Some Wacky Poll Results In New York

[Andrew D]

Nice essay, Andrew.

Too bad the USSC is prohibited from giving advisory opinions.

What "advisory opinion"?

In McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), Clarence Thomas opined:

I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” I write separately because I believe there is a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment's text and history.

Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment's Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” and “‘deeply rooted in this Nation's history and tradition’”. I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause.

(Citations, internal quotation marks, and such omitted.)

What part of that is an adivsory opinion?

The plurality responded to Thomas:

For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause.

What part of that is an advisory opinion?

Put up or shut up, dgs49. If you can explain why the application of the Bill of Rights to the States should be analyzed under the Due Process Clause rather than under the Privileges or Immunities Clause, please do so.

Or if you can explain why the application of the Bill of Rights to the States should be analyzed under the Privileges or Immunities Clause rather than under the Due Process Clause, please do so.

Or if you can explain why the application of the Bill of Rights to the States should be analyzed under both of those clauses, please do so.

Or if you can explain why the application of the Bill of Rights to the States should not be analyzed under either of those clauses, please do so.

Or not. You don't have the faintest fucking idea whether the application of the Bill of Rights to the States should be analyzed under the Privileges or Immunities Clause, the Due Process Clause, both, or neither. And you don't care.

By now, everyone on this board has seen over and over and over what your approach to constitutional law is: "If I agree with it, it's constitutional, and if I don't, it's not."

But a Constitutional Convention might be a good idea. No lawyers allowed.

Well there's a brilliant idea. While we're at it, let's formulate new standards for medical treatment. No doctors allowed. And new standards for structural engineering. No engineers allowed.

Your sole reason, dgs49, for not wanting lawyers involved in your proposed Constitutional Convention is that only if no one there understands the law will your views be given even a moment's serious consideration. When the opinions of people whose knowledge of the law is greater than yours -- which is to say people whose knowledge of the law will not fit on a postage stamp -- your views will be greeted with nothing more than derisive snorts. Which is exactly what they deserve.

(Edited for spelling error.)

[Sue U]

There now follows a couple of genuine question for the Americans in our midst from somebody who has little or no knowledge of the American constitution or consitutional law (but still is enough of a pedant to be irked with non-Americans who want to "plead the fifth"):

Does it bother you that there are elements of your constitution which are open to interpretation rather than being black and white?
Why is this allowed to continue?

The genius of our Constitution is that it doesn't even attempt to address all contingencies in black and white; it provides only a schematic for organization of the (federal) government, apportioning powers among the branches, and setting out principles of liberties in the Bill of Rights. How governmental powers might be limited and liberties secured under any particular set of facts in a given case is left for us to decide according to those principles. In my view, this is precisely what has enabled so brief a document to endure for more than two centuries as the foundation of our society.

[Lord Jim]

Well said Sue.

[dgs49]

My Dearest Andrew:

As you very well know, my comment about "advisory opinions" was a reference to the fact that the USSC is constrained to hear only real cases, and may not provide any binding guidance on new (or even proposed) legislation. Such a mechanism would have been extremely helpful at the time of the passage of, for example, the odious McCain-Finegold law, which took years to work its way up the court system, and even now has not been fully adjudicated as to its constitutionality. [Tangentially, I would say that most Congresspersons and elected executives fail totally in their obligation to uphold the Constitution when they make no independent analysis of the constitutionality of what they are doing].

As for the application of what have come to be deemed fundamental rights of the first ten Amendments to the states, there is nothing magical about the Fourteenth Amendment that compels the current state of "constitutional law," whether individual rights are said to be justified by the "due process" clause, the "priveleges and immunities" clause, or anything else contained in the 14th Amendment. The 14th was simply the tool the USSC chose to implement the policies they wanted to advance. The same result could have been achieved by expanding on the 9th Amendment. Certainly, the made-up "right of privacy" would have been a better fit for the 9th than the emanations and penumbras on which it now precariously sits.

