I'm delighted to report that I've just received word from Cato that the audio book version of The Conscience of The Constitution, as well as a paperback edition, will be coming soon. I will, of course, post word details when they become available.
I posted this in a response to a comment on Facebook, but it's probably worth repeating here.
I've never been arrested, or even ticketed. My interactions with the police have never been negative in any way. But I've been wrongly accused of things a couple times, and in school I was sometimes punished wrongly, or excessively. I was once punched in the face by another kid in junior high (he mistakenly thought I'd stolen something from him). The principal insisted on punishing us both, though I'd done nothing wrong.... Things like that.
On another occasion, I experienced a severe invasion of my privacy at the hands of college officials.
These things don't still sting. They still burn. I still feel, not just sad, nostalgic frustration, but a bitter, furious, acid outrage, when I think about them. I feel quivering anger from my head to my toes about them. I feel it difficult to even discuss some of them with loved ones.
I can only imagine how vastly more outraged I would be if I were wrongly arrested, if my home were unjustifiably searched, or if the government did to me what the college did to me. It would likely infuriate me so intensely that I would hate for the rest of my life the people and institutions responsible for making them happen, and it would be a very long time and take a hell of a lot of work to persuade me to forgive them or to believe that such things would not happen again. And it would likely be impossible to persuade me that I need not fear and distrust anyone in a position to do something similar to me. In short, it would almost certainly make me view society as them versus me in the same way that I still, decades later, think about the school authorities and peers who treated me as I've mentioned.
Irrational? Perhaps. I don't think so, but does it matter? And if that is how I'd react to a single wrongful arrest, I cannot possibly imagine the rage and indignation that I would feel if I were regularly accosted by the police, questioned, detained, searched, arrested, or even just heckled. Or even just ignored when I needed help. I would feel not like a citizen but like a subject. Not like a fellow American, but like a detained, suspected, alien.
Jefferson said that he thought this the strongest government on earth, "the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern." If many black and Hispanic Americans, and the residents of our inner cities, do not feel this way--especially after four decades of an unconstitutional, unwinnable, immoral war on drugs--well, I find it hard to blame them.
Prof. Somin misses my point when he says that the Constitution is for ordinary people and is meant to be understood by ordinary people. I agree with that completely, of course. But how do they understand it? By engaging in what Daniel Webster called “refining, defining, and splitting hairs”—that is, by engaging in the practice of law. So my point isn’t that the elite reading of a document should govern. It’s that the ordinary language should, and always does govern, because all the “elites” are doing is the same thing that “ordinary” people are doing, if the latter just thought about it.
Consider: Prof. Somin writes that “Legal experts today know more...than ordinary people today about how the ordinary people of 1788 or 1868 understood the meaning of parts of the Constitution enacted at that time.”
So, then, which should govern our constitutional interpretation of, say, “privileges or immunities of citizens of the United States”?Today’s ordinary people have, I think it’s safe to say, hardly a clue what these terms mean. They do not know that “privileges and immunities” is a legal term of art that appeared in the Articles of Confederation, and has roots as far back as Magna Carta. They would probably think of “privileges” and “immunities” as two different things; and indeed, “privileges” in ordinary parlance today means discretionary benefits, not rights, which is what the term means in its specialized, “elite” usage. So which should govern?
Prof. Tom W. Bell has argued that the meaning ascribed by today's ordinary person should govern, not either the specialized legal understanding or the general understanding in 1868. We’ll put that aside for now. Prof. Somin argues that the contemporary popular understanding should not govern. Instead, he argues that the meaning ascribedby today’s elites to ordinary people in the past should govern. But this is not “populism”; it’s elitism! Popular folks today don’t know or care what ordinary people back then thought these words meant, and they can only find out by engaging in “elite” methods. As Prof. Somin acknowledges, it’s today’s legal experts who know (or claim to know) what the 1868 ordinary folk meant by that term. But today’s legal experts are the elite. So by employing that interpretation, a judge would be applying an elitist understanding, not a “popular” understanding. Yet at the same time, he can rightly claim that he’s actually employing a popular understanding, because it has its roots in what ordinary people thought, and because ordinary people today, trying to interpret a document from the past, will look at what the people in the past thought.
