? We need to honestly assess their opinions in light of what the Constitution actually says, not in light of a presumption that they are not acting politically, which is simply begging the question. And in the absence of that premise, I think we have long since passed the point at which it is reasonable to give the benefit of the doubt. We must acknowledge that in some cases some judges are more concerned with particular outcomes than with following the law or the Constitution, and that it is precisely the notion of a “living” constitution that gives them the (very thin) veil of Constitutional justification for implementing those outcomes.
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Brennan was wrong, in that case, and it IS an example of “living constitutionalism” run amok.
Addendum: he was wrong because the Constitution strongly implies that the death sentence is lawful when it has been the imposed by due process of law by expressly forbidding it without due process. I wouldn’t be certain he was wrong were there no specific language about depriving life.
Kennedy was surely wrong in Obergefell, but I attribute that to his personal predisposition trumping his general philosophy. I can find cases like that for every justice.
Perhaps more for Kennedy over time than any other.
It’s possible you could find that originalists and strict constructionists don’t succumb to personal predispositions more than living constitutionalists like Brennan. And if you make your case by comparing the wise Latina you would win the argument.
BTW, I consider Roberts an originalist with a pragmatic bent, which is different than being a living constitutionalist. I consider Thomas an originalist who has little use for pragmatism. Earlier in his career Scalia was an originalist who took into account pragmatism particularly about “administration of justice” issues. Late in his career he let personal predispositions interfere, IMHO.
That “equal rights” did not include women by Court edict did not even make sense then, unless you considered the enshrinement of male political power in an all male government to be something that could only change after women had the vote, which they were being denied by the all male government. It seems to me that the first court to rule women had equal rights would have given the language its plain meaning, which would have been a strict construction textual argument, as opposed to an originalist one.
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That last example was supposed to be one where it was obvious that social norms were taken into account at the time, but as norms changed, if the language were to have any meaning, the plain words would give a different result.
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Mark:
Brennan was wrong, in that case, and it IS an example of “living constitutionalism” run amok.
OK, so if we know he was both willing and capable of placing his own politics above a genuine inquiry into the original meaning of the Constitution in the Furman case, how can we tell he didn’t do it in other cases, like Griswold or Roe? What indicates that his reasoning in those cases derived from a sincere but failed attempt to determine the original meaning of some ambiguity in the Constitution, rather than simply as an ex post facto rationalization of a judgement already derived from his personal political inclinations?
Kennedy was surely wrong in Obergefell, but I attribute that to his personal predisposition trumping his general philosophy.
It seems to me that this simply bolsters my point and refutes yours. “Living constitutionalism” is not something that is merely applied after originalism has somehow failed, nor is it different by simply a few degrees. “Living constitutionalism” is a rejection of, and stands in direct contrast to, originalism. And allowing a personal predisposition to “trump” the original meaning of the Constitution is precisely what “living constitutionalism” is designed to justify.
That last example was supposed to be one where it was obvious that social norms were taken into account at the time, but as norms changed, if the language were to have any meaning, the plain words would give a different result.
Why do you think it is the court’s obligation and/or prerogative, rather than the people’s themselves (through their elected representatives), to update laws to reflect changing social norms? And if it is the Court’s obligation and/or prerogative, how should the court go about determining how social norms have changed, and how would you ensure that what the court is doing actually does reflect changed social norms, and not just a personal preference of 5 robed lawyers that social norms should be changed?
As an aside, there seems to be a widespread presumption that if the court does not change its interpretations to reflect changing social norms, those changes can never be reflected in the laws. That presumption is both wrong and, as we have seen, highly destructive of both democratic and federalist principles. The suggestion, for example, that if the Court hadn’t started to read “equal rights” as including women, we would still be living in a time in which women could not own property is utterly absurd.
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Sandra Day O’Connor, for whom the term minimalist was appropriate, suggested that as a rule of thumb when judging social norms to look at what a substantial majority of the states were doing, and wait 20 years, or something like that. IOW, if, say, 35 states had allowed women to vote but the Congress didn’t get around to it for 20 years it might mean she could rely on that as a social norm to incorporate women into the equal protection clause.
She talked about these issues often, and thought about them a lot. She was very aware that LAWYERS and commercial interests hated for the law to change from the bench, by surprise, as it were. She also was imbued in the common law tradition of the founders – that is, courts by their decisions do indeed make law and did so in 1789, 1866, and now. So she was not against incorporating a changed social norm, if it were obvious, widespread, and of 20 years standing.
That was one way of looking at it.