The speciousness of contemporary constitutional scholarship is easily illustrated by the fact that prevailing constitutional thinking uniformly ignores - and in effect denies the existence of - the first five words of the First Amendment, to wit, "Congress shall make no law..." This Amendment is now understood to prohibit the City Council of Keokuk, Iowa from closing down a nuisance titty-bar because the exotic dancers are exercising their right of free speech. What absolute nonsense. The Court's abuse of the 14th could obviously be the subject of volumes of criticism, but you don't have to go very far to find similar absurdities. "Affirmative Action" comes immediately to mind.

As for lawyers being required for a Constitutional Convention, again, the lawyer in the class (Andrew) weighs in with a predictable sarcastic remark.

Although we have become indoctrinated to think that lawyers are necessary to make public policy, when you think about it, the opposite is clearly the case. Indeed, being a lawyer (and nothing else) should be a disqualification for Congress. Congress, as the developer of public policy, should be made up of businessmen, farmers, investors, workers, engineers - in short, people who ACTUALLY DO THINGS and are affected by the policies. Lawyers do nothing, produce nothing, and should have no say in the development of the policies themselves.

It is appropriate to have lawyers on staff in Congress to write the legislation that implements the policies, because that is what lawyers are trained to do, and frankly, dilettantes like Engineers and farmers would muck it up. But lawyers should have no role in developing public policy for anything other than purely legal matters. And the same would be true for a Constitutional Convention. The delegates themselves should be citizens who actually live and work and produce something in the society, and the documents can be drafted by lawyers, who are brought in to articulate the policies in such a way that they are enforceable and unambiguous.

[Andrew D]

What we have here can be summed up quite simply: In dgs49's view of constitutional law, a result that accords with his public-policy preferences is constitutional, and a result that does not accord with his public-policy preferences is unconstitutional.

This posting goes into matters of constitutional law in a bit -- not much, really, considering the length of a posting attempting to deal exhaustively with those matters -- of detail. But for those disinclined to get into that nitty-gritty, the shorthand version is that dgs49's constitutional "reasoning" amounts to no more than this:

(1) dgs49 likes the result = the result is constitutional;

(2) dgs49 dislikes the result = the result is unconstitutional.

That is not reasoning. It is merely bald assertion. And in my opinion, it should be given all the weight that bald assertion deserves, and no more.

A Shorter Challenge For dgs49 Because He Is
Evidently Unable To Answer The Previous Challenge

Unsurprisingly, dgs49 has declined to address the challenge previously made. So here is a shorter one:

If "the privileges or immunities of citizens of the United States," which the Fourteenth Amendment explicitly prohibits the States from "abridg[ing]," are not (or do not include) the rights recognized in the Bill of Rights, then what are they?

No irrelevant wanderings, no blathering about results which you think unconstitutional simply because they do not accord with your policy preferences, just, for once, answer the question: What are the "privileges or immunities of citizens of the United States"?

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The Previous Challenge, Which dgs49 Is Evidently Unable To Answer

The previous challenge was this:

Put up or shut up, dgs49. If you can explain why the application of the Bill of Rights to the States should be analyzed under the Due Process Clause rather than under the Privileges or Immunities Clause, please do so.

Or if you can explain why the application of the Bill of Rights to the States should be analyzed under the Privileges or Immunities Clause rather than under the Due Process Clause, please do so.

Or if you can explain why the application of the Bill of Rights to the States should be analyzed under both of those clauses, please do so.

Or if you can explain why the application of the Bill of Rights to the States should not be analyzed under either of those clauses, please do so.

And what we have got from dgs49 on the subject at issue is, as usual, nothing.

