Faith-based hiring

Well, little fauss, I admit that your argument deserves respect. However:

Aren't you really confusing the legal fiction of "legislative intent", which all Courts must honor, with the actual subjective intent of the framers, which cannot be honored and is, in fact, irrelevant?

The constitution really ISN'T a contract, you know. As a matter of jurisprudence, it CAN'T be, because it establishes at least one of the parties to itself, the federal government. At best, at a stretch, it could be construed as a contract between "We the people..." and the states to create the federal government. The framers in themselves could, I suppose, be considered the agents of the people for this purpose, but I don't really think so because the "people in their states" had to ratify it to make it binding.

But the states themselves are but corporate creatures of the selfsame "people". Can you really make a contract with yourself? If so, WHOSE intent really matters?

No, the constitution is the "basic law" from which flow other sorts of law. It was imposed BY the people UPON the people. "Remember, it is a CONSTITUTION we are construing, not a tax code."

 

Nosborne:

While I vehemently disagree with them, I think that your views deserve respect also, with the sole exception of that "200 years of precedent" misstep, but of course, no one is perfect. You are a worthy foe.

I'm using the contract analogy primarily for illustrative purposes, but yes, if you want to know it, I do think that contract law is applicable here, primarily because just as you describe, it was an agreement between sovereign states and 12 sovereign groups of people, with the delegates to the Convention acting as agents. Trivia: which state failed to send delegates and was also, not suprisingly, the closest vote for ratification?

That it needed to be ratified by 9 of the 13 states before operational upon the whole is not, I think, death for my argument that contractual principles of construction and interpretation should apply, but if you feel otherwise, that's fine, we'll agree to disagree.

In any event, I don't think that the argument is ultimately that crucial. My question for you would be: exactly what form of interpretation do you suggest that respects that this is, as you say, a Constitution upon which we are expounding, the supreme law of our union for almost 220 years, not just a gentle suggestion?

 

Well, the constitution should be seen for what it is; legislation by the people themselves and binding on the people themselves. It just isn't a contract.

I would say that we could look at Austin. (BOY! This may be the ONLY use I ever make of my LL.M. Jurisprudence course!)

Austin believes that law is reducable to "orders from the sovereign backed by threats for failure or refusal to obey".

No, I don't accept this theory, but it does offer at least an analytical framework to answer to your question.

Ta sh'ma:

The power to legislate comes from the sovereign, in our case, the people. Now, the people in enacting the constitution and declaring that they would be bound by it, created certain public officers including a legislature, an executive, and a judiciary, and delegated to these officials the authority to act in the name of the sovereign, that is, the people.

But the people RETAIN the power to alter, replace, or abolish any part of their constitution they choose whenever they choose to do so and without needing to justify their acts to anyone in the government. In other words, the constitution may be AMENDED, either through the state process or by convention.

Now, although the people have watched the growth and development of Supreme Court jurisprudence, including both popular and unpopular decisions in substantive constitutional law, the sovereign has not seen fit to deprive the Supreme Court of its delegated authority!

Austin would say that this silence is more than mere silence; it is tacit ADOPTION or possibly RATIFICATION of the decisions of the Court, and the methods used by the Court to arrive at its decisions, by the sovereign people.

In short, the people rule by silence in this case.

The advantages of this analysis are many; its flaws reletively few (but, IMHO serious).

One advantage is that the theory presents the people as continuing to govern themselves instead of abdicating to to a collection of officials. A second advantage is that there is honest truth in it. I see no movement to replace our Supreme Court as an institution with something else. Furthermore, no one really questions the legitimacy of a Court decision; the Courts are not (yet) simply irrelevant as they would quickly become without widespread acceptance.

I'll leave the flaws to YOU to tease out!

 

Quid pro quo: you tease out my flaws, I'll tease out yours.

 

Okay, how about these to start?

-A contract is an enforceable agreement between parties. Your theory of constitutional jurisprudence lacks any sovereign to enforce its terms; it is therefore unenforceabkle.

-A contract is binding on the parties; when did you or I or our entire generation ever agree to be bound by the "constitution as contract"?

-Your technique for interpreting the constitution causes you to look at the subjective intent and meaning of the framers; this doesn't make sense in terms of your own theory. When I was Santa Fe County Attorney, I drafted many ordinances and agreements for adoption. Nevertheless, no Court would ever permit me to testify as to what I meant when I wrote the words for adoption by the commission. The framers didn't adopt the constitution! The people did. Therefore, under the contract theory, the subjective understanding of the framers is irrelevant. Under the Autinian model, however, the expressions of the framers is evidence of the understanding of the people at the time the people adopted the constitution. (You shoud LIKE this one!)