The point is, any specialized interpretive model that lawyers adopt and stick to, as long as they stick to it, becomes by virtue of that very fact, an “elite” understanding, because it is a methodology that they, the elite, employ as a technical device to interpret the language. But that is what any language-user does. Which means that it is also an “ordinary” understanding. Is a person who uses a dictionary following ordinary usage? Or is he, by relying on a dictionary prepared by language experts, in order to use a specific, precise term, employing an “elite” understanding?
Consider: if an ordinary person wanted to know what the “Privileges or Immunities” Clause meant, what would he do? He would get down the history and law books and look up how people in 1868 understood “privileges or immunities,” wouldn’t he? But he would then be doing the same thing that the “elite” lawyers do. On the other hand, if he just used the terms without such a reference, he would not be employing some special “popular” understanding of the language; he’d be employing no particular understanding at all, and he would likely admit as much to a neighbor who challenged him that he was trying to interpret the phrase without making the proper inquiries. On the other hand, if he went out and looked the phrase up in dictionaries, or took polls to find out what people thought the words mean...he would again find himself in the elite, since people don’t typically do this when speaking.
Law, like poetry, is “heightened speech.” It is the use of words in a special, careful, techincal sense. Everyone does this, including ordinary people. Heck, children do it: if you tell a child not to eat his dessert early, and he eats a cookie, you can pretty much bet he’ll start debating with you about whether a cookie is a “dessert” or just a “snack.” That gradually evolves into whether a houseboat is a “vessel,” or what is chicken? Law just is the use of language, and there is no qualitative distinction between “elite” and “popular” understandings of language; there’s a spectrum of understanding based on our background, our research, the likely consequences of different interpretations, and various other factors. And that is just what “ordinary” language users do all the time.
Of course, the “elites” may adopt a wrong interpretation of a term, and stick to it, but in those cases, the “elite” understanding is not wrong qua “elite,” but qua understanding. The problem there is that the cases are wrongly decided, not that the popular/elite distinction has in some way broken down. A parent might indeed wrongly decide that a cookie is a dessert, but not because he’s an adult; it’s just wrong (if it is wrong) because a cookie not a dessert.
Because there is no qualitative difference between “popular” and “elite,” but the two float back and forth and interact with each other, with “popular” langauge-users employing “elite” methods, and the “elite” trying to understand what “popular” language-users meant when they spoke, the purported distinction between the two is not a useful device for legal interpretation, and is a basically hypothetical and unnecessary dispute.
Ilya Somin's post this morning on "elitist" versus" populist" originalism--that is, whether the originalist should look at the "public meaning" (what ordinary folks would have thought the words meant) or at the "expert understanding" (what lawyers and Constitutional Convention delegates would have thought the words meant)--reminds me of the dispute between the majority and concurring opinions in Wayne County v. Hathcock.
That was the case in which the Michigan Supreme Court overruled the infamous Poletown eminent domain decision. Although Justice Weaver agreed with that result, he disagreed with the way the majority got there. The majority had concluded that the "public use" limitation on eminent domain should be understood in the way that "an individual versed in the law before the Constitution's ratification would [have] underst[ood]d that concept" at the time. Justice Weaver, on the other hand, thought that the terms should be understood as the populace would have understood it: "The majority's focus on the understanding of those 'sophisticated in the law' is elitist," she wrote. "It perverts the primary rule of constitutional interpretation — that constitutions must be interpreted as the people, learned and unlearned, would commonly understand them. It invites the erosion of constitutional protections intended by the Michigan voters who ratified the 1963 Constitution. The majority's approach ignores the words of Michigan's respected jurist, Justice Thomas M. Cooley, who warned against the tendency to force from the Constitution, by 'interested subtlety and ingenious refinement,' meaning that was never intended by the people who adopted it."
The majority responded in a footnote that it was "hard pressed to understand what differentiates Justice Weaver's construction from our own," because both she and they agreed that the term "public use" was "a technical term," that "must be read in light of its 'legal and constitutional history'.... If there is any meaningful difference between reading a constitutional term according to its legal history because the ratifiers understood that the term was one with a technical meaning (our position) or because the ratifiers themselves were familiar with that legal history (Justice Weaver's position) it is one we find difficult to discern."
But Justice Weaver thought that the "sophisticated in the law" approach was "subject to abuse" because it "invites the erosion of the limitations placed on the exercise of eminent domain," and "invites 'sophisticated' refinement of the people's 'right to govern' themselves through their popular vote. It allows the 'sophisticated and learned in the law' to, intentionally or not, strip constitutional provisions of their context and manipulate and distort their meaning."
