Wednesday, November 18, 2009

A Challenge to ALL the "Culture Warriors" in the Blogosphere

In the spirit of practicing what I preach I decided to bring the discussion that broke out in the comments section of Jon Rowe's excellent post on "Testing" the Christian Nation thesis to the main page. I am not sure where it originated, but a great discussion about the merits of original intent as a method of interpreting the Constitution came up. As I went to the section on the Constitutional Convention to read some old posts I came across one by Tom Van Dyke from September 6th on Madison, Jefferson, and their views on how to interpret the Constitution. The following quotes are reproduced from his post word for word:

“The true theory of our Constitution is surely the wisest and best, that the States are independent as to everything within themselves, and united as to everything respecting foreign affairs...”

“On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”


"It is to be the assent and ratification of the several States, derived from the supreme authority in each State -- the authority of the people themselves. The act, therefore, establishing the Constitution will not be a national but a federal act."

"As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses."


So here is my challenge to all the contributers, commenters, and "cultural warriors" alike:

History means nothing if it does not relate to our current lives and the issues of our day. It is about dead men and events that cannot be changed. The value of studying it is in realizing that the issues we debate today have been debated before. Sometimes it is the same product with a different brand name but nonetheless the same or very similar issue. With that said, how about some posts and comments about how the founders would have, and did, debate the very same issues that we moderns do today?

I think the Culture Wars debate that we see on Ed Brayton's blog should come over to here. But I think the modern tendency to spout off our modern opinions should be backed up with some historical facts that I see lacking in this national debate we call the "Culture Wars". That is the problem with the "New Media" of the "Information Age": Everyone has a strong opinion but few can back it up with facts. I think this is what Tom was trying to say in his most recent post.

No disrespect to Ed, who I consider a friend because he took some time to educate me on many of these issues when others wanted to mock me to suit their biased agenda, but I think the frame of discussion we have established on this blog is more proper, civil, and productive toward solving some of problems related to these issues because we do put it into a historical context thanks to another man I now consider a friend: Jon Rowe. If I am right then our discussions at American Creation need start reaching a wider audience. That could get messy but I think we can handle it.

So to start it off I challenge the crowd here, and at Dispatches(Jon can you email this to Ed), that says that "original intent" does not matter to take on Jefferson and Madison. Maybe Barton is right about more than most want to give him credit for? I think we need to talk about Federalism(like Madison and Jefferson did above) and the intent of possibly "most" Americans at that time when we ask if this was intended or purposed to be a Christian Nation. I would also argue that we eventually need to go further back than the Constitution and study where the ideas for the Declaration came from and if they were "Christian" or not?

These are the two topics in this discussion that most strict secularists seem to want to ignore. Most of the biased Historians that write on this topic certainly ignore it. The floor is open to argue with Jefferson and Madison for all who care to take them on; Lemon Test or not.

Fair warning to any in the "Dispatches" crowd that wants to step up to the plate:

I am setting you up. I would hope that you come up to bat with a better thesis than the "liars" motif.

Fair Warning to Barton:

I am setting you up. I think you may find that the original intent had nothing to with your modern political agenda. In fact, I am out to prove that it was much more libertarian in nature than you let on and is being undermined by your modern political agenda.

My Sincere thanks to Tom Van Dyke, Jon Rowe, and Ed Brayton:

My internet friends that have taught me more about this topic I am about to begin to pursue at a graduate level than anyone else. You guys changed my outlook on life more than you will ever know with our discussions.


Daniel said...

Those quotations are interested for their difference. Madison seems to take a textualist approach; what matters is what the words say, not what anyone intended. He does not consider the effect of changing meanings of words, so leaves some interpretive questions open. Jefferson rejects the textualist approach and looks more to general principles. This leaves open the question whether we should apply those principles as they were understood in the 18th century or whether we should apply the same principles but as we understand them in the 20th century. Madison seems to be true to the Enlightenment notion of sweeping away the existing accumulated laws of tradition and making new laws only by legislation. From this short quote it is hard to tell, but Jefferson seems to be open to a common law-type process of Constitutional interpretation, similar to the process we have, of looking to text, and history, and principle, then figuring something out.

