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It’s Time For Everyone’s Favorite End of Term Activity, Supreme Court Mad Libs

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swiss-army-knife

How many bad analogies and metaphors and cliches can be crammed into a blog post? Can we learn something from bad arguments about the Supreme Court? Let’s find out!

I wrote in a book review once that the basic distinction between Right and Left when it comes to the Constitution is “rules vs. tools”: Conservatives see the Constitution as a set of rules that must be followed, while liberals see it as a box of tools that can be used to put their policies into effect. And if you have to use a chisel as a screwdriver or bang in nails with a pair of pliers, it’s no problem as long as the thing gets built.

It’s amazing at this late date that people can write such utter crap with a straight face. Where is the clear “rule” mandating that “the equal sovereign dignitude of the states trumps the powers explicitly granted to Congress under the 15th Amendment“? Where does it say that “states must use uniform vote counting methods if not doing so might result in the election of a Democratic president in 2000 but not in any other case?” When was the text of the Eleventh Amendment changed from “another State” to “any State?” Where exactly is the “anti-commandeering” clause of the Constitution? I could go on like this but you get the idea.

This principle turns the 14th Amendment into a Swiss Army knife and the Commerce Clause into a roll of duct tape.

So, it turns out that re-stating the metaphor doesn’t make it any more coherent.

They devise new uses for dusty old buggy whips like the 13th Amendment,

What’s funny about this is that Schwarz almost certainly considers himself an “originalist.” And yet the new scholarship about the 13th Amendment is based on historical analysis. There is good evidence that the contemporary limitation of slavery to only chattel slavery does not reflect the understanding of many at the time of the founding, and there is also good evidence that 13th Amendment was read much more broadly in 1865 than it is 2015. I’m not an originialist or a believer in grand constitutional theory, so I don’t believe that these are knock-down arguments. But the fact that conservative originalists not only have no interest in this scholarship but feel free to contemptuously dismiss it should tell you something.

and even the forlorn Third Amendment was pulled out of the back of a drawer somewhere to be cited in Griswold v. Connecticut (and is now being invoked by the Left and the Right to oppose NSA surveillance).

This is the slightly more sophisticated sounding SCORCHING HOT TAKE on Griswold, used in lieu of the more famous one (“durr, he said ‘penumbras and emanations,’ durr.”) And, yet, if you read the citation of the 3rd Amendment in context in makes perfect sense:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The Fourth and Fifth Amendments were described in Boyd v. United States as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” We recently referred to the Fourth Amendment as creating a “right to privacy, no less important than any other right carefully an particularly reserved to the people.”

Douglas’s perfectly straightforward point is that many of the individual protections in the Bill of Rights are based on the underlying principle that the state cannot be omnipresent in private homes and in individual lives. (It’s true that he does not defend this point extensively here, but this is because he already did so four years before, and cites this opinion at the end of the “penumbras” sentence. Both the Douglas and Harlan opinions in Griswold should be read as summaries of arguments they made in much more extensive detail in Poe v. Ullman.) This principle was obviously highly relevant to this case, concerning the constitutionality of a statute banning the private use of contraception. And the 3rd Amendment — forbidding the state from using private residences to house military personnel except with legislative authorization during wartime — is plainly relevant to this structural analysis. It wouldn’t make sense to say that the 3rd Amendment standing alone would make the Connecticut’s uncommonly silly law unconstitutional, but Douglas doesn’t say that it does. One can agree or disagree with the conclusions Douglas reaches, but this kind of structuralist argument is a widely-used form of constitutional interpretation, and only hacks think it can be dismissed by repeating a 3-word phrase or mischaracterizing its use of the 3rd Amendment.

And they think nothing of turning the strictest rules on their heads, so that “shall not discriminate on account of race” means “must discriminate on account of race”

I’m not sure what copy of the Constitution Schwarz is using; mine does not contain the former phrase. It does most assuredly guarantee the equal protection of the laws, but I see nothing in this phrase that specifically proscribes every affirmative action program. (Oh, and what I said about originalism.)

and “freedom of speech” requires restricting speech. What, you thought these provisions actually mean what they explicitly say?