To someone who, like me, is not comfortable calling himself an "originalist," this seems like counting angels on the head of a pin. If anything, while Justice Weaver's position sounds persuasive, she seems unable to show any real substantive importance to drawing this elitist/populist distinction. The judges are experts, that's true--but that's just why the people choose them to run the courts. If the people are dissatisfied with the results, they'll have to find some plausible substitute, and there are plentiful ways of doing this: constitutional amendment, choosing different judges, limiting jurisdiction, and so forth.
One plausible distinction is this: the Michigan Constitution was ratified in 1963, almost a decade after the Supreme Court had essentially destroyed the public use limitation in the federal Constitution in Berman v. Parker. It's certainly plausible that when the authors of the Michigan Constitution used the same term in the state Constitution, they expected it to be interpreted as broadly as the Berman Court had interpreted the "public use" clause in the federal Constitution. One might say that this is an "elitist" position because the general public hadn't heard of Berman, and didn't know that that's how lawyers would read it.
But surely the populace is on notice that terms in the Constitution are very important, are pored over by lawyers and judges, and are interpreted in light of other precedents. They are therefore ultimately responsible for choosing words that avoid results they don't like, such as incorporating the Berman interpretation of "public use" into their state Constitution. If they fail to take such precautions, then the law presumes that they've done what they've done intentionally. If they later decide that was a mistake, then either (a) the precedent on "public use" was wrongly decided, and should be overruled for that reason, or (b) the people can use the tools at their disposal to alter the constitutional wording. But I see no way that this problem breaks down along epistemological grounds, or that it can be understood along the axis of elites versus populism. This problem is better understood as an ordinary problem of constitutional interpretation--does "public use" include economic development or not?--than as some deeper problem of interpretation, or at least, a problem of interpretation that turns on the question of elites versus the populace.
And trying to analyze it in terms of the latter, and to take a position on the side of such a vaguely defined concept as "populism," seems to invite the eradication of all law, essentially. What I mean by that is, law consists almost entirely of a very refined and specialized use of language. That refinement and specialization is within the grasp of the ordinary person, but most ordinary people don't bother trying it: they (rationally) leave that task to legal experts. If the experts do something wrong, then the people can use their retained power to fix the problem. But to say that there is some fundamental problem with the lawyer's technical use of language does not help. What, after all, are we to replace it with? Daily polls of what people think the terms mean? Then who will take the polls? And who will interpret these polls? And then aren't the interpreters doing just what judges already do: figuring out what people think the words mean?
A judge who tries to implement some distinctively "populist" understanding of the law will soon find herself in the "elite" category. This is because there is no qualitative difference between the "technical" use of a word and the ordinary use of the word; one shades into the other, and members of the populace have varying degrees of understanding of these meanings. Once she finally decides that a term's "popular" meaning is X, then that interpretation will affect how ordinary people use the term the next time around. They may avoid using the term entirely because they don't want to be understood as saying X. Or they may purposely employ the term in a different way in order to rebel against meaning X, which they dislike (the way many libertarians insist on calling themselves "liberals"). Or they may keep using the term, thinking it meant X all along. Then when the next case comes along involving that term, or something similar to it, the judge will rely upon her previous precedent holding that it means X...and gradually the term's meaning becomes more refined and more "technical." That's just how "terms of art" are born. And a decade later, someone new accuses the judge of using "elite" language.
Prof. Somin wrotes that "[e]litist originalism leads to...research focused on the views of legal and political elites. By contrast, populist originalism requires us to do more research on the constitutional beliefs of ordinary people." But that is not so strong a distinction as he seems to think. The legal and political elites are presumably employing what they believe is the proper use of the language, and so do the ordinary people. One side or the other may be wrong, but they are speaking the same language, so the question is not which side we should listen to, but which side is right. This is particularly true when (as in the case of the 1787 Constitution) the elites view themselves as the deputies of the people, chosen to act as experts on behalf of the people, and who themselves point to the people as the source of constitutional authority. The legal and political elites' understanding of the terms is important because they are experts, chosen for the task of drawing up the text. The public's understanding is important because they breathe life into the Constitution. But these are not two different languages that can be researched separately. And there cannot be a robust distinction between "elite" and "populist" originalism for just that reason.
In short, it's true that the elites might decide that a term like "public use" means one thing, while the average person thinks that's wrong. That happens very frequently, in fact. But that does not mean that there is some distinction that can be incorporated into the discipline of the law itself.
