Over at the Volokh Conspiracy, supposed Constitutional scholar Michael Stokes Paulsen, from Univ. Minnesota Law School, digs up a startling and confounding Constitutional issue regarding Hillary Clinton’s appointment as Secretary of State: the “Emoluments Clause” of the Constitution (Article I, section 6) states: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time.” The SecState’s salary was increased eariler this year, while Hillary was serving her current term as Senator. This would seem to make it unconstitutional for Hillary to assume that office while her current Senatorial term is still in effect (even if she resigns from the Senate first – it says “during the time” of the term, not just while the elected official is still in office).
Hmmm. There are some further considerations, including whether anyone actually has standing to bring a complaint if the unconstitutional appointment is in fact made. And there appears to have been precedent for such appointments in the past, Emoluments Clause notwithstanding. But he does have a strong argument here. It will be interesting to see if it gets legs.
That’s not what I wanted to comment on, however. Paulsen uses his law journal article (from which his blog post is derived) to work in some snarky comments in favor of a “strict constructionist” reading of the Constitution and against the “living law” doctrine. Obviously, his general argument is that the Emoluments Clause has to be appled exactly as written (even though it was obviously intended to block elected officials from deliberately creating or improving offices for their own benefit and then having themselves appointed into them – which is clearly not what Hillary was seeking). That’s not a bad argument, and there are various ways to defend it. But Paulsen’s stand is taken on the idea of a literalist reading of every part of the Constitution, including the parts that can’t be read that way. To show how wrong it would be to do otherwise, he quotes his own example from an earlier law journal article on the same topic. (Remember: the example below has been published in two law journals by a “leading Constitutional scholar” of the strict constructionist school.) Here is Paulsen’s incisive mind at work:
if the meaning of texts “evolve” over time, then “thirty-five years of age” does not mean “thirty-five years of age” but stands instead for an evolving principle of maturity. In 1996, this would have meant that the lawful President of the United States was Strom Thurmond, not Bill Clinton.
This is why nobody takes “strict constructionists” seriously.
You can argue that changes in context, referential meaning, impact, or other aspects of terms used in the Constitution should not be taken into account in applying those same terms more than 200 years after they were written, under unrecognizably different circumstances, if you like. But you cannot bolster that argument by the asinine suggestion that that there is any difficulty in interpreting terms whose meaning has not changed.
“Firearms” and “militias” are both very different things today from what they were, and were intended to be, when the Constitution was written. So is the common appreciation of what punishments are deemed “cruel”, or the empirical facts as to which are “unusual”. Again, you can inist on ignoring those differences if you feel you have to – presumably out of some psychological hankering for a pre-Civil Rights, pre-Miranda, pre-New Deal, pre-feminist, pre-Civil War, pre-industrial America. But the meaning of “year”, and indeed of the number “35″, have not changed. It doesn’t require “strict constructionism” to apply the same meanings to numbers, and to astronomical phenomena, today as in 1887; they have the same meanings no matter what interpretational doctrine you subscribe to, because the meanings are fixed as matters of logic or as basic scientific facts. For the same reason, showing that the meanings of unchanging terms should be regarded as . . . unchanging . . . offers no support for a doctrine of unchanging interpretation as applied to terms that are highly context-dependent.
That Paulsen would seriously suggest that the obvious absurdity of an “evolution” in the meanings of the names of integers, or the physics of the Earth’s orbit of the sun, demonstrates a parallel absurdity in the idea of changes in technology, social institutions, or societal values over more than 220 years, calls his comprehension of basic language into question. It would have to be regarded as a joke, except that (a) it is no dumber than the usual “constructionist” reasoning, and (b) he published it twice in well-known law journals, and relies on the same example to make similar arguments in different cases more than 10 years appart. Apparently Paulsen is not making a joke with his argument for a static interpretation of the Constitution; he’s making an argument he believes to be serious, that simply sounds like a joke.
leanleft
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Obviously, his general argument is that the Emoluments Clause has to be appled exactly as written
How does one “apple” a clause?