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mark:
Sandra Day O’Connor, for whom the term minimalist was appropriate, suggested…
Thanks. But I was particularly interested in what you think.
She also was imbued in the common law tradition of the founders – that is, courts by their decisions do indeed make law and did so in 1789, 1866, and now.
This is a pretty facile justification for expanding the power of courts. Yes, there can be hard cases in which the Court has no real guide from existing law on what to do. That does not justify turning the courts into a super-legislature.
That was one way of looking at it.
I kind of like the way Article V of the Constitution looks at it. Leaves the power with the people rather than with a bunch of Ivy League lawyers.
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The most important place where I deviate from the strict constructionists is that I believe that a charter type of document like a constitution, as with any law of general application, must be construed liberally to achieve its intended purpose, which always leaves the question of intended purpose to be addressed.
The most important place where I would deviate from “originalism” is that in my own conception of original intent there is no sense that definitions are buried in the late 18th Century – the Founders never expressed that as an idea and never meant their framework to do anything but be a framework, not a rigid construct.
Heller was passed off as “originalist” but I don’t think it was at all.
SDO’C’s dissent in Kelo makes more sense to me, even though the Supremes had allowed private eminent domain since the late 1800s, to the railroads. A private purpose could serve a public one, but making revenue raising the public purpose destroys the distinction. I and Scalia agreed with SD O’C on this.
I don’t know if the first railroad cases were a product of living constitutionalism, but I don’t think they were. I think they were a product of inference. The nation needed the railroads. The railroads served a public purpose. The railroads were privately owned. Therefore the private owners could have eminent domain to serve the public purpose. Same with pipelines. Then the same with urban renewal. But Kelo, to me, is a stretch too far simply because it leaves the public-private distinction in shreds.
Gorsuch was in the majority on his frozen trucker case. If you read it, you know he followed the strict construction of the law. Plausible. I would have probably written that being unable to drive a crippled vehicle in a blizzard was a subset of driving as an employee function, and voted in the minority, where I would have been joined by a leading conservative jurist of our time.
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Mark:
The most important place where I deviate from the strict constructionists is that I believe that a charter type of document like a constitution, as with any law of general application, must be construed liberally to achieve its intended purpose, which always leaves the question of intended purpose to be addressed.
I would suggest that the notion of a “living constitution” has thoroughly destroyed the intended purpose of the Constitution, which was to ensure self-rule and define the limits of the power of the federal government. The federal judiciary now prevents self-rule and has rendered the power of the federal government – which we should remember includes the federal judiciary – to be essentially limitless.
The most important place where I would deviate from “originalism” is that in my own conception of original intent there is no sense that definitions are buried in the late 18th Century – the Founders never expressed that as an idea and never meant their framework to do anything but be a framework, not a rigid construct.
I’m not sure I really understand the distinction you see between a “framework” and a “rigid construct”. A “framework” is distinguished from a complete structure like a house in that the complete house is fully laid out with rooms, walls, windows, etc, whereas a framework is just, well, the frame, and the inside can still be laid out or defined in many different ways. But the framework still has to be a “rigid structure” to be at all meaningful or useful.
So I agree that the Constitution was meant to be a “framework”, but a very part of that framework is that the details that are yet to be decided were deliberately left to be defined by legislatures, not by judges. And that is indeed a “rigid” part of the framework. You are right that the framers did not want the law to be buried in the 18th century, which is why they 1) allowed for the existence of legislatures and 2) created Article V, explicitly allowing for the Constitution itself to be changed. I don’t know of any evidence that the framers expected or desired that Judges would re-interpret the words of the Constitution to mean things that the framers themselves did not mean when they wrote them.
The assumption that the meaning of the words of the Constitution (or any law) should be understood to be fluid from one generation to the next based on alleged changing social attitudes renders the interpretation of law to be unmoored from any grounding whatsoever, and transforms the judiciary from the most constrained branch of government, as it was intended, into the least constrained. The people do not need judges in order to have the law reflect changing social attitudes. The can change or pass laws themselves. If the notion of equal rights meant one thing when it was written, but the people now take it to mean something else, they can change the law. The “judgement” of judges quite simply is not needed for this task. And when a judge is not concerned with applying the law as it was written and meant by the people who wrote and passed it, and abrogates to himself the freedom to redefine the words of the law in whatever way he sees fit (always with the ironic and counterintuitive claim that “society” agrees with him), then the idea of self-rule and the rule of law no long exists.
BTW, it strikes me as somewhat strange to say that your own conception of “original intent” includes reinterpreting words and concepts as times change. That seems to me to be like saying that your idea of a square includes circles. Reinterpreting words and concepts as times change is not original intent by definition.