Meanwhile, Sen. Rand Paul says "The Conscience of the Constitution posits a role for the Fourteenth Amendment in protecting natural rights from abuse at both the federal and state level. It is a great defense of individual liberty."
John Varley’s latest novel, Dark Lightning, is a marvelous conclusion to his four-part “Thunder and Lightning” series: exciting, inventive, and written with that incredibly smooth prose style that draws your eye through 50 or 100 pages before you even think of what time it is. Although the Thunder and Lightning series isn’t my favorite of his work—it’s aimed at a younger audience, and lacks some of the depth and darkness that flavors his best books—Dark Lightning is probably the best in the series, and marks a satisfying return to the realm where Varley is always at his best: the distant future.
Longtime readers of this blog know Varley’s my favorite writer. He exploded onto the scene in the late 1970s with a series of short stories (the best are collected in The John Varley Reader and other anthologies) and then the astonishing Gaea trilogy, Titan, Wizard, and Demon, which remain his greatest achievement. When he went to Hollywood to develop Millennium into the disappointing film of that name, he disappeared from publishing for quite a while, only to reappear in 1992 with the mind-boggling Steel Beach. He followed that up with The Golden Globe, and the standalone novels, Mammoth and, most recently, Slow Apocalypse. In the meantime, he began the Thunder and Lightning series, inspired by Robert Heinlein’s young adult novels, which center around the family of Travis and Jubal Broussard, the latter of whom invents a device that enables man at last to reach the distant stars.
Dark Lightning is set in the next century, and is told from the perspective of Jubal’s twin daughters, Polly and Cassie, who alternate as first-person narrators from chapter to chapter. Varley has always preferred strong female leads, and Cassie and Polly are distinct, believable, and sympathetic personalities who grow into Varley’s trademark hardheaded resourcefulness—an improvement over the bland characterization of Slow Apocalypse. They live in the starship Rolling Thunder, introduced in the previous novel, which is made from a hollowed-out asteroid which rotates to simulate gravity. Rolling Thunder is seeking out a new world for humanity to colonize, now that Earth has been rendered uninhabitable by the alien invasion documented in the last book.
This furnishes Varley with another opportunity to create an entire world—something he’s awfully good at. His wild imagination and astonishing gift for realism are on display in a series of vivid passages, including one particularly dramatic chase. But for all its fast pacing, Varley also slows down to give us real people and real concerns, in just the right amounts, and gives us just enough violence (and very little sex) so that Dark Lightning will appeal strongly to the young adult audience without boring older readers. Relatively speaking it’s only an overture to the symphony that is the Gaea trilogy, or the concerto of the metal series, but it lives up to Varley’s very best work. Above all, there’s that apparent effortlessness—the deft touch with detail and pacing that sweeps the reader along so swiftly that you must force yourself to pause and reflect on how much work it takes to write a novel so that looks like it was no work at all. Honestly, he writes like Gene Kelly danced—like there ain’t nothin’ to it.
Still, I prefer the stronger liquor. Shortly after Steel Beach—his best single novel—appeared, he announced that he would shortly publish Golden Globe, and then finish the series with Irontown Blues. It’s now been twenty years, and the latter still awaits development. Here’s hoping that with the conclusion of Thunder and Lightning, he’ll be able to return his attention to that project.
My friend Dan Caldwell of Concerned Veterans for America talks with Reason TV about the VA scandal. "This is not a resource issue at the V.A.... This is an issue of...a management that...knows it doesn't have to do its job to get bonuses and keep their jobs."
Undoubtedly one cause of the tendency of scientific law to become mechanical is to be found in the average man's admiration for the ingenious in any direction, his love of technicality as a manifestation of cleverness, his feeling that law, as a developed institution, ought to have a certain ballast of mysterious technicality. "Philosophy's queerest arguments," says James, "tickle agreeably our sense of subtlety and ingenuity." Every practitioner has encountered the lay obsession as to invalidity of signing with a lead pencil. Every law-teacher has had to combat the student obsession that notice, however cogent, may be disregarded unless it is "official." Lay hair-splitting over rules and regulations goes far beyond anything of which lawyers are capable.
--Roscoe Pound, Mechanical Jurisprudence, 8 Columbia L. Rev. 605, 607 (1908)
This is my personal blog. The opinions expressed here are my own, and in no way represent those of the staff, management, or clients of the Pacific Legal Foundation, the Cato Institute, or the McGeorge School of Law.