*ducks*
Does raise the interesting question about what a strict constructionist thinks we should do if an amendment were hypothetically passed with an important but overlooked typo…
Turns out there are some. Here’s an article on exactly that subject.
I also recently read a whacko tax-protestor argument to the effect that the printed texts of the Sixteenth Amendment (income tax), distributed to the various state legislatures for ratification, contained significant variations and errors, such that the various states ratified several different versions of the Amendment, most of which did not correspond to what Congress had authorized. Thus, the Amendment was never truly ratified and the income tax is unconstitutional! The link above gives an interesting (and intriguingly unconvincing) explanation why that argument is not accepted (“it seems that the state legislatures intended to ratify the amendment “).
Even the so-called “strict constructionists” are pretty damned flexible when it suits them. You don’t see Scalia arguing that the Second Amendment only guarantees the right of the citizenry to own flintlock rifles and muskets, for example.
The best indictment of originalism/strict constructionism that I’ve seen is from publius’ old blog (I need to find it), where he details how Brown vs. Board of Education is a bad ruling under originalist understanding. If your constitutional jurisprudence can’t support Brown, I’d like to suggest that such jurisprudence is fundamentally flawed.
Both the 2nd Amendment and Brown examples were raised in the comments at Volokh, in fact. Yes – constitutional principle turns out to be surprisingly flexible, if you’re Scalia or Alito.
I’m a little hazy on what constitutes strict constructionist, or even moderate constructionist, whatever. But, can’t it be argued that the “definition”of a firearm has not actually changed? How rigid is the term “small arm,” does it just mean handheld? Anyway, the point is that anything that was considered a firearm then, would still be so today. Words like “cruel” and “unusual” have an inherent temporal, social-normative element to them, by contrast.
Well, the second amendment doesn’t actually say anything at all about firearms, just “arms.” But your point is well made, in that there were cases where the framers were, I believe, intentionally vague.
anything that was considered a firearm then, would still be so today.
That’s certainly true. And most gun control proponents have often said they would be perfectly willing to let responsible gun owners carry muzzle-loading black powder weapons with 3-foot-long barrels. (I would like to add the proviso that they must prove themselves willing and capable to turn out with that weapon in their city center at any time, within 60 seconds of notification, but others, more radical than I, don’t seem to care about the “well-regulated militia” clause.)
What is not certain is that everything we today consider a firearm would be recognized by the Founders as falling within the scope of their intentions in the 1780s.
That was a time when “infernal machines” – gunpowder explosives triggered remotely, such as mines or booby traps – were condemned as a dishonorable form of warfare. The standard weapon – a smoothbore musket – carried a couple of hundred yards, was fired at a rate of a few rounds per minute, and could barely be aimed (British troops fired in volley simply to create a dense mass of lead – not aiming at specific targets).
What would the Framers say to the idea that every citizen, with virtually no training and no connection to an organized militia or defense force, should be allowed to possess weapons capable of delivering aimed fire to within a few inches of the chosen target over distances close to half a mile for standard infantry weapons, and up to a mile for precision weapons, at a rate of several rounds per second – not to speak of fully automatic weapons, or guns so small they can be carried secretly in a pocket or on the belt, but can deliver more firepower in a few seconds than an entire Revolutionary War period infantry platoon?
What could their response possibly be to the suggestion that their constitutional provision for an armed militia would be taken to mean that prohibiting 30-round magazines that can be emptied in just a few seconds is “fascism”?
How would they respond to the suggestion that their “deliberately vague” reference to “arms” for a “well-regulated militia” would be taken by some of their admirers to authorize belt-fed machine guns, hand grenades, and Claymore mines – exactly the kind of weapons that actual militaries of their day were discouraged from using as being immoral – for private citizens with no military connection or oversight?