But I want to get back to your original claim that the difference between the likes of Brennan and Scalia is a mere matter of degrees, and that Brennan could be expected to seek out the original meaning first, if at all possible. Do you really think it is the case that, in Roe for example, Brennan was seeking to understand whether or not in an original understanding of the Constitution, states were allowed to prohibit abortion? Or is it more likely that, as I believe, Brennan didn’t care at all what result an original understanding of the Constitution would produce, that he believed as a matter of policy that abortion should be legal, and that he was ultimately just seeking to craft an after-the-fact justification for a judicial ruling that would result in the policy that he preferred?
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I actually think we are talking past each other. I don’t think the meaning of words change. I do think accepted concepts of how extensive the legal rights are that are encompassed by the words may change.
The post Civil War amendments were initially meant to free the slaves, but in debate on the Senate floor it was clear that the majority thought it applied to the Chinese laborers working on the transcontinental railroad system, as well.
Nevertheless, the Supremes refused to apply the laws written under those amendments to the Chinese-Americans. Just omitting that part of the legislative history from the next 60 years of cases wasn’t my view of originalism, but is sometimes cited for “original intent”. IMO, that debate on the Senate floor would have probably had an analogous result if someone had raised the issue of Mexican-Americans, but no one did, largely because they were rich landowners in the southwest at the time, and had not been subjects of involuntary servitude or denial of the vote. All that came when waves of poor immigrants from Latin America came, later, and for a long time no state or federal court thought segregating them and keeping them from voting or from marrying anglos was a bad idea. So is my idea of original intent less worthy than the ideas espoused as original intent by courts that did not like extending equal rights to non-whites, non-males, etc.?
Hamilton opposed the wording of the Second Amendment because of his hatred for slavery and because the words were identical to the words of Bahamaian law protecting the planters from their slaves, who outnumbered them 10-1. The words were indeed a southern planter construct which the northerners accepted over Hamilton’s disgust in part based on a compromise about slavery that pushed off any reckoning for the time being.
I think “originalism” should not be a tool of certainty that picks up one side of a spirited debate, which it often has become.
I think you are somewhat blind to the notion of liberal construction to achieve a general purpose and strict construction that can strangle a general purpose. We strictly construe language against the state in criminal law and against the draftsman in contract law, and liberally construe it if there is a general purpose stated, or in the case of a statute, it may be liberally or strictly construed based on a mandate to do so within a statute.
The more interesting question than Roe is what we think about Griswold. And I am not prepared to argue that from either side this morning, professor.
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Mark:
First, I think we should be clear that there are, in fact, subtle differences between strict construction, textualism, original intent, original meaning, etc. You seem to be using them each to refer to the same general idea, which I am fine with, but my understanding is that they are, strictly speaking, different. With that caveat…
I do think accepted concepts of how extensive the legal rights are that are encompassed by the words may change.
Accepted by who, the people or SCOTUS?
The post Civil War amendments were initially meant to free the slaves, but in debate on the Senate floor it was clear that the majority thought it applied to the Chinese laborers working on the transcontinental railroad system, as well.
This is relevant if the questions is “What did the law mean to those who passed it?” But the debate between originalists and living constitutionalists does not revolve around disagreement over what the words meant to those who wrote it. It revolves around whether or not what the words meant to those how wrote it is important in the first place. Let me ask you this:
Assume for the sake of argument that we know without doubt that those who wrote and ratified the 14th amendment did not intend it to apply to Chinese laborers or Mexican immigrants. Under what circumstances would it ever become the prerogative/obligation of the court to read it as if it did apply to them?
(BTW, I don’t know if Scalia ever addressed this, but I think his textualism resolves this issue easily. What did the ratifiers of the 14th amendment understand the word “person” to mean? If they understood it to mean born human beings, which is most likely, then the Court should read it as applying to all born human beings, which would include Chinese laborers and Mexican immigrants.)
The more interesting question than Roe is what we think about Griswold.
I am happy to discuss either, and in fact perhaps Griswold is an even better example. But wholly apart from detailed arguments in one or both, what I am really interested in is how you justify your belief that Brennan first sought out the original meaning of the Constitution, and it was only an inability to uncover any such original meaning with regard to the vexing question of whether states are Constitutionally empowered to restrict access to birth control or abortion that forced him to apply those ghostly penumbras formed by emanations.
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Textualism helps with the word “person”, but doesn’t resolve it. If it did, then children would be equal in rights to adults.