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What We Get Instead Of Any Substantive Answer

Instead, we get:

(1) a totally irrelevant statement about "advisory opinions," flying in the face of the fact that the opinion which I cited is in no way "advisory" (twice I asked dgs49 "What part of that is an advisory opinion?" but no answer to that question has been forthcoming);

(2) a tangential remark to the uncontroversial effect that Presidents, Senators, and Representatives should consider for themselves the constitutionality of proposed legislation which they are considering;

(3) the assertion of a position about the applicability of the Bill of Rights to the States which (a) contradicts more than a century of law -- the first application of a portion of the Bill of Rights to the States was made by a conservative Supreme Court when FDR was in his mid-teens and the New Deal was some forty years in the future -- and (b) was not espoused by even one Senator or Representative during the congressional debates over the Fourteenth Amendment; and

(4) a gratuitous slap at lawyers in which he (a) contends that lawyers, simply by virtue of being lawyers, should be stripped of their right as citizens to participate in the process of making public-policy decisions; (b) admits that in his own work as a lawyer, he has produced nothing of any value; and (c) expresses his desperately flailing -- and, lamentably for him but happily for the rest of us -- hope that other lawyers also produce nothing of any value.

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A Completely Irrelevant Assertion About Advisory Opinions

As you very well know, my comment about "advisory opinions" was a reference to the fact that the USSC is constrained to hear only real cases, and may not provide any binding guidance on new (or even proposed) legislation.

Which is what makes it irrelevant. In McDonald v. City of Chicago, the Supreme Court decided a "real case[]" -- whether certain municipal gun-control laws were unconstitutional. Thomas argued "[could] not agree that [the Second Amendment] is enforceable against the States through a clause that speaks only to 'process.' Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment's Privileges or Immunities Clause." The plurality, however, saw "no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding."

Had the plurality agreed with Thomas, the substantive law regarding the application of the Bill of Rights would have been changed. There is simply nothing "advisory" about the opinion on that point.

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The Uncontroversial Opinion That Congress And The President Should Consider The Constitutionality Of Legislation Which They Are Making

[Tangentially, I would say that most Congresspersons and elected executives fail totally in their obligation to uphold the Constitution when they make no independent analysis of the constitutionality of what they are doing].

I agree. Still, in our system, the Supreme Court has the final say. (See U.S. Const., Art. III; see also, e.g., Federalist No. 78.)

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Ravings (a) Contrary To What Ratifiers of the Fourteenth Amendment Said They Were Doing And (b) Expressing A View Not Adopted By So Much As One Senator Or Representative During The Congressional Debate Over The Fourteenth Amendment

As for the application of what have come to be deemed fundamental rights of the first ten Amendments to the states, there is nothing magical about the Fourteenth Amendment that compels the current state of "constitutional law," whether individual rights are said to be justified by the "due process" clause, the "priveleges and immunities" clause, or anything else contained in the 14th Amendment.

As previously mentioned, many of the people involved in crafting the Fourteenth Amendment believed that it would apply the Bill of Rights to the States, and they said so. You should consider reading what they had to say. (You might find it useful to begin with the material I cited previously.)

And when the Fourteenth Amendment was debated in Congress in 1866, "no senator or representative explicitly contradicted them on this point ...." (The Oxford Companion to the Supreme Court of the United States (2d ed. 2005) at p. 491.) It is also worth observing that "especially in the period between 1835 and 1866, rights in the Bill of Rights had often been described as 'privileges' or 'immunities'" (ibid.).

Certainly, the made-up "right of privacy" would have been a better fit for the 9th than the emanations and penumbras on which it now precariously sits.

I agree that cases such as Roe v. Wade would have been better reasoned had they rested more squarely on the Ninth Amendment. (Roe does, however, rest in part on the Ninth Amendment.) But rights recognized under the Ninth Amendment are not "made up". On the contrary, they are recognized as rights "retained by the people" despite not being included in "[t]he enumeration in the Constitution of certain rights". (U.S. Const., Amdt. IX.) The mere fact that you disagree with judicial decisions does not make those decisions exercises in anti-constitutionalism.

The speciousness of contemporary constitutional scholarship is easily illustrated by the fact that prevailing constitutional thinking uniformly ignores - and in effect denies the existence of - the first five words of the First Amendment, to wit, "Congress shall make no law..."