Leaving aside all the question-begging, he has a point — I don’t recall the “bong hits 4 Jesus” or “but Islamic! 9/11!” exceptions to the First Amendment either. I wish conservatives would stop trying to turn the First Amendment from a cinder block into one of those cabinets of tools they sell at the Home Depot.

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  • Malaclypse

    Conservatives see the Constitution as a set of rules that must be followed, while liberals see it as a box of tools that can be used to put their policies into effect.

    Someone needs to take that cartoon of Batman slapping Robin, photoshop in Robin saying the above quote, while Batman slaps him while saying “Bush v. Gore!”

  • Snarki, child of Loki

    Funny, I don’t remember that the “State Secrets Privilege” is in the Constitution. Or Federal Law for that matter.

    • catclub

      Speaking of secrets. What is that small hook tool used for?
      I recognize the leather punch/awl, and the corkscrew.

      • Lee Rudolph

        Perhaps it’s the famous “tool for removing stones from horses’ hooves”?

      • Redwood Rhiadra

        If you’ve got a bundle of stuff (usually newspapers) tied up with string or twine, you hook it through the twine to carry it more easily.

        http://www.quora.com/What-is-this-hook-thing-on-my-Swiss-Army-knife

        • ‘Bout damn time I learned something from this blog! Thx!

          • Avattoir

            From a woman, evidently. Say … how come no woman has ever been POTUS? TOO PREACHY, I say: telling MEN about how to use Swiss Army knives, PSHAW! It takes a real manly man-type man to sign bills into law or veto ’em. Woman can’t wield those pens without a man to help!

        • sparks

          I have one which is worn like a ring with a curved blade, used to carry and cut bundles. It was a nice accessory, wear 8 of them with the right clothes/haircut and you looked like you stepped out of a Mad Max film.

          • advocatethis

            I used to have a job where I had to use one of those, but I’ll be damned if I can remember what the job is. This makes me feel old – that seems like something you wouldn’t forget.

            • sparks

              I got mine working for a newspaper. I also got a lot of slugs, which made parking considerably cheaper at the university.

        • dmsilev

          Huh. I always thought it was to allow cats to enjoy zip-lining.

          • Avattoir

            Me too! But mine kept falling off, and, it turns out, there limits to how much they can do that before, you know …

            The little claws were plenty strong enough, but she – all of her – kept getting distracted.

        • catclub

          Thanks!

      • Snarki, child of Loki

        We’d tell you the REAL use of the hook tool, but then we’d have to kill you. With the hook tool.

      • altofront

        It’s a small tool for winning ontological arguments quickly.

  • and “freedom of speech” requires restricting speech. What, you thought these provisions actually mean what they explicitly say?

    My copy of the second amendment doesn’t mention the militia either.

  • Nick056

    It helps if you think Roberts’s gloss on the Constitution is actually, you know, the Constitution. Feckless moron.

  • LosGatosCA

    IANAL, but the rule I’ve found to be the most useful in understanding 90+% of judicial determinations is this:

    It depends on whose ox is being gored. And it’s updated corollary: follow the money.

    Or as I learned during my time at GE, and see validated everyday in the wars on drugs/terror:

    Here’s our list of excuses (for the little people) – for our friends we can do anything.

    • In 2000, it depended on whose Gore was being oxed.

      • Vance Maverick

        Oxi’ed?

        • [Internally] How the fuck did I miss that?

          [Externally] Good one!

  • advocatethis

    Forget it Scott, it’s The Corner.

  • dilan

    I see Scott is doubling down on his stupid position.

    A penumbra is a shadow. There’s nothing wrong with penumbras in constitutional interpretation generally, but if the shadow of the Third Amendment, which is a narrow provision dealing with quartering soldiers in homes, extends anywhere near contraception, that means that you have a tiny, narrow specific right with a gigantic shadow which actually creates a generalized widespread right to privacy.