Blackmun absolutely did try to go back to 1793 or so with his analysis in Roe. There were no state laws against abortion until many years later. 3. The common law. It is undisputed that at common law, abortion performed before “quickening” – the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy 20 – was not an indictable offense. 21 The absence [410 U.S. 113, 133] of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins.
Connecticut, the first State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough’s Act that related to a woman “quick with child.”
Thus there would not have been a question in the minds of the founders as to whose life took precedence between a mother and a fetus pre-quickening.
But we have been all over that territory 100 times. White and Rehnquist dissented. Brennan did not write separately.
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Mark:
Blackmun absolutely did try to go back to 1793 or so with his analysis in Roe. There were no state laws against abortion until many years later.
He pointed that out merely as a matter of context in reciting the history of abortion law in the US, and to show that bans against abortion were not a part of common law. But of course the absence of state laws banning a particular action in 1789 in no way whatsoever implies a lack of Constitutional authority to enact such a ban, which was the issue under question. In 1789 there were no state laws banning the production or use of alcohol or drugs. Would Blackmun have believed (or do you believe) that such a fact meant that states do not have the Constitutional authority to ban the sale and use of alcohol or drugs? I doubt it.
Thus there would not have been a question in the minds of the founders as to whose life took precedence between a mother and a fetus pre-quickening.
Perhaps, but that is irrelevant to the question at hand, which is whether or not there was a question in the minds of the Founders as to whether a state had the Constitutional authority to regulate/prohibit abortion. Do you think there was any real question about that? And do you think that it mattered at all to Brennan et al whether or not there was any such question in the minds of the Founders?
White and Rehnquist dissented. Brennan did not write separately.
I understand that Brennan did not write the opinion in either Roe or Griswold. But he did sign his name on an opinion in each, and presumably he engaged in some reasoning process to decide which opinion to sign onto. My question is what evidence there might be to suggest that a genuine search for the original meaning of the Constitution was at all relevant to his reasoning process, as you said you believed he was most likely to do.
Just to be clear, my interest here is not to re-litigate Roe or Griswold, but merely to establish the credibility of the notion that Brennan (or any living constitutionalist) cared one iota about the original meaning of the Constitution when deciding cases with politically contentious implications.
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Scott – No founder would have ever had to consider the issue in 1793. Before the Civil War amendments the federal rights were more limited wrt the states. The analogous question would have been had Congress outlawed abortion of pre-“quickened” fetuses would all the Founders have thought that an enforceable criminal statute.
My guess would be that Adams would not have thought that enforceable as a criminal statute because of the then prevalent notion that an unquickened fetus was part of the mother, who did have some legal rights regarding her own person. But I don’t know that and the point is that no one does, absent an explicit writing. So one tries to first determine what the founders thought about the liberty interest wrt women and fetuses before venturing into suggesting what it might be in 197_.
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Mark:
Before the Civil War amendments the federal rights were more limited wrt the states.
Right. Then I assume you acknowledge that, absent the 14th amendment, a state was perfectly within its Constitutional authority to prohibit abortion. So then the question becomes: would the ratifiers of the 14th amendment have understood the 14th amendment to have removed that Constitutional authority from the states? Given that, at the time of ratification of the 14th, laws prohibiting abortion (even pre-quickening abortions…see New York, 1829) were already on the books in various states, and not only did it not occur to literally anyone that those laws had suddenly become unconstitutional, but in the immediate years after ratification, the number and degree of laws passed by states prohibiting abortion started to actually grow, and continued to do so for nearly the next 100 years, it seems to me very difficult to reasonably conclude anything other than that they did not.
And, so again to get back to the original thread, I am left to wonder: what evidence is there for the notion that such an original understanding is at all relevant to living Constitutionalists like Brennan, especially in cases like Roe?
So one tries to first determine what the founders thought about the liberty interest wrt women and fetuses…
No. A court would first have to determine that the authority to decide what liberty interests exist wrt abortion rest with it, and not with the state. And it seems to me that in that regard for both the Founders and the ratifiers of the 14th, there isn’t much doubt what they thought.
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Mark:
Below is an informal “debate” between Breyer and Scalia. The whole thing is interesting, but the period between 23:30 and about 46 minutes is particularly relevant to our recent discussion. I thought it was notable that, despite claiming there were many, Breyer couldn’t/wouldn’t cite a single instance in which the law dictated a result with which he disagreed as a matter of policy or justice. (That was around the 12 minute mark.)
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BTW Mark, I was stuck in a hotel room this morning for a few hours, so I listened to the oral arguments in Obergefell. It is quite remarkable the degree of question begging that Kennedy and the lockstep liberals engaged in.