What would they say to the idea that, 200 years after writing their vague provision for trained militias, there would be over 200 million weapons in the US, most far deadlier than anything they themselves had ever imagined and the large majority in the hands of civilians with not even the slimmest connection to any organized defense force, that those guns would be used in 8-10,000 murders, 20-30,000 other deaths, and 75-100,000 serious injuries annually (and in some years far more), that guns would be the most-common and most-deadly method of both murder and suicide, vastly outnumbering all other instruments so used, that they would kill 500 – 1,000 children and teens per year by accident, and that gun owners would agitate en masse against any and every conceivable or proposed policy to restrict the availability of guns, require qualifications for ownership as to need and ability, secure the weapons away from children and criminals, restrict the types or designs of weapons to limit their destructive force, or to design weapons with increased inherent safety features, while citing the militia amendment as an absolute prohibition on any such policies?
Whatever the meaning of the 2nd Amendment should best be understood to be, the free-fire free-for-all that today’s gun nuts keep demanding can’t possibly be what the Framers had in mind – it can’t possibly be anything they ever even imagined.
I’m gonna prove your point for you, but first off, it says “arms” not flintlocks. Knives, flintlocks, or any type of personal arm was and is covered. Nowadays that includes handguns, butterfly knives and brass knuckles too. Unless you can convince me that my pocket knife is a crew served weapon or something.
What you should have said was the exception created wholly out of thin air by the Supremes to allow police to run sobriety checkpoints. Let’s face it, that just does not jive with the fourth. It’s no different than going door-to-door searching for rolling papers.
Contrast recognizing a pre-existing but not enumerated right to medical privacy. The latter does not create powers out of thin air for the state. 9th and tenth amendment, baby.
…and here I am typing out words at 30 wpm without even reading the rest of the comments! What would those founders say about that? They’ve only experienced hot type, that was hand-set, and cranked out by a manually operated press on real (really expensive) paper.
What would they say about slander sent over satellites in seconds from Syria to San Francisco? Mass mudraking to millions of metropolitan middle-class morons via MTV?
SM:
If you’re suggesting that the fact that the 1st Amendment applies to electronic communications is a counterexample to my questioning whether the 2nd Amendment applies to modern arms, you’ll need a better example.
First, it’s not clear that the actual function of electronic communications is any different from that of hand-printed ones (and note that hand presses do not use hot type – even that was a much later invention). To the extent that it is – because they reach a wider audience, more quickly, and are (supposedly) unavoidable (because they permeate the air and can be accessed by anyone with a radio or TV receiver) – it is precisely those facts that have been cited in justification for restrictions on freedom of speech in broadcasting, such as bans on content (nudity, vulgarity) that is not legally obscene. Also, broadcast spectrum represents a public commons – a valuable commodity that is freely available but limited in quantity – in a way that printing paper does not; this fact is the basis for restrictions on concentrated ownership of broadcast outlets in individual markets, and of the soon-to-be-resurrected Fairness Doctrine. The local monopolies enjoyed by cable TV distributors are the justification for the requirement that they provide public access, which newspapers are not required to do. So First Amendment guarantees of freedom of the press are regulated in light of the specifics of new technology in a way that old technologies were not.
As to libel, note that it was a recognized tort at the time of the Revolution, and still is. The greater impact of mass media in spreading a libel would presumably be a factor in assessing damages in a lawsuit. I can’t see any reason why the Framers would disagree.
Hot type is a lead alloy, and even Gutenberg used it, although he probably did not use copper or brass letter molds to cast the hot type.
I remember editorials in the WaPo opposing even modest requirements to use a percentage of recycled paper, soy ink, or limiting to a reasonable amount, the number of newspaper vending machine that take up the public sidewalk space. All of those cases were cast in the light of protection on 1st amendment grounds.
Likewise, none of your FCC examples regulate the actual content of news broadcast, even in the most reasonable way.
Murder was also recognized as a crime at the time of the Revolution, and still is, but that didn’t stop people from having the arms that a solder carried, even if they could have been misused.
Reinterpreting the Constitution to say what you want it to sets a very bad and dangerous precedent.
Murder was also recognized as a crime at the time of the Revolution, and still is, but that didn’t stop people from having the arms that a solder carried, even if they could have been misused.
If by “people,” you mean “white male landowners,” then sure.