A contract can usually be terminated on an equal basis by either party. There can be no doubt that the people could amend or abolish the constitution but the congress cannot itself do anything of the sort.

That's for starters. Now it's YOUR turn!

Let me say, little fauss, that this exercise has helped me a lot to understand the work that I am doing in my program. I appreciate the opportunity.

 

Oh, one more thing

The Austinian model has another major advantage; the people continue to govern themselves according to their lights AT THE TIME. They are not bound by ancient ideas except to the extent they choose.

Now, I suggest that this more accurately reflects reality than the contract model. The people can and do amend the constitution from time to time and every now and then they compel the early departure of an agent with whom they've lost patience. Take President Nixon for instancec.

Let's see...in my lifetime the people decided that eighteen year olds should be able to vote but they also decided not to expand constitutional equal rights to women. So it is ESTABLISHED that the people in fact DO have and exercise their sovereign power to amend the constitution unilaterally, something you can't do with a contract.

Now, Roe v. Wade is, what, over thirty years old? Where is the "pro life amendment"? Answer: nowhere. The people have tacitly accepted that decision and the Supreme Court, as the agent of the people exercising their sovereignty, is shown to have acted correctly. Same for the growing restrictions on the death penalty. Same for the growing body of equal protection law.

Your contract theory supports your idea of constitutional law as you believe it OUGHT to operate; the Austinian model shows more accurately how it actually DOES function.

 

That looks like a logical non-sequitur to me.

Whether or not anyone saw fit to make a court challenge against what arguably was a violation of the establishment clause says more about their motivation than about the nature of the clause's fundamental principle.

People object when they feel threatened.

In the late 18'th century there was a lot of diversity within the larger Christian family, but the number of publicly avowed non-Chistians was much smaller and more circumspect than it is today. That's not to say that there weren't plenty of 18'th century free-thinkers, but they tended to be deists or adherents of 'natural religion' or something like that, and wouldn't have had a lot of vocal objection to symbolic government expressions essentially establishing a generic non-denominational Christianity.

But today, immigration has brought millions of adherents of non-Christian religions to our shores. First came the Jews, then every religion on earth, from Advaitists to Zoroastrians. What's more, atheism and agnosticism have become much more common and mainstream.

America simply isn't the same place that it was 200+ years ago. A generic Christianity that would have expressed most people's religiosity back then, without favoring any particular denomination or occasioning very much opposition, has become just one more religious choice today, out of many. Religious expressions that might once have drawn people together by accentuating their similarities, have started to drive them apart by highlighting their differences.

So objections began to be voiced and they eventually found their way to the Supreme Court.

I'd be interested in hearing an explanation of how a state can preferentially fund Christian clergy without thereby establishing Christianity.

I think that they stated pretty clearly that they were concerned to prevent state power from intruding into matters of individual religious conscience.

That's implicit in both the establishment clause and the free exercise clause. If the right of individuals to make religious choices freely for themselves is to be defended, then the government can't be permitted to privilege some choices over others.

 

Re: Oh, one more thing

As for contractual law, my strongest argument is that principles of contractual analysis should apply to interpretations of the meaning of the Constitution as opposed to taking a snapshot of what popular opinion is at the moment. For that matter, I don't even think the justices are doing that, I think they enact their own personal policy preferences into law and cite a sociological study or two and whatever serves their purpose to work backwards from result to rationale. This is an invalid means of determining constitutionality; it has nothing whatever tto do with what is or is not constitutional.

The people have tacitly accepted the legislation masquerading as jurisprudence in Roe??? I'm speechless. Whether there are currently 3/4 of the state legislatures and 2/3 of Congress ready to propose a pro life amendment says absolutely nothing about whether Roe was valid jurisprudence. Asa you read the decision and the complex statutory construction, you surely must be left with an uneasy feeling as well, if not in the results, certainly in the methods.

So the theory is--under the assumption that it's easier to say "sorry" than to ask permission--the Supreme Court can push forward in whatever manner it pleases, base decisions upon thin air, ignore precedent--or only cite that which itself was an invalid departure from all that had gone before it--and decide whatever the judges think best reflects their view of the way it ought to be, then cite the fact that there wasn't enough popular support to carry a constitutional amendment as evidence of the validity of the decision?

I feel as if we're talking past each other here. I think it's completely irrelevant what popular opinion is vis-a-vis constitutionality.

But again, let me be clear: we no longer need to jump through the hoops of amending the constitution anymore, all we need are two more (possibly three more) justices on the court willing to enact their personal preferences into our body of common law and overturn Roe. As that may well happen over the next few years, who needs an amendment? Earl Warren already opened the barn door!