Prevailing constitutional thinking does not ignore the opening words of the First Amendment. In fact, it is universally recognized that before the Fourteenth Amendment, nothing in the Bill of Rights applied to the States. The Second through Eighth Amendments are not explicitly limited to the U.S. government. But it was understood, nonetheless, that those amendments also did not apply to the States, even though they did not say "Congress". And the Supreme Court unanimously so held in Barron v. Baltimore, 32 U.S. 243 (1833).

Prevailing constitutional thinking also recognizes that the Fourteenth Amendment changed that. As stated above, various framers of the Fourteenth Amendment said that the Fourteenth Amendment would apply the Bill of Rights to the States. And not even one Senator or Representative said that the Fourteenth Amendment would not apply the Bill of Rights to the States.

You just don't want the Fourteenth Amendment to apply to the States. You just wish that there were some basis for that proposition. Newsflash: "dgs49 doesn't like it" and "it's unconstitutional" are not synonymous.

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The Claims About Lawyers: They Should Be Stripped Of Their Right To Participate Equally In Decisions About Public Policy, Because They Product Nothing Of Value

Although we have become indoctrinated to think that lawyers are necessary to make public policy, when you think about it, the opposite is clearly the case. Indeed, being a lawyer (and nothing else) should be a disqualification for Congress. Congress, as the developer of public policy, should be made up of businessmen, farmers, investors, workers, engineers - in short, people who ACTUALLY DO THINGS and are affected by the policies. Lawyers do nothing, produce nothing, and should have no say in the development of the policies themselves.

Actually, it is only if one refuses to think about it that "the opposite is clearly the case." In reality, the views of lawyers are, in a partially democratic society, exactly as "necessary to make public policy" as are the views of others. The contrary conclusion is not derived from "think[ing] about it"; it is not derived from anything at all. It is nothing but yet another example of dgs49's method of pseudo-reasoning: Start with the conclusion, and refuse to address anything that might run contrary to that conclusion.

Lawyers do nothing, produce nothing ....

It may well be that dgs49's work as a lawyer "produce[d] nothing". And it may well be that in his work as a lawyer, he "d[id] nothing".

My clients, however, do not pay me to do nothing. Nor do they pay me to produce nothing.

I go to the doctor with some problem or other. The doctor assesses the situation in which I find myself. The doctor makes a recommendation about what I should do in that situation. Has the doctor "do[ne] nothing, produce[d] nothing"?

My client comes to me with some problem or other. I assess the situation in which my client finds itself. I make a recommendation about what my client should do in that situation. Have I "do[ne] nothing, produce[d] nothing"?

Isn't it clear that dgs49 simply has something against lawyers? And given that he is a lawyer, isn't it clear that he has something against himself?

Therapy seems in order. And I think that there are medications for pathological self-loathing.

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Conclusion

There is nothing in dgs49's most recent spewings in this thread that militates even slightly against what I have said before:

By now, everyone on this board has seen over and over and over what your approach to constitutional law is: "If I agree with it, it's constitutional, and if I don't, it's not."

If there is anything more than that to dgs49's constitutional "reasoning," he is keeping it to himself.

[Gob]

I'm so glad we don't have a constitution, waste of time the whole lot of it...

Oh hang about, we do.

Why do people here not make such a big thing about it as in done in the US then?

[Andrew D]

it might have something to do with this:

The Australian Constitution does not include a Bill of Rights. Some delegates to the 1898 Constitutional Convention favoured a section similar to the Bill of Rights of the United States Constitution, but the majority felt that the traditional rights and freedoms of British subjects were sufficiently guaranteed by the Parliamentary system and independent judiciary which the Constitution would create. As a result, the Australian Constitution has often been criticised for its scant protection of rights and freedoms.