    An example of a penumbra would be arguing that because you have a constitutional right to not be cruelly and unusually punished (i.e., as a sentence for your offense), you also have a right not to have similar treatment inflicted upon you in pre-trial detention before conviction. That sort of thing is perfectly fine.

    But that doesn’t mean you can just say “this right covers vaguely similar ground to the right I want to establish, therefore I will just make up a penumbra”.

    You could do the same thing the other way. Why can’t the penumbra of the free exercise clause extend to create a constitutional exemption from any law that requires conservative Christians to not discriminate against people they don’t like? The answer is because penumbras have to be tied to the underlying right, and the underlying free exercise right neither historically nor logically extends that far.

    And unfortunately, as much as I think Griswold is a perfectly good result, that’s also true of the constitutional provisions Douglas cites. He didn’t care– because he was an unqualified hack and had no legal acumen.

    • Scott Lemieux

      doubling down on his stupid position.

      because he was an unqualified hack and had no legal acumen.

      In addition to the fact that when it comes to Douglas’s background and abilities you don’t have the slightest idea what you’re talking about, before calling him an imbecile it would help if you understood his argument, which you still don’t.

      • joe from Lowell

        I stumbled across the following principle when reading gun-nut pieces about the Second Amendment:

        If you think that there is a single, obvious, right answer to Constitutional questions that the most prominent legal minds in the country have been arguing about for decades, and that all the other positions are stupid, you don’t understand the question, the issue, and the range of considerations that need to go into it.

        The entirety of privacy-rights case law dating back to Griswold, you see, is, like, totally thtupid, man. That’s the only possible reason dilan could disagree with it.

        • Rob Patterson

          I kind of love that he explained that “a penumbra is a shadow”. Thanks man!

        • Scott Lemieux

          The entirety of privacy-rights case law dating back to Griswold, you see, is, like, totally thtupid, man. That’s the only possible reason dilan could disagree with it.

          What makes this particularly funny is that the allegedly unassailable rock upon which Dilan thinks the right to privacy should be erected is…substantive due process. First, if you read Harlan’s opinions they rest on an analysis very similar to Douglas’s — a right to privacy is inferred from the special status of marriage, precedents, more specific constitutional guarantees, etc. (He even cites the Third and Fourth Amendments! Because they are obviously relevant to the liberty interest at stake in this case!)

          But without the magic words “substantive due process,” a structuralist analysis would be subject to abuse — a hypothetical judge could read the free exercise clause to go far beyond Oregon v. Smith even. And, of course, SDP could never be used badly; it could never be cited to, say, stop Congress from regulating slavery in the territories or stop states from regulating hours and wages.

    • Aimai

      This really isn’t how reading works, or how writing works, for the matter of that. There is s something underlying the Constitution, something that ties the provisions together, or the document wouldn’t make any sense going forward. When we try to understand why certain things matter: the home, security, physical safety from torture, rights that inhere in persons not in statuses we come down to realizing (or we should realize) that the English and our revolutionary fore fathers were concerned about (among other things) bodily autonomy, independence, safety of the physical person–things that matter to the human being in their physical body. Quartering soldiers is a danger to the lives and bodies and personal integrity of the members of the household. Its not just some extra cost. It has other aspects. Its perfectly legitimate to inquire into the basic threads that tie these the amendments together to try to find an interpretive model going forward. Anthropologists and literary scholars do it all the time.

      • Davis X. Machina

        It’s perfectly legitimate to inquire into the basic threads that tie these the amendments together to try to find an interpretive model going forward. Anthropologists and literary scholars do it all the time.

        And woodcutters:

        Rabbi Hillel:”That which is hateful to you, do not unto another: This is the whole Torah. The rest is commentary — go study.”