 

But my dear little fauss,

the people COULD reverse Roe or anything else they choose. They haven't. As to Roe, which states, if any, have either called for a convention or proposed amendments?

Believe me, if a clear majority of the people WANT something badly enough, they are quite capable of compelling their representatives to accomplish it. Again, case in point: Richard Nixon

I hear a lot about how a majority of Americans want this constitutional provision or are opposed to that one. I'm not impressed. When the people really reach a consensus, the power of the awakened sovereign is terrible and wonderful to behold.

The Roe dicision HAS been tacitly accepted by the sovereign people. Of course, nothing keeps the sovereign from changing its mind in the future, right?
Besides, you haven't shown me any defect in the Austinian model!

 

I think it's time to shake hands and part ways, at least regarding this particular issue. We approach it from such different points of view, the gulf between your paradigm and mine is too wide.

I have a serious problem with any model of jurisprudence that doesn't treat a Constitution declaring itself the supreme law of the land as such. The Constitution should not be moldable at will to the opinions of the electorate. We have two branches to take care of the will of the electorate: a legislative branch to craft legislation, and an executive to veto or sign it and oversee the agencies that enforce it.

Those two branches do a fine job of crafting policy that accounts for the will of the electorate. But the judiciary, for 202 years (and probably longer, Marbury was not the first Supreme Court elocution of the concept of judicial review of legislation in our common law) has had the role of interpreting the Constitution and protecting it from the will of the people as embodied in the actions of their elected representatives or the government actors that they hire or appoint.

Our positions could not possibly be more irreconcilable: you see a legitimate goal of the federal judiciary to be the crafting of rules that become law that take into account the will of the electorate; I see the only legitimate goal of the federal judiciary to be the protection of the Constitution from the electorate.

So while you're discussing the fact that the public hasn't risen up in sufficient numbers to overwhelm the country with a supermajority of at least 67% of the national legislature and 75% of the state legislatures as proof that the Supreme Court decision in Roe is legitimate and accepted, I'm thinking to myself: "What does that have to do with the price of eggs today?" Who cares if people accept a Supreme Court decision? That doesn't make it legitimate jursiprudence--the ends do not justify the means. This is not a legislature and a statute we are discussing; it's the Supreme Court and the Constitution!

Even if 100% of the people were in favor of Roe v. Wade (the numbers are actually quite close to 55%, depending on how the question is phrased), I would say: "Who cares, this has nothing to do with legitimate Supreme Court jurisprudence; either abortion is a protected right in the Constitution or it is not, but irregardless of overwhelming public opinion, it would still not justify the Supreme Court in doing what it did, which is essentially legislating.

Again, have you read the opinion by Blackmun? It cited all manner of things that have zero to do with our Constitution and our common law: sociology, medical texts and theories, the history of abortion dating back to the bronze age, the prevalence of abortion around the world. The only real nods to the Constitution were those that even my very liberal, very pro-choice professor in Constitutional law couldn't even mention with a straiught face: the outrageous theory of "emanating penumbras" creating brand new free-standing rights, and the absurd holding in Griswold.

The two things that Roe did not utilize--and the only things that it should have--were nowhere to be found. There must be legitimate precedent supporting a decision or the clear text of the Constitution or both, but when the justices just make it up as they go along, fashion new theories in an attempt to work backwards from a desired result, that is not jurisprudence, it something else that I will not mention by name, but it smells rather bad and emanates from a barnyard animal.

Again, we are simply too far apart, we're talking past each other.

 

little fauss,

Very well. Since you are calling it a day, I will note only two things: First, sovereignty MUST come from the people alone. If you do not accept this principal, then you do not accept the very basis of the American experiment. The people govern themselves badly or well, but at the end of the day, they govern themselves.

Second...on a lighter note, take a look at how quickly the people can act when they choose! Prohibition was ratified in, what 1919?

But Repeal was ratified in 1933! Abortion might take 30 some years with no progress on the constitutional front, but BEER, well, THAT'S another STORY! D:

Do all Minnesota lawyers now wear feathered boas in jury trials? D:

Poles apart though we may be, this exercise was very useful to me and I thank you for your engagement.

 

I agree that sovereignty must come from the people, and that the rulers only rule by the consent of the governed.

This has also been very useful to me; I truly enjoy the interchange. And not that you're doing this, but just in case, don't take my passion to be hostility towards you, I truly enjoy bouncing ideas off you.

If I'm ever through NM, how about a beer or a matzah?

 

Well...I eat matzoh only at Pesach when I can't drink beer...

Other than that, SURE!