King of Ireland said...

How can one look into the spirit of something without considering intent. In fact, I think intent could be a synonym for spirit in this context. I just took the quotes from Tom's post and have not looked at them in full context. But I think Jefferson was talking about intent and that if the time in which it was written.

I think when Madison says the "sense" the the ratifiers attached to it he is kind of saying how they saw the meaning. Maybe I am understanding intent wrong in the legal context. But this would seem to point to some sort of attempt of the ratifiers to figure out what the framers were trying to say.

Tom Van Dyke said...

But this would seem to point to some sort of attempt of the ratifiers to figure out what the framers were trying to say.

I think that's somewhat correct. I think it's helpful to look at a law [or article or amendment] as it was put into common practice, to look for its common understanding. In other words, one step back from mindreading the ratifiers trying to mindread the Framers: Using common practice trying to read the ratifiers, and, most often, the actual words in the actual text. This method gives us a larger picture of the plain meaning of terms at the time of ratification.

The Madison quote comes from a Madison letter still delaying publishing his notes on the Framers' debates that we use today. (And according to Madison, we really shouldn't, except as an academic exercise.)

As for Jefferson, I'd say that he sometimes gets philosophically expansive, stuff like the tree of liberty needs to be watered with the blood of tyrants, or that the Constitution should be in effect for only periods of a generation [19 years to him].

I think a lot of context is needed in quoting Jefferson on the Constitution. I felt comfortable quoting him more as background for the general argument that the "general welfare" clause doesn't, well, in his words,

"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction."

King of Ireland said...

I think most of them would roll over in their graves if they saw the current size nd power of our government today.

Tom Van Dyke said...

A libertarian view of "originalism," by Randy Barnett, with plenty of Founder quotes:

[And contrary to popular belief, sometimes Scalia and Thomas disagree!]

King of Ireland said...

Ed told me to read his book about a year ago have not had time. I will check the links. thanks

Daniel said...


"Spirit" is poetry. "Intent" is prose.

Of course, intent has many meanings. The "spirit" of the Convention can capture the intent of the Constitution as a whole, but says little about the meaning of any particular clause or phrase. And I suspect that this was Jefferson's meaning, that we should look to general Enlightenment (and Jeffersonian) principles in determining meaning, ahead of the specifics of the (often Hamiltonian) text.

Madison makes 'sense' secondary, at best. The intent of the framers is merely a curiosity. Only if we must look somewhere other than the text are we directed to the 'sense' of the ratifiers. But how do we sort of the 'sense' of many people at 13 separate Conventions? Review of 13 sets of minutes and hundreds of diaries and letters is impractical. So we are left with the choice of either grabbing a few convenient quotes or consulting the accepted meaning of the text. This would be consistent with the Enlightenment tradition that rejected common law and wanted to re-make law, all of which would be made by legislation.

Let me agree with the rec of Barnett. I don't buy all of his conclusions, but the analysis is very good and helpful for exploring these issues.

Daniel said...

I'm not sure Jefferson didn't mean what he said, at the moment. That tree of liberty quote address a rebellion that had his sympathies, and he didn't so much mind shedding a bit of the blood of some tyrannical bankers. The Constitution (at least in application) turned out to be much more Hamiltonian than Jefferson preferred. A little less stability in government would have made a mercantilist republic more difficult, so Jefferson may have imagined that frequent re-writes would have been good for the yeoman farmers.

Jonathan Rowe said...


Many thanks!

Tom Van Dyke said...

Daniel, you've said it twice now, "This would be consistent with the Enlightenment tradition that rejected common law and wanted to re-make law,"

It's true that Jefferson had it in for Blackstone, but his view did not carry the day.

Therefore, to interpret the Constitution on "Jeffersonian" principles is fraught with danger.