        • Aimai

          I was thinking of Mary Douglas’s study of Leviticus, actually, where she brings all the laws together and tries to discern the underlying principles that would make it possible to generate a rule for a new plant, or animal, or practice to determine whether it would or would not be kosher.

          • Vance Maverick

            I took a few undergrad anthro classes at Yale in the mid-80s (including one from Keith Basso), and your occasional comments in this vein are a bit like time-travelling (in a good way, I assure you!).

            • Aimai

              He was a fun teacher. So much livlier than the other dead wood there. We must have overlapped. I was there, TA’ing (though not in Basso’s class) from 82-85 (ish)

              • Vance Maverick

                That’s when I was there (’82-’86). I wasn’t a good student, I’m afraid, but I do remember him as engaged and engaging.

          • DrS

            There was a sci fi short story I vaguely recall from the 80s that involved leviticus and genetic engineering. More along the lines of creating ways around the dietary laws, pigs that chewed cud, and such.

            IIRC, the ultimate end product was artificially grown fake human meat.

            • Leviticus didn’t enter into it, but Arthur C. Clarke’s 1964 story “Food of the Gods” had a similar punchline.

      • This is particularly true because the Constitution is based on, and according to the Ninth Amendment does not implicitly supplant, the common law.

        Which rests precisely on the interpretive notion/fiction that “the law is out there” and has to be discovered by application of principles to particular cases.

        Dilan appears to imagine that the Constitution is a civil code.

    • elm

      A few points:

      1. Shadows can definitely be bigger than the object casting it. Go out sometime a little bit before sunset and stand with your back to the son. Look at how long your shadow is!

      2. The penumbra of the right to privacy is being formed by the 2nd, 3rd, 4th, and 5th Amendments. It’s not that each amendment alone is creating this giant right, but that all of them together are doing it. So it doesn’t really matter how much bigger the shadow is than the 3rd Amendment. Indeed, this is Scott’s whole point in that part of the post.

      3. Penumbras is being used as a metaphor. Douglas doesn’t mean it literally. You do realize that, even if we ignore points 1 and 2, describing how the 3rd Amendment could not literally cast a shadow large enough to contain the right to privacy and therefore Griswold sucks and Douglas is stupid is a high school debate club maneuver? Or, maybe a stoned college kid discussing things late at night in his dorm room maneuver? Ain’t it odd that these two types of rhetoric often overlap?

      • Scott Lemieux

        2. The penumbra of the right to privacy is being formed by the 2nd, 3rd, 4th, and 5th Amendments. It’s not that each amendment alone is creating this giant right, but that all of them together are doing it. So it doesn’t really matter how much bigger the shadow is than the 3rd Amendment. Indeed, this is Scott’s whole point in that part of the post.

        It is painfully clear from Dilan’s response that — just like pretty much everyone using the 3rd amendment HOT TAKE — he still doesn’t grasp this very elementary point.

      • rea

        Penumbras is being used as a metaphor. Douglas doesn’t mean it literally.

        Robert Burns: “My love is like a red, red rose.”

        Dilan: “Liar! She hasn’t got a single petal!”

      • patrick II

        Shadows do not have sharp edges. A shadow’s penumbra is the fuzzy gray edge of the shadow that is neither fully in light or fully in shadow. Shadows have penumbras because light exhibits qualities of being both a wave and a particle. The wave quality creates the penumbra by spreading out as it moves away from whatever is casting the shadow. Therefore, as a legal metaphor, a penumbra is neither entirely defined(black within the shadow or strict language of the law) or undefined (white being totally outside of the shadow or the strict language of the law), but exists in the gray edge of the law — like the gray area at the edges of a shadow.
        In Douglas’ case, he was not only looking at the shadow, but considering the shape of the object (the constitutiion)casting that shadow.

        • Snarki, child of Loki

          You don’t need wave/particle duality to get a penumbra. Just a light source with a finite size.

          Besides, it’s a metaphor. Or maybe not a metaphor, but it’s like a metaphor. Or is that too meta for this post?