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Scott wrote:
Given that, at the time of ratification of the 14th, laws prohibiting abortion (even pre-quickening abortions…see New York, 1829) were already on the books in various states, and not only did it not occur to literally anyone that those laws had suddenly become unconstitutional, but in the immediate years after ratification, the number and degree of laws passed by states prohibiting abortion started to actually grow, and continued to do so for nearly the next 100 years, it seems to me very difficult to reasonably conclude anything other than that they did not.
We have absolutely no idea what the draftsmen of the 14thA thought about abortion because it was never discussed. Most of the ramifications of the 14thA occur after the fact, through enabling legislation or litigation. It would not be unfair to conclude as you have, by inference drawn from silence. But it would not be other than an inference, which is the point here.
Incorporation doctrine for the most part seems inescapable as you read it case by case. The discussions of what bound the states in those Amendments in the late 1860s were about the notion that existing federal rights of citizens were now to be recognized as binding against the states.
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.
and
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
So due process at the federal level meant a right to notice, representation, and a fair hearing before life, liberty, or property could be taken. Wasn’t any stretch at all to say the 14thA due process was no less favorable to a citizen against his state than it was against the federal government under the 5thA. And if 5thA guaranteed the 1st, 4th, 5th, 6th, 7th, and 8th As, against the feds then, as these are rights in a court room, it was easy for courts to say this is also what the 14th guarantees against the states, because that seems patently consistent with the meaning of procedural due process as it was understood by the Congress in 1868.
Was there a federal court challenge to state criminal statutes against abortion before Roe? I don’t know.
Was there a federal court challenge to criminal laws against using a condom in your own home before Griswold? I don’t think so.
Unless you deny the power of judicial review you are forever stuck with serious arguments about the extent of the implications of legal rights emanating directly from the Constitution being within the purview of federal judges.
I will read the Breyer-Scalia stuff.
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Mark:
So due process at the federal level meant a right to notice, representation, and a fair hearing before life, liberty, or property could be taken.
Agreed. What it did not mean, however, was that people had a right to own guns, or a right freedom of religious practice. Those rights had to be stated explicitly and separately in order to be guaranteed.
Wasn’t any stretch at all to say the 14thA due process was no less favorable to a citizen against his state than it was against the federal government under the 5thA.
Agreed. But it also isn’t a stretch to say that it was no more favorable to a citizen against his state than it was against the Feds under the 5th, which it seems to me is what you want it to be.
And if 5thA guaranteed the 1st, 4th, 5th, 6th, 7th, and 8th As, against the feds…
It is of course true that procedural rights are necessary to the protection of other rights. Otherwise law enforcement could simply abridge those other rights at will and without consequence. But the mere existence of procedural rights does not imply anything about rights towards which those procedural rights will act as a guarantee. For instance, due process rights are necessary to help protect the right to own a gun, but the existence of due process rights does not in itself imply a right to own a gun. That right had to be explicitly guaranteed wholly apart from due process rights, otherwise it would not be guaranteed. It is quite easy to imagine a Constitution that granted due process rights, but did not protect the right to own a gun. (Indeed, a very large number of people in the US think it ought to do just that.) In other words, it is entirely possible for due process rights to be guaranteed without guaranteeing any other rights at all.
And so I don’t understand your conclusion that if the 14th guarantees due process, it must also guarantee other substantive rights. It is very clear that the Framers believed that individuals could have certain rights guaranteed with regard to the federal government, but not necessarily with regard to state governments. And they designed a Constitution that allowed for exactly that. Hence the words “Congress shall make no law…”. So if it is possible for citizens to have certain rights relative to the federal government but not relative to state governments, why is it not possible for that to remain the case with the exception of simple procedural rights?
Let me ask you this. Suppose I was writing the 14th amendment and through it I wanted to force the states to provide the same procedural protections with regard to its law enforcement that the federal government guarantees to citizens with regard to federal law, but I still wanted states to retain the same powers with regard to the first and second amendment that they always had. In other words, I want states to be able to prevent private ownership of guns, or to establish state run religious schools, or prohibit abortion if they so desire, but if they do, I still want them to be forced to apply them with “due process”. How would you suggest the 14th be re-worded in order to achieve this goal?
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CNN goes all in:
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That is a Weasley paragraph.
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Looks like FOX is going all in the other way.
http://www.foxnews.com/politics/2017/03/23/potential-smoking-gun-showing-obama-administration-spied-on-trump-team-source-says.html
Be ironic if Jay Rosen’s sources are correct and have him the scoop.
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