As for your note that mindreading the ratifiers is difficult, I agree. But where Brayton an others jump off the cliff is reading "principles" into the text that have nothing in common with anything found in the ratification debates or in the public dialogue of the times.

In other words, we may have trouble figuring out what they said or thought back then, but it's not hard to tell what they didn't say.

Ed Brayton said...

Thanks KOI. I think the quotes from Jefferson and Madison are interesting. One thing that needs to be made clear is that there are several distinct forms of originalism and you seem to conflate them a bit. There is original intent originalism, which Madison pretty explicitly rejects in the quote you offered. There is original public meaning originalism, which Madison seems to endorse. And there is original expected application originalism, which is mostly rejected even by advocates of originalism (though they almost always use rhetoric which flows from that premise without recognizing the contradiction).

Then there is the kind of originalism advocated by people like me, Jack Balkin and Randy Barnett (though I have seen him claim not to advocate such a position, he clearly does in his writings). Barnett calls it liberal originalism, but that's probably not a good term because it will be confused with liberal political views. I would perhaps prefer to call it original principle originalism, the idea that we must apply the broad principles elucidated in the constitution (which is, of course, written in very broad language) and the DOI to new situations as they arise. That means often times applying those principles in ways that the original authors not only did not foresee but would have explicitly rejected (the equal protection clause of the 14th amendment being a textbook example).

I think it's also important to recognize that on nearly all of the key "culture war" issues regarding religion and government, there was no single original intent or understanding among the founding fathers. Jefferson and Madison's interpretation of the first amendment differed enormously from that of Washington and Adams, for example. So reference to the views of those who framed the documents can really only get us so far. Whenever you see someone say "the founders believed X" you're probably dealing with someone who has only read one side of the issue. The FFs were all over the map on nearly every issue.

It also should be noted that the FFs were as hypocritical and contradictory as politicians are today. Even a text as clear as the free speech and free press clauses of the First Amendment were almost immediately contradicted with the passage of the Sedition Act, nearly before the ink was dry, and newspaper editors were thrown in jail for criticizing the government. That's why we often have to look at principles rather than the inconsistent application of those principles by flawed men.

And by the way, I am not offended at all by your entirely accurate statement that the conversation here is much more civil than at my blog. Unfortunately, I have little time to police the comment threads at my blog these days and I know they can get pretty ugly. I would prefer to have a more civil discussion of these issues than many of my readers, which is a rather awkward situation to be in.

Daniel said...

Yes, I said it twice and I would have said it again if you hadn't called me on it. My memory tells me it was much broader than Jefferson. A quick search finds a letter from Madison to Washington that says that the common law of the States remains in place. At least in this letter, Madison supports common law of the States. But Vile, Pederson, and Williams, in James Madison, Philosopher, Founder, and Statesman, at 136, say Madison largely rejected the notion of a federal common law when arguing against the Sedition Act (although I am not clear whether he was limiting that argument to criminal common law).

I do think it is fair to call it an Enlightenment principle even if it was primarily Jeffersonian, but I did imply that it was broader. I will try not to repeat that until I have checked some sources.

Daniel said...

"Original principle originalism" while redundant seems like a good descriptor. Self-explanatory is useful.

I think the Jefferson quote, at least without context, supports this position. The problem I see with the approach is that conflicting principles play a part in any major exercise in drafting. To focus on one favorite principle is to pretend the document was not a product of negotiation and compromise.

The supporters of the Sedition Act did not see an inconsistency. They were simply recognizing that the liberty principle is not unlimited and they argued that its limits could be defined by common law. And I think we can all agree that, at some point, liberty sometimes must be limited by the principles of stability and security. Most of us agree that the Sedition Act drew the limitation in the wrong place, but simply citing the liberty principle does not help a great deal in defining its limits.

Tom Van Dyke said...

Well, Jefferson wasn't involved in drafting the constitution, so "Jeffersonian" principles don't tell us much. I dunno if the Enlightenment meant throwing out the 1000 year history of common law [and its antecedents going back to Rome] and starting the law over from scratch. Mebbe radicals like Voltaire did [and moderns like Rawls do], but the American Revolution just wanted their rights as Englishmen back, and the ratification of the Constitution left the state laws in place.

Now whether there's a federal common law is a bit of a different discussion. Did the federal govt start from scratch? Perhaps. But as with all law, you also look to custom and practice after passage. You don't come up with a new interpretation 100 or 200 years later, and this of course is the fatal flaw in Mr. Brayton's method.

Daniel said...

I got out some old notes and it looks to me like the position I am trying to attribute to the Enlightenment was pure Jefferson, at least in this country. Yeah, it probably would have had French supporters if France had a common law tradition, but I don't find advocacy in the U.S. beyond Jefferson. The debate about federal common law seems to have less to do with republican ideals than with the federal government being one of explicit and limited powers. Questions of federalism also influence that ongoing debate. In any event, I appreciate you calling me on that error.

Tom Van Dyke said...

Daniel, you were on the right track. Jefferson had an ideological war going on with the Englishman

as the figurehead for common law being applied in the United States.

But Jefferson lost that one. [We do need to keep track of the battles Jefferson---and Madison, too---lost in the Founding. Where the rubber met the road.]

Jonathan Rowe said...

Did Jefferson really lose that one?

There were, as I understand, states who held "Christianity" part of the common law post the American Founding. But that idea didn't last long.

Even Justice Scalia (your favorite) rejects the idea that the common law was based on some "brooding omnipresence in the sky." There's no doubt that the judges, when they made up the common law rules while deciding cases and controversies, pretended there was such a "brooding omnipresence" -- the controversy is whether such was "Nature" "Christianity" or a combination of both. Jefferson clearly thought the Omnipresence was "Nature" alone.

Tom Van Dyke said...

Well, Scalia notes that the rejection of natural law in jurisprudence didn't occur until 1938 in Erie.

I would say that Scalia's position is more of a fallback position, that questions of morality still need to be decided, and he prefers democratic consensus over 5 Supreme Court justices.

Ed Brayton said...


This is an absolutely sincere question. From an originalist perspective (and form of originalism other than the one that I advocate), was Loving v Virginia rightly decided?

Jonathan Rowe said...


This might be a little complicated because the same "brooding omnipresence" that drove the common law, some (like Justice Thomas and others) believe should drive Supreme Court jurisprudence.

This is NOT a fall back position of Scalia's (as would be, for instance his position on incorporation).

He says he personally (presumably as a good Roman Catholic) believes in natural law; but it has no place in Supreme Court jurisprudence.

It gets complicated because Scalia answered that question in the context of SC jurisprudence and natural law. I don't think he's ever answered that q in the context of state common law.

State common law was judge made law in England. This is one argument living constitutionalists use to defend their theory: Our system was built on judges making up the law. Though, as noted, those judges thought they were following a "brooding omnipresence."

Tom Van Dyke said...

Come in, said the spider.

No thanks, Ed. I don't buy your conflation of two different marriage issues.

As for Plessy, etc., a "textualist" reading of the Fourteenth Amendment would say that if they meant "separate but equal" instead of "equal," that's what they should have written.

And I did pay you the courtesy of reading up on your positions on these things as evidenced by my previous comment, which I believe represented your position fairly, and your comment right after mine confirmed it.

I think by the time we get done claiming "principles," we've obliterated history and fact, and substituted abstractions for reality and reasonableness. This will not do.

Tom Van Dyke said...

Jon, the common law was built brick by brick over centuries. A judge [or 5 Supreme Court justices] don't come in and tear it down and substitute their own edifice. [Well, actually they do in "living constitutionalism," but that's the problem.]

I would not mistake Scalia's pragmatism---and in my view democratic fairness---for his absolute views.

"...surely there is a right and wrong moral answer. And I believe there is, but the only thing is, I'm not sure what that right answer is. Or at least, I am for myself, but I'm not sure it's the same as what you think."

This is to me quite reasonable and nontyrannical, that he doesn't believe it's his judicial prerogative to substitute his judgment for the people's.

As Scalia points out, you might like what 5 justices rule today, but you may not like what a different 5 justices rule tomorrow.

Ed Brayton said...

Tom Van Dyke wrote:

No thanks, Ed. I don't buy your conflation of two different marriage issues.

I haven't mentioned any other marriage issue. I'm asking solely about Loving v Virginia and whether it was correct or incorrect from the perspective of conservative originalism (for lack of a more concise phrase). Surely it's a legitimate question to ask how a given interpretive framework would be applied to specific cases.

Tom Van Dyke said...

I'm asking solely about Loving v Virginia and whether it was correct or incorrect from the perspective of conservative originalism (for lack of a more concise phrase).

Ed, if you have something to say, please say it. I already wrote plenty for you to respond to substantively, none of which you responded to as yet. Let's play it straight. I already answered when I wrote:

As for Plessy, etc., a "textualist" reading of the Fourteenth Amendment would say that if they meant "separate but equal" instead of "equal," that's what they should have written."

A ban on interracial marriage would have meant that marriages [black-black, white-white] would have been "separate but equal" based on race.

I'm willing [and eager] to discuss this with you, as I've read your writings on this subject, which are worthy. But only if we proceed in good faith, something I'm just not feeling yet. We'd be great foils, you and I, Ed, one for the ages. GBS and Chesterton. How cool.

Ed Brayton said...


I'm going to move this conversation over to my blog because I think my readers will be quite interested in it. You can answer there or you can answer here and we can carry on a two-blog conversation if you'd like (I know that some of my readers have been quite rude to you in the past, and you to them as well, so if you choose to answer me on American Creation that would be perfectly understandable). It will be posted in the morning.

DuWayne Brayton said...

I already answered when I wrote...

No you didn't Tom. Ed's question was a straightforward, yes/no question and a very reasonable one. You seem to be trying to explain the answer without actually giving an answer and your explanation doesn't provide us with a yes or no. Let's make the question even clearer...

Based on your personal view of originalism, was Loving v. Virginia wrongly decided - yes, or no?

King of Ireland said...


I was travelling over the weekend. I saw your comment but did not have time to respond by Blackberry. I was just trying to put a question out there. I am not sure what I believe on this issue and am still being educated on it.

I think you and Tom should continue this and I would like to just listen and observe. I meant what I said. You are a good dude. You should visit here more often.

King of Ireland said...


I read the post at Ed's blog and I think he framed the discussion fairly. I think you should take him on. I wrote this post to get a discussion going. I think two highly educated people that take two different positions like you guys do would frame this discussion well and provide those of us that want to learn an opportunity to do so.

I would also add that I think Jon is right about this blog needing a broader audience. I think Ed has provided that chance. I know those guys over there can get nasty but that is really only when the whole Barton thing comes up. The crowd that comments on the Constitution stuff is more intellectual and tame.

It is up to you but I know Ed and will keep it clean if he respects you. Which I know he does. Most of the vitrole is thrown toward hay seed racist Christians.

Tom Van Dyke said...

Jon---I'll address this to Ed directly:

Ed, I'm afraid that my suspicion you might not be proceeding in good faith was confirmed by your reply to Jon over at your blog:

"I am attempting to demonstrate essentially the same point here using TVD as my foil, that those who argue in favor of conservative originalism don't really mean it - they only mean it when it leads to results they like. When it leads to results that are clearly unjust they jettison their mode of interpretation and pick and choose among a number of other possibilities. And this is precisely, of course, what they accuse living constitutionalists of doing. Originalism is a convenient stick with which to beat liberal judges but when it leads to heinous results, its advocates immediately engage in special pleading to reach the result they want - just like those liberal judges upon whom they use that stick."

Whatever, Ed. That is not good faith discussion.

And for the record, your readers were rude to me, and as best as humanly possible, I bore their insults and obscenities with politeness and civility.