          • patrick II

            I over-explained. You need the wave part. Just particles traveling in a straight line leaves a sharp edge. The Physics Classroom explains.

            • Snarki, child of Loki

              You’re in the penumbra of a solar eclipse, when the moon blocks part of the sun. No waves required.

              • DrS

                Nm

              • Penumbras are because of the nature of light. The nature of light is to be both a particle and a wave.It follows that penumbras are caused by the fact that light is both particle and wave.

                • The Temporary Name

                  If half of a light is occluded you get less of it. It doesn’t really matter if it’s wave or particle as long as it’s something you can have more or less of.

      • Ahuitzotl

        high school debate club maneuver?

        more of an idiot on facebook maneuver nowadays

    • Joe_JP

      the shadow of the Third Amendment

      Privacy is a shadow of numerous provisions; the 3A is cited by you repeatedly as some sort of joke, like those that think “penumbra” and “emanation” are funny sounding words.

      As Scott notes, Douglas expands on this other places, including in personal writings. For instance, Poe v. Ullman:

      “Liberty” is a conception that sometimes gains content from the emanations of other specific guarantees (NAACP v. Alabama, 357 U. S. 449, 357 U. S. 460) or from experience with the requirements of a free society.

      Griswold cites an early opinion, Boyd v. U.S., as well:

      They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offence

      The earlier opinion applied the 4th and 5th Amendments and in effect held their “penumbra” and/or “emanations” to protect a broad right to privacy. Others noted this too, including Brandeis in Olmstead v. U.S. and a few other places.

      Why can’t the penumbra of the free exercise clause extend to create a constitutional exemption from any law that requires conservative Christians to not discriminate against people they don’t like? The answer is because penumbras have to be tied to the underlying right, and the underlying free exercise right neither historically nor logically extends that far.

      The underlining right here is free exercise and “historically” and “logically” there is an argument to be made that this includes an ability to do acts that would otherwise be criminal except that they are religious obligations. The problem here is both that there is no special rule here for “conservatives” and public discrimination is a conflicting state interest. (Cantwell — beliefs absolute/acts cannot be).

      Logic and history can also be used to point out that various rights in the BOR involve a sphere of privacy, including those involving marital intimacies. See, e.g., Justice Harlan noting the 3/4A “embraces the concept of the privacy of the home” and privacies of family life. Not the “3A” alone though even there quartering is limited out of respect for private spaces. But, separation of the military and civil power is also present. OTOH, various provisions combined make a better case. See Aimai below or here.

      But, if you want to rest of SDP alone, be my guest. Seems more useful to provide some guideposts there, including the enumerated text that various opinions noted overall protect privacy, particularly in the home or one’s own person. Unjustly raiding bedchambers was also a basic “historical” concern too. Anyway, the law doesn’t rest on one opinion. It builds off a bunch as times go by.

      Finally, he is not an “unqualified hack.” The usual criticism is that he was lazy and/or didn’t feel a need to truly show what he thought obvious. The one showing “hackish” tendencies here is you including using the usual “good result, not actual constitutional law” trope.

      • Lee Rudolph

        It builds off a bunch as times go by.

        And, of course, the fundamental things apply.

        • LosGatosCA

          As time goes by

          • LosGatosCA

            Stupid me – didn’t read the block quote.

            Here’s looking at you, kid.

    • because he was an unqualified hack and had no legal acumen.

      Leave it to Dilan to show that the adage “It takes one to know one” is superseded by “Projection is a hell of a drug.”

      • Scott Lemieux

        It’s amazing — Dilan is a much keener legal mind than William O. Douglas, and yet 1)he’s botched his analysis of Douglas’s most famous opinion in multiple different ways, and 2)never sticks around in threads to defend his views after they’ve been challenged by people who know what they’re talking about.

        • What I find truly amusing is his coupling this with 1) expertise fetishism and 2) ignoring of any expertise than his own.

          So we’re to pretend that he is reasonable competent in these legal discussions because he’s a lawyer (contrary to his actual comments) and yet his routinely dismisses people with actual expertise (e.g., statistics) because he has some wacky line he wants to push.

  • djw

    I see the National Review is now publishing this guy.

  • humanoid.panda

    Just out of curiosity, could you, Scott (or anyone else) post something about that new scholarship about the 13th Amendment for those among us who are not constitutional scholars?

    • Joe_JP

      The scholarship is generally supportive of an open-ended view of “slavery” and “involuntary servitude,” with the article cited referencing how “slavery” was used in the Revolutionary Era when people thought their right to self-government was infringed. This would include more expansive federal power under the amendment’s second section.

      For instance, Prof. Akhil Amar noted child abuse could be a form of slavery, the 13A has been used in support of broader rights of workers, positive rights like health insurance (cited in the article) can be seen as protecting people from being a slave to health problems and essential for equal citizenship, Confederate flags are seen as “badges of slavery” that are illegal on 13A grounds and various political rights (e.g., freedom from voter id laws) can be seen as essential for freedom.

  • CrunchyFrog

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

    This was another example of the “originalists” Scalia et al ignoring parts of the Constitution that were inconvenient. In this case, Scalia observed in Bush v Gore that there was no “right to vote” explicit in the Constitution, as though somehow that meant that voting rights weren’t essential for the entire reason for being of the USA dating back to the Declaration.

    • Scott Lemieux

      Ackerman on Bork’s description of the 9th Am. as an “inkblot” is priceless:

      The puzzle here is why Bork should find the text [of the Ninth Amendment] “enigmatic.” It seems, almost preternaturally, to be written with him in mind. What Bork is up to is precisely to use “the enumeration in the Constitution, of certain rights” to “disparage” the idea that there are other constitutional rights of fundamental importance. I especially admire the Framers’ choice of the word “disparage.” I can think of no better word to describe Bork’s general tone.

  • CrunchyFrog

    Then there is the second amendment. If you take their interpretation literally then the government cannot ban any form of weapon – be it a hand grenade, a bazooka, or a nuclear warhead. Of course, they don’t actually challenge laws banning those things, but the line they have drawn saying that state governments can’t ban semi-automatics but can ban other weapons was invented completely out of thin air by the Fascist Five (version 2).

  • liberal

    Anyone here ever read Dworkin’s attack on originalism?

    Amusingly, one of Dworkin’s biggest philosophical enemies in recent times was Brian Leiter. Both were left-of-center, but philosophically Leiter thought the SC is basically just a super-legislator and that the justices just vote according to their political preferences (IIRC); Dworkin thought there were actual principles involved.

  • DAS

    I actually can see certain liberals viewing the constitution in terms of “tools” rather than “rules”, but I hardly see any conservative (at least in terms of the modern American conservative movement) who considers the constitution (or any law) as a “rule”. It is to some degree a matter of a certain Christian antinomian strain in the American right wing, but I would say (American) conservatives view the consitution (and laws in general) as “signs” or “signals” rather than “rules” or “tools”.

  • Joe_JP

    “freedom of speech” requires restricting speech.

    Does the writer oppose all libel, child porn, trademark, threat and so forth law, or what? Scalia et. al. are not Hugo Black either.

    • Scott Lemieux

      And even Black wasn’t Black.

      • Davis X. Machina

        Ah, but was White White?

  • burnspbesq

    Not to put too fine a point on it, but who the hell is Fred Schwartz and why should I give even a tiny fraction of a damn what he thinks?

  • Matt

    They devise new uses for dusty old buggy whips like the 13th Amendment,

    I’m guessing this is the vestigial remnant of a long paragraph about how wingnuts are now the REAL slaves, just because they aren’t allowed to spit on gay people anymore – or possibly an even moar unhinged “the 13th and 14th don’t count because Reconstruction” neo-confederate rant.

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