We in the US are not comfortable with "scant protection of rights and freedoms." And we are not comfortable with bing relegated to "traditional rights and freedoms". (Not that we find tradition unimportant; we are just not willing to make tradition a defining characteristic of our liberties.) We (well, at least most of us) want more rights and freedoms than are "traditional" -- like the tradition that the husband and wife who engage in oral sex are subject to bodily mutilation -- so we have lots of heated controversies about rights and freedoms.

Maybe Australians don't have heated controversies about rights and freedoms which are (or are claimed to be) guaranteed by their Constitution, because their Constitution doesn't guarantee much by way of rights and freedoms in the first place.

[oldr_n_wsr]

Bishop ended up winning by some 500 votes. Altschuler conceeded this past friday. It was the absentee ballots that put Bishop over the top as Altschuler was winning by 300+ votes before they started counting the absentee ballots.

[Gob]

Maybe Australians don't have heated controversies about rights and freedoms which are (or are claimed to be) guaranteed by their Constitution, because their Constitution doesn't guarantee much by way of rights and freedoms in the first place.

Or maybe we don't feel as threatened by our fellow Aussies, (esp. those we vote into government,) as Americans do?

[oldr_n_wsr]

Maybe Australians don't have heated controversies about rights and freedoms which are (or are claimed to be) guaranteed by their Constitution, because their Constitution doesn't guarantee much by way of rights and freedoms in the first place.

Or maybe we don't feel as threatened by our fellow Aussies, (esp. those we vote into government,) as Americans do?

But it's always nice to have the "protection" from them in writing though.

[Sue U]

Maybe Australians don't have heated controversies about rights and freedoms which are (or are claimed to be) guaranteed by their Constitution, because their Constitution doesn't guarantee much by way of rights and freedoms in the first place.

Or maybe we don't feel as threatened by our fellow Aussies, (esp. those we vote into government,) as Americans do?

I think that's a valid point, especially in light of recent election campaigns. Much of what passes for political discourse here these days seems to be simply whipping up irrational fear of what the government will "do to you": Death panels! FEMA camps! Sociamalism! Sharia law! Take away your french freedom fries! Make you gay-marry a terrorist anchor baby!

A firghtened and paranoid electorate will see threats everywhere. That's not to say there are not threats, but they generally seem to arise as a result of the fear and paranoia of the electorate.

[Scooter]

But it's always nice to have the "protection" from them in writing though.

They may have believed that enumerating a list of rights in a constitutional document might have the effect of obliterating other rights that had developed through common law and were not so enumerated. That was one of the major objections to including a Bill of Rights in the U.S. Constitution, that someday, some people would look at that list of enumerated rights and claim that those were the only rights that people had for which they could seek redress through the courts. And that prediction has certainly come true, with strict constructionists claiming that rights don't enjoy the protection of law unless they are explicitly enumerated in the Constitution.

[Lord Jim]

I think that's a valid point, especially in light of recent election campaigns. Much of what passes for political discourse here these days seems to be simply whipping up irrational fear of what the government will "do to you": Death panels! FEMA camps! Sociamalism! Sharia law! Take away your french freedom fries! Make you gay-marry a terrorist anchor baby!

You forgot:

"The Republicans are going to take away Grandma's social security and throw her out in the street!"

[Andrew D]

But it's always nice to have the "protection" from them in writing though.

They may have believed that enumerating a list of rights in a constitutional document might have the effect of obliterating other rights that had developed through common law and were not so enumerated. That was one of the major objections to including a Bill of Rights in the U.S. Constitution, that someday, some people would look at that list of enumerated rights and claim that those were the only rights that people had for which they could seek redress through the courts. And that prediction has certainly come true, with strict constructionists claiming that rights don't enjoy the protection of law unless they are explicitly enumerated in the Constitution.

Indeed. Which gives the lie to those people's claim to be "strict constructionists". In fact, that method of "construing" the Bill of Rights (and other rights-protective constitutional provisions) is explicitly prohibited by the Constitution:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Being a "strict constructionist" evidently requires ignoring constitutional language